Citation NR: 9604999 Decision Date: 02/29/96 Archive Date: 03/12/96 DOCKET NO. 91-42 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: North Carolina Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse; [redacted]; [redacted]; and [redacted] ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from September 1967 to September 1970. The appellants are his parents, who filed a claim for the benefits noted on the title page in January 1990, on behalf of the veteran’s minor child. The child was born in May 1977. This appeal to the Board of Veterans’ Appeals (Board) stems from rating decisions of the Winston- Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (formerly § 351). Despite the fact that the statement of the case and supplemental statements of the case refer to an issue of service connection for the cause of death, no such claim has been filed by the appellants in this case. This case was last before the Board in July 1992 , at which time it was remanded by letter to the RO to be held in abeyance pending resolution of the VA’s appeal in the case of Gardner v. Derwinski, 1 Vet.App. 584 (1991), in which the United States Court of Veterans Appeals (Court) invalidated 38 C.F.R. § 3.358(c)(3) which had previously governed the adjudication of claims under 38 U.S.C.A. § 1151. The Court’s decision was affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed.Cir. 1993), and was subsequently appealed to the Supreme Court of the United States (Supreme Court). On December 12, 1994, the Supreme Court issued its decision in Brown v. Gardner,_U.S._, 115 S.Ct. 552 (1994), affirming the earlier decisions of the Court and the United States Court of Appeals for the Federal Circuit. On March 16, 1995, amended regulations were published deleting the fault or accident requirements of 38 C.F.R. § 3.358(c)(3), in order to conform the controlling regulation to the Supreme Court’s decision. The Board's stay on the adjudication of claims affected by the Gardner decision having been lifted, this case is now before the Board for further consideration. REMAND It is contended, in essence, that the veteran died because VA prescribed an excessive dose of Theophylline for his asthma and waited five days to inform family members of the erroneous dosage of medication. The Board notes that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The pertinent provisions of 38 U.S.C.A. § 1151 (West 1991) (formerly § 351) have not changed since the Supreme Court issued the Gardner decision. The provisions of 38 C.F.R. § 3.358(c)(3) (1994) have been amended to read as follows: Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. 60 Fed. Reg. 14222 (1995). The death certificate shows that the veteran died on December 18, 1989, at age 42. Myocardial ischemia is reported as the immediate cause of death. No underlying or contributory cause of death is listed. Records from a private medical facility reflect that the veteran was hospitalized during August 1986. It was indicated that he had been hospitalized about one month before for acute respiratory failure and subsequent ventilatory support due to acute asthma. The diagnosis during current hospitalization was respiratory failure with coma secondary to acute asthma. Subsequent private medical records disclose that the veteran was admitted to hospitalization for treatment of episodes of acute bronchial asthma in July 1987, September 1987, August 1988 and October 1988. He presented in each instance in marked respiratory distress. The veteran was admitted to VA hospitalization in October 1988. It was indicated that he had run out of medication and had developed bronchial spasms and increased dyspnea. On admission, he appeared tachypneic and dyspneic. The diagnosis was bronchial asthma, in moderately severe exacerbation. VA pulmonary function testing was performed in March 1989. The impression was that the veteran had no obstruction and very mild restriction. A billing statement from a medical practice indicates that the veteran was rendered emergency service on December 18, 1989. The diagnoses were respiratory failure/arrest, acute and cardiac arrest, acute. In view of the appellant’s allegations that the veteran died as a result of medical treatment rendered by VA, the RO requested the Director of a VA Medical Center to conduct an investigation. In a May 1990 letter, the Director remarked that the veteran had suffered acute myocardial ischemia. It was observed that Theophylline toxicity was known to include cardiac arrhythmias. It was pointed out that it would be speculative to assume that Theophylline toxicity was a direct proximal cause of myocardial disease in the veteran’s case since a patient with bronchial asthma could suffer similar problems due to the hypoxemia induced by the patient’s respiratory difficulties. The Director noted, however, that it was reasonable to suggest that Theophylline toxicity may have had a contributory effect in exacerbating the myocardial ischemic disease. The Director stated that an investigation board would examine the appellant’s allegations and the potential implications regarding quality of care rendered to the veteran. An investigation board considered various items of evidence, including a therapeutic drug monitoring report, dated December 12, 1989; progress notes, dated December 15, 1989; a transcript of testimony provided by a nonphysician VA employee; and a transcript of testimony provided by a VA physician. The investigation board entered the following findings: 1. The veteran was taking 1,800 mg per day of Theophylline prescribed by a private physician when admitted to a VA medical center on October 18, 1988. 2. The veteran was discharged from the VA medical center on November 7, 1988 with prescriptions for Theophylline-1,500 mg per day, Prednisone-20 mg, Albuterol Solution, Sodium Chloride Solution, Albuterol Inhaler, and Magnesium/Aluminum Hydroxide Gel. 3. The veteran had been on this dosage for over a year. 4. On return to the pulmonary clinic on December 11, 1989, Theophylline levels were reported to the physician as “high.” 5. An employee of VA’s Medical Administration Service could not recall or remember trying to contact the veteran or his family. 6. There were no notes in the veteran’s chart or reports of contact regarding the actions of an employee of VA’s Medical Administration Service. 7. The VA physician stated that Theophylline would not have caused the myocardial ischemia reported as the cause of death. 8. Progress notes of December 15, 1989, showed that the VA physician tried to contact the veteran but was unsuccessful. 9. There was a 4 day delay from report of laboratory results until the veteran was contacted. 10. An inquiry of the hospital where the veteran was pronounced dead revealed that an autopsy had not been performed. The investigation board reached the following conclusions: 1. Due to the progression of the veteran’s primary diagnosis (bronchial asthma), the prescribed dose of 1,500 mg of Theophylline was needed to control his attacks. 2. The Theophylline level reported was high but not out of line with the veteran’s condition. 3. Without documentation, it could not be ascertained as to the date or time when the employee from MAS or the VA physician tried to contact the veteran or family members. 4. Without an autopsy, it could not be concluded that the prescribed medication caused the veteran’s death. 5. The veteran died of respiratory failure/arrest, acute, brought on by an acute asthma attack to which he was at a foreseeably high risk. Of record is a June 1990 statement from the VA Medical Director. It was related that the investigation board did not substantiate the claim that the administration of Theophylline, the administered dosage of Theophylline, or the alleged failure of a VA physician to contact the veteran or his family had a direct and proximate relationship to the veteran’s death. It was stated that linkage of the veteran’s death to the administration and dosage of Theophylline was speculative and unsupported by written documentation. A hearing was held before a VA hearing officer in December 1990. Testimony was to the effect that VA, on December 11, 1989, prescribed the veteran Theophylline, 1,800 mg per day instead of 1,200 mg per day; further, that VA waited 5 days before contacting the veteran’s mother to inform her that the veteran had been prescribed an excessive dose of medication. Received at the hearing was a December 1990 statement from Daniel Gottovi, M.D., who remarked that the veteran apparently died of an arrhythmia as a complication of Theophylline toxicity, based on his review of VA medical data. The physician observed that the term, “myocardial ischemia,” which appeared on the death certificate, was the term suggested by the State Chief Medical Examiner’s Office in situations of natural death where the cause was not apparent. In another statement, dated in December 1990, Dr. Gottovi commented that he could not recall whether a blood sample for Theophylline was obtained at the time of the veteran’s death. He believed that Theophylline toxicity had apparently been documented by VA two days before the veteran’s death. He suggested that a supplemental death certificate would be appropriate indicating that the probable cause of death was arrhythmia secondary to Theophylline toxicity. Received in March 1991 was a December 18, 1989, report of an investigation conducted by the Office of the Chief Medical Examiner of North Carolina. The report indicates that the possibility of Theophylline toxicity was being explored and that a blood sample had been obtained from the veteran. A toxicology report states that no Theophylline was detected in the blood. We have set forth the evidence of record here in considerable detail. There are several matters still requiring clarification. The power of attorney to the North Carolina Department of Veterans Affairs is dated February 1990. In June 1991, R.K. Mundy, Attorney at Law submitted evidence to the RO on behalf of the appellants. His communication raised a question as to whether he was intending to represent the appellants before the RO and the Board, in addition to representing them in what was then indicated to be a potential Federal Tort Claim. This should be clarified. In any event, in December 1991 the Board was informed by the District Counsel at the RO that a Federal Tort Claim in this matter was pending. Based on a number of precedent decisions of the Court concerning appropriate evidentiary development, the Board believes that in a case such as this, it is in order to have copies of all material filed in connection with the Federal Tort Claim associated with the claims folder. The case is Remanded for the following action: 1. Copies of all records and material which are currently part of the pending Federal Tort Claim concerning the veteran’s death, or with resolution of that claim, if it has been resolved at this time, should be obtained and associated with the claims folder. 2. The RO should ascertain from both appellants whether they wish to continued to be represented in this matter by the North Carolina Department of Veterans Affairs or whether they are to represented before the RO and the Board by R.K. Mundy, Attorney At Law. If they choose Mr. Mundy, he should be accorded an opportunity to submit any argument he desires in the appellants behalf. When the above development has been completed, the case should be reviewed by the RO. In the event the benefit appealed for is not granted, the appellants and their representative should be furnished with a supplemental of the case and afforded a reasonable time to reply thereto. Thereafter the case should be returned to the Board for further consideration, if in order. No action is required of the appellants until notified. The purpose of this remand is to procure clarifying data. BRUCE E. HYMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -