Citation Nr: 9834165 Decision Date: 11/19/98 Archive Date: 11/24/98 DOCKET NO. 97-16 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to compensation for cardiovascular disability secondary to left knee arthroplasty with above-the-knee amputation, for which benefits under the provisions of 38 U.S.C.A. § 1151 have been awarded. 2. Entitlement to service connection for cardiovascular disability secondary to residuals of pleural cavity injury with right hemothorax, pneumonia, and restrictive lung disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Alberto H. Zapata, Associate Counsel INTRODUCTION The veteran served on active duty from December 1944 to February 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 1995 and November 1996 rating decisions of the Department of Veterans Affairs (VA) Medical and Regional Office (M&ROC) in Fargo, North Dakota. The Board notes that in a statement in support of his claim dated in October 1997, the veteran withdrew his appeal with regard to entitlement to special monthly compensation. Accordingly, that issue is no longer in appellate status. REMAND The evidence in this case shows that the veteran was treated in November 1986 for internal left knee derangement, and arthroscopy and excision of the posterior medialis meniscus was performed. The veteran then underwent a total left knee replacement in 1987. He did not require further surgery until March 1995, when a left knee arthroplasty revision was performed following excessive wearing of the old appliance. Soon thereafter, however, the veteran experienced severe infection of the knee and sepsis developed requiring hospitalization and further surgery, including irrigation and debridement. The arthroplasty revision and hospitalization for treatment of the post-operative infections took place at a VA medical center. In a rating decision dated in February 1996, the M&ROC granted disability benefits under 38 U.S.C.A. § 1151 for aggravation of the left knee arthroplasty due to sepsis. The infection proved to be insidious, and a left above the knee amputation was eventually performed in June 1996. Special monthly compensation for loss of the left leg and left knee arthroplasty, with amputation of the left leg, and a temporary total rating for convalescence were granted in a November 1996 rating decision. The veteran contends, essentially, that his cardiovascular condition is etiologically related to his service-connected left above-the-knee amputation. In the alternative, the veteran argues that his cardiac condition is etiologically related to his service-connected residuals of his pleural cavity injury. At his June 1997 personal hearing, the veteran testified that he suffered from cardiovascular disease, in the form of hypertension, prior to his left above-the-knee amputation. He testified that physicians were of the opinion that he had suffered a mild heart attack in December 1995, before the amputation was performed. In an addendum written in August 1996, a VA physician stated that he had reviewed the veteran’s EKGs up through September 1993 and that it was his opinion that the veteran had never had a myocardial infarction in September 1995. The physician also opined that after reviewing the veteran’s medical records, it was his opinion that there was no indication that the veteran had increased symptoms of primary cardiovascular disease. However, the veteran also testified at his personal hearing that since the amputation, he had had to undergo coronary by- pass surgery due to worsening of his coronary artery disease. There are no medical reports pertaining to the veteran’s coronary bypass surgery currently associated with the claims file. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations. 38 C.F.R. § 3.310(b) (1998) (emphasis added). In an opinion dated February 11, 1997, VA’s General Counsel stated that although a disability for which compensation is payable under 38 U.S.C.A. § 1151 is not a service-connected injury within the literal meaning of 38 C.F.R. § 3.310, compensation may be paid for any disability which results from a section 1151 injury or disease. Accordingly, VA’s General Counsel held that disability compensation may be paid, pursuant to 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151. VAOGCPREC 8-97. The Board is of the opinion that further development, to include obtaining medical records pertaining to the veteran’s reported coronary bypass surgery, is warranted in order to ascertain whether his cardiovascular disability has/had worsened since his 1996 left above the knee amputation. If such a finding of an increase in severity of cardiovascular disability is established, then 3.310(b) and the law cited above enable compensation for such cardiovascular disability increase, as proximate causation will have been established by operation of law. The Board notes that 38 C.F.R. § 3.310(b) only applies a presumption for compensation for cardiovascular disability developing (or chronically worsening) after an amputation at or above the knee. Thus, with respect to his alternative theory, the veteran must still supply medical evidence establishing a link between current cardiovascular disability and his residuals of pleural cavity injury, with right pneumothorax, pneumonia, and restrictive lung disease. The veteran will be afforded an opportunity to supply such nexus evidence in this remand. For all these reasons the case is REMANDED to the M&ROC for the following actions: 1. The veteran should be requested to provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his cardiovascular condition since his 1996 left above-the-knee amputation, including with regard to his coronary bypass surgery. With any necessary authorization from the veteran, the M&ROC should attempt to obtain copies of pertinent treatment records identified by the veteran which have not been previously secured. All records obtained which are not currently of record should be associated with the claims folder. 2. The veteran should be afforded the opportunity to provide medical evidence establishing a link between his cardiovascular condition and residuals of his service-connected residuals of pleural cavity injury, with right hemothorax, pneumonia, and restrictive lung disease. 3. The M&ROC should arrange for the veteran to undergo a comprehensive medical evaluation to determine the severity of his cardiovascular disability. All indicated studies, including diagnostic imaging should be performed and all findings should be set forth in detail. The claims file and a copy of this REMAND must be made available to the examiner prior to the requested examination. The examiner is requested to indicate in his/her report that review of the claims folders and the information contained in this remand was conducted. The examiner is requested to provide an opinion as to the nature of the veteran’s current cardiovascular disability, and the examiner is also requested to render an opinion as to whether it is at least as likely as not that the veteran’s cardiovascular disability has chronically worsened, at any point in time since his June 1996 left above-the-knee amputation. Rationale for any opinion expressed should be fully explained. If the examiner is not able to render any requested opinion for the reason that it is medically infeasible, the examiner should so state in the examination report. 4. The M&ROC should review the examination report resulting from the above-requested development and assess compliance with the above instructions. If the M&ROC determines the examiner did not adequately address the instructions contained in this REMAND, the report should be returned to the examiner for corrective action. 5. The M&ROC should then undertake any further indicated development and readjudicate the claim for entitlement to compensation for cardiovascular disability secondary to left above-the-knee amputation and entitlement to service connection for cardiovascular disability secondary to residuals of pleural cavity injury, with right hemothorax, pneumonia, and restrictive lung disease. The M&ROC should consider VAOGCPREC No. 8-97, (February 11, 1997), and 38 C.F.R. § 3.310(b), as indicated. 6. If the benefits sought on appeal are not granted to the veteran’s satisfaction, the M&ROC should issue a supplemental statement of the case and the veteran and his representative should be provided with a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the M&ROC. NANCY S. KETTELLE Acting Member, Board of Veterans' Appeals 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 Appeals for Veterans Claims. 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) (1998). - 2 -