Citation Nr: 9817251 Decision Date: 06/04/98 Archive Date: 06/15/98 DOCKET NO. 97-01 059 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of stroke, liver damage, and heart damage. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from December 1941 to October 1945. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has developed the disabilities at issue due to medication prescribed by VA. He contends that he was given two prescriptions for theophylline medications under different names, and was advised by VA to take both at the same time. The veteran asserts that as a result of overmedication he had a stroke and sustained liver and heart damage for which compensation should be awarded under the provisions of § 1151. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted a well- grounded claim for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of stroke, liver damage, and heart damage. FINDING OF FACT The claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of stroke, liver damage, and heart damage is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of stroke, liver damage, and heart damage is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The record shows that the veteran was treated at a private medical facility beginning on May 9, 1994. The veteran was seen with complaints of respiratory problems and was found to have theophylline toxicity. It was noted on admission that the veteran had recently had his theophylline changed at the VA hospital and did not realize he was taking two theophylline medications simultaneously. During hospitalization, the veteran’s theophylline level was adjusted, his condition improved, and he was discharged from the hospital on May 14, 1994. The veteran was rehospitalized at another facility in late May with multiple diagnoses. It was noted by history that the veteran had had some cardiac arrhythmias that were felt to be due to the theophylline toxicity. On admission, the veteran had complaints of abdominal pain and diarrhea, which were also felt to be due to theophylline toxicity. The veteran was discharged in mid-June 1994 and entered a VA facility. On VA hospitalization in June 1994 and again in October- November 1994, there were no pertinent findings with respect to the disabilities for which compensation is sought. In April 1997, a VA physician was asked to render an opinion with respect to the veteran’s claim that he has disabilities as a result of theophylline toxicity. After reviewing the pertinent private and VA medical records and examining the veteran, he opined that there was no relationship between the disabilities claimed by the veteran and the theophylline toxicity. Criteria The threshold question to be answered in this case is whether the appellant has presented a well-grounded claim, i.e., one which is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). As will be explained below, the Board finds that the claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of stroke, liver damage, and heart damage is not well grounded. In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the Court of Veterans Appeals (Court) invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remained valid. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death were service connected. 38 C.F.R. § 3.358 and the regulation implementing that statute, provides, in pertinent part, that, in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury in which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition in which the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization, etc., was authorized. In determining whether such additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical, or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of such existing disease or injury and not merely coincidental therewith. 38 C.F.R. § 3.358(b), (c). The new 38 C.F.R. § 3.358(c)(3), provides in part: 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. "In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis)...; of incurrence or aggravation of a disease or injury in service (lay or medical testimony),...; and a nexus between the in-service injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). The Board points out that for the purposes of determining whether a claim is well grounded, it must presume the truthfulness of the evidence, "except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). Thus, in the context of a claim under 38 U.S.C.A. § 1151, a well-grounded claim in this case would include medical evidence tending to show that residuals of stroke, liver damage, and heart damage resulted from the use of medication prescribed by the VA. Analysis The veteran contends that the claimed conditions are the result of the medication he was given by VA, but the record shows no relationship between the claimed conditions and the prescribed medication other than the veteran’s contention. The veteran has offered no medical data or opinion to support his view that he currently has residuals of stroke and liver and heart damage, which resulted from theVA prescribed medication. It is also not shown by medical data or opinion that the claimed conditions were permanently aggravated by the drug. The Board has reviewed the record and finds no private or VA medical data or opinion to support the veteran’s claim that he currently has disability resulting from his VA treatment. In fact, there is of record a competent medical opinion to the contrary. The VA examiner in April 1997 found no relationship whatsoever between the claimed conditions and the medication prescribed by VA. While the physician noted that the toxicity produced some symptoms, those symptoms were said to have been acute and to have resolved with treatment. He found no additional disability resulting from the theophylline toxicity. Thus, the present record contains no competent medical evidence of the presence of any chronic disablement resulting from drug therapy as claimed by the veteran. The Board has considered the veteran's contentions with respect to the alleged relationship; however, for the veteran to say that there is a medical relationship is not probative, since he is not a medical expert and is not competent to provide evidence that a prescribed medication caused a specified additional disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). In the absence of medical evidence or opinion indicating that the medication prescribed by VA in 1994 caused additional disability claimed as residuals of stroke, liver damage, and heart damage, the claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 is considered not well grounded. Although the Board has considered the veteran’s claim on a ground different from that of RO, which denied the claim on the merits, he has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In light of the implausibility of the appellant’s claims and the failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny his appeal for compensation under § 1151. The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any additional medical evidence that has not already been obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed.Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997). ORDER The veteran not having submitted a well-grounded claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of stroke, liver damage, and heart damage, the claim is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -