Citation Nr: 0015968 Decision Date: 06/16/00 Archive Date: 06/22/00 DOCKET NO. 98-17 976A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for aggravation of lung disability due to treatment during VA hospitalization in October 1995, February 1996, and March 1996. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for aggravation of heart disability due to treatment during VA hospitalization in October 1995, February 1996, and March 1996. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from January 1954 to January 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for aggravation of heart disability due to treatment during VA hospitalization in October 1995, February 1996, and March 1996, is addressed in the REMAND portion of this action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's lung disability was permanently worsened due to VA hospitalization in October 1995, February 1996, and March 1996; this was not a necessary consequence of his coronary artery bypass graft (CABG) surgery. CONCLUSION OF LAW The criteria for the award of compensation for aggravation of lung disability as if it were a service connected disability have been met. 38 U.S.C.A. § 1151(West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran contends he has experienced permanent aggravation of lung disability as result of VA surgery and treatment during hospitalizations in October 1995, February 1996, and March 1996. Associated with the claims file are printouts of VA summaries of hospitalization in September and October 1995, which are very consistent with the facts as detailed and elaborated upon by various physicians, below. These printouts are explicitly marked "NOT AN OFFICIAL COPY." In a November 1996 letter, a VA physician in the Department of Cardiology at the Iowa City VA medical center wrote that he had been following the veteran for the last several months in the cardiology clinic. The veteran was described as status post coronary artery bypass, with a very complicated postoperative course and reduced left ventricular function. The veteran was noted to be excessively short of breath and very limited in his activities due to his excessive shortness of breath, which had been studied extensively by cardiology and pulmonary physicians. The veteran's primary problem, and the primary cause of his shortness of breath, was ascertained to be severe coronary artery disease with severely impaired left ventricular function. The veteran was limited by his shortness of breath, which occurred even at rest. The VA physician considered the veteran disabled to perform almost any function, including activities of daily living. In a written medical opinion dated in June 1998, Joseph A. Hill, M.D. Ph.D., stated that several processes were likely to be progressive given the nature of coronary disease and left ventricular function, and given the veteran's continued smoking. He stated he could not rule out that aspects of the veteran's care at the VA contributed to the veteran's difficulty breathing at rest and on exertion. However, he elaborated, given the number, severity, and duration of the other disease processes that affected the veteran's breathing difficulties, he concluded that that contributions of a nosocomial pneumonia and sternectomy were relatively minor. He emphasized that it was difficult to quantify the relative importance of the several contributors to the veteran's breathing problems. In his view, it was reasonable to surmise that the major components stemmed from pre-existing disease processes that were likely to have progressed during the history of his illnesses. He noted active disease processes in the veteran which were certain to contribute to his difficulty breathing included chronic bronchitis, emphysema, congestive heart failure, a possible element of chronic coronary ischemia, nosocomial pneumonia experienced during the February 14, 1996, to March 28, 1996, hospitalization at the Milwaukee VA medical center, and chest wall changes secondary to sternal wound dehiscence and ultimate sternectomy. In an August 1998 written opinion, a VA physician and physician's assistant wrote that although the veteran's shortness of breath was most likely a combination of chronic obstructive pulmonary disease, decreased diffusion capacity of carbon monoxide, decreased left ventricle function and chest wall changes secondary to removal of his sternum, "we are unable to quantify the contribution of each individual factor." They further asserted that it appeared that the veteran's respiratory capacity was limited by abnormal chest wall function, which had been supported by the results of his cardiopulmonary exercise test. The opinion is supported by a detailed factual background and analysis. An August 1997 opinion of a pulmonary physician is referenced to corroborate the opinion that there was impaired Vt/FVC resopnse to exercise, some of which was due to chest wall changes. The chest wall was noted to move abnormally during exercise. During a December 1998 VA examination, after review of the veteran's medical history and chest X-rays, and a physical examination, the diagnoses were chronic obstructive pulmonary disease with decreased respiratory capacity and hypoxia; continued tobacco abuse; and status post three vessel coronary arterial bypass graft for coronary artery disease. The examiner asserted that a sternotomy [sic] effectively changes the thorax from a closed structure to a less rigid one and therefore is a less efficient structure. The examiner opined that since the veteran's lungs were hyperinflated from his chronic obstructive pulmonary disease, any decrease in efficiency of ventilation could be subjectively quite significant. The examiner acknowledged that there were several other conditions contributing to any possible decrease in respiratory reserve, and opined that the estimated additional 23,000 cigarettes he had consumed since his heart surgery, the decrease in left ventricle ejection fraction, and the resulting congestive heart failure, were probably more contributory to the veteran's decline. The examiner asserted that the exact quantification and contribution of each of these multi-factorial conditions to his current status would be pure conjecture. In a May 2000 memorandum to the veteran's representative, Dr. Craig N. Bash, a neuro-radiologist, wrote in support of the veteran's claim. The memorandum reflects that Dr. Bash carefully reviewed the pertinent medical evidence of record. Dr. Bash's impression was that it was likely that the cause of the veteran's resting shortness of breath was his VA hospital acquired Serratia pneumonia and resulting sternectomy, both of which were secondary to the veteran's CABG surgery. In supporting this impression, Dr. Bash noted that the veteran had a ruptured sternal wire prior to leaving the Milwaukee VAMC on October 12, 1995, following his CABG surgery, and returned to the Milwaukee hospital with a sternal separation only four months post discharge, on February 15, 1996. Dr. Bash noted that during the last admission the veteran acquired his Serratia and sternectomy. Using a table, Dr. Bash compared the veteran's "baseline clinical status before and after his sternum removal operation," and asserted that the clinical record review illustrated that veteran was significantly less able to walk due to severe resting shortness of breath after the sternectomy. He asserted that it was unlikely that the following processes were causing his current severe shortness of breath, because these disease processes or risk factors had improved via surgical/medical treatments or had remained relatively static: 3 vessel disease, chronic obstructive pulmonary disease, ejection fraction, hypokinesis of the left ventricle, bronchitis, smoking, and congestive heart failure. Dr. Bash opined that it was likely that the cause of shortness of breath was the VA "hospital acquired Serratia Pneumonia and sternectomy both of which are secondary to his CABG surgery." Dr. Bash cited a medical treatise stating that Serratia had been found to cause surgical wound infections and cause osteomyelitis, and that most hospital- associated cases were associated with instrumentation of the respiratory tract. The treatise further stated that Serratia could cause cellulitis. Dr. Bash asserted that the veteran likely acquired his Serratia from the instrumentation procedures (sternal wires) he received during his October 5, 1995, coronary artery bypass graft surgery at the Milwaukee VA hospital. Dr. Bash noted that the veteran's Serratia was very serious and required prolonged mechanical ventilation in the intensive care unit. According to Dr. Bash, this situation resulted in hypoxia which required ventilation, which likely caused the underlying disease process to progress. Dr. Bash wrote that hypoxia was not good for a heart that is already compromised due to vascular disease or lungs that are compromised due to a history of chronic smoking. Dr. Bash stated that it was his opinion that the veteran's current shortness of breath was a direct result of his hospitalization for his CABG, which resulted in his Serratia Pneumonia and his sternotomy [sic]. He explained that both the pneumonia and the sternotomy [sic] likely caused a decrease in the veteran's pulmonary status and that this had resulted in the veteran's severe shortness of breath. Dr. Bash felt that his opinion was in agreement with a VA pulmonologist who in 1997 stated that "[t]he chest wall was observed to move abnormally during exercise... thus contributing to hypoxia..." Dr. Bash further opined that the veteran's post-surgical reduction in pulmonary function was also supported by his chest X-rays. According to Dr. Bash, the veteran's post- surgical chest films demonstrated a blunted left costophrenic angle which represented thickening, and this pleural thickening was a direct result of the surgical procedures, causing respiratory compromise. Copies of VA radiological chest reports dated in August 1995, September 1998, and February 1999 were associated with Dr. Bash's report, and Dr. Bash's stated specialty of neuro-radiologist is duly noted. Dr. Bash felt that the opinion of the VA physician who wrote regarding the veteran's condition in November 1996 was inaccurate because it was based on incomplete information. Dr. Bash asserted that the November 1996 physician's opinion was rendered without considering the information and diagnostic tests performed by a VA pulmonologist (whose earlier findings are referenced in the above-discussed August 1998 written VA medical opinion), and that the November 1996 opinion did not refer to any of the chest X-rays. Dr. Bash also criticized the June 1998 opinion Dr. Hill, stating that it was also inaccurate because it was based on inaccurate information. Dr. Bash felt that if Dr. Hill had before him all of the clinical records, the information and from a VA pulmonologist, and the chest X-ray reports, he would likely have been able to either rule out some factors or quantify other factors. On this basis, Dr. Bash disagreed with Dr. Hill's assertions that the contributions of a nosocomial pneumonia and sternectomy were relatively minor. Analysis Under 38 U.S.C.A. § 5107(a), all claimants seeking compensation, including those seeking compensation under section 1151, have the initial burden of showing that their claim is well grounded. Jimison v. West, 13 Vet. App. 75 (1999). For a claim to be well grounded under the pre- amendment version of 38 U.S.C.A. § 1151, the appellant must provide: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 12 Vet. App. 460 (1999). The Board has found the veteran's claim of aggravation of lung disability due to VA hospital treatment and surgery to be well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that the medical evidence of record suggests that the claim is plausible. The Board is satisfied that all available evidence necessary to render an equitable determination on this issue has been obtained. 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability, disability compensation shall be awarded in the same manner as if such disability or aggravation were service connected. In determining that additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on 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 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 existing disease or injury suffered as a result of hospitalization, medical or surgical treatment is compensable, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. 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. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(b),(c). The appellant is not required to show fault or negligence in medical treatment, Brown v. Gardner, 115 S. Ct. 552 (1994). (Although the statute was amended, effective in October 1997, to require negligence on the part of the VA, the veteran's case is not affected by this less favorable change in the law, since the veteran submitted his claim in October 1996. Where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should apply unless Congress provided otherwise or permitted the Secretary to do otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991)). In the present case, the medical opinions of record are to the effect that the veteran suffered an increase in lung disability as a result of the pneumonia and disease of the sternum contracted during hospitalization, and subsequent removal of his sternum, during the VA hospitalizations in question. The differences in the medical opinions of record regard the extent of the aggravation due to these causes, in the midst of several ongoing disease processes, rather than whether pulmonary ability was compromised due to the pneumonia, infection and removal of the sternum. The medical evidence further makes clear that pneumonia, infection and removal of the sternum are not necessary consequences of coronary artery bypass graft surgery. The medical evidence consistently shows that the veteran had infection, pneumonia, and removal of the sternum as a consequence of his coronary artery bypass graft surgery, and that this has aggravated his pulmonary disability to some extent. Among other medical opinions, a VA examiner's opinion, a medical opinion solicited by the veteran's representative, and VA treating physician's opinions, support the claim insofar as they show the veteran's multi-factorial pulmonary disability has increased as a result of residuals of the infection and pneumonia, to include removal of the sternum. Two of these opinions were based in part on physical evaluation of the veteran one or more years after removal of the sternum, and therefore are afforded significant weight. Dr. Bash explicitly compared the veteran's condition before and after the February to March 1996 VA hospitalization and surgery, and found that the veteran's pulmonary condition had objectively worsened after, and because of, the sternectomy. Even the June 1998 opinion of Dr. Hill lists nosocomial pneumonia experienced during the February 14, 1996, to March 28, 1996, hospitalization at the Milwaukee VAMC, and chest wall changes secondary to sternal wound dehiscence and ultimate sternectomy, as among the several "active disease processes in [the veteran] that are certain to contribute to his difficulty breathing." (Emphasis added). Accordingly, the claim for compensation pursuant to 38 U.S.C.A. § 1151, for aggravation of lung disability due to VA surgery and treatment during hospitalization in October 1995, February 1996, and March 1996, is granted. The Board acknowledges that, as discussed in the remand portion of this action, the medical evidence of record is incomplete. However, the Board finds the December 1998 VA examination results (to include a physical finding of a bony defect consistent with a sternectomy) and opinion, and other descriptions by VA and other physicians of the underlying medical records, as well as a physical finding of VA physicians that the veteran had breathing impairment due to chest wall changes which resulted from a sternectomy during February / March 1996 VA hospitalization and treatment, to be exceptionally credible and sufficiently informative regarding the contents of the unavailable hospital and treatment reports to allow a decision on the merits with respect to aggravation of lung disability by the Board at this time. Since the determination is a grant of benefits sought on appeal, the veteran has not been prejudiced by this approach. ORDER The claim for compensation pursuant to 38 U.S.C.A. § 1151, for aggravation of lung disability due to VA surgery and treatment during hospitalization in October 1995, February 1996, and March 1996, is granted. REMAND The veteran has contended that his heart disability has been aggravated as a result of VA treatment and surgery. The veteran's claim as certified upon appeal is a claim for compensation for additional lung and heart disability due to VA treatment and hospitalization. The Board has recast this as separate claims for compensation for aggravation of two separate disabilities, lung and heart, respectively, arising from the same course of VA treatment and hospitalization. Although the claim for aggravation of lung disability was adjudicated on the merits above, the current information of record pertaining to the veteran's claimed increase in heart disability is not sufficient for adjudication by the Board. Not associated with the claims file are several items of medical evidence referred to in rating decisions and written medical opinions of record. For example, with the exception of a November 1996 one-half page summary by a VA physician, none of the pertinent VA records of treatment and hospitalization during calendar year 1996 are associated with the claims file. A close examination of the May 2000 opinion of Dr. Bash, who had a certified copy of the claims file, creates a strong appearance that he did not have access to the original hospitalization and treatment records either, but instead relied on reports and opinions prepared by VA physicians who had reviewed the original records. The original medical records of the periods of treatment and hospitalization at issue in this case are, in contemplation of law, before the Secretary and the Board, and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is remanded for further development as follows: 1. All VA medical records and documents pertinent to the incidents upon which the veteran's claim is based must be associated with the claims file. This includes all hospital clinical records, surgical records (including the anesthesia record), nurse's notes, laboratory and radiological reports, final discharge summaries covering the VA hospitalizations, treatment or medical evaluation which allegedly resulted in the additional disability or disease, and any report of investigation of the veteran's allegations. All of the medical records for all VA treatment of the veteran's heart condition and any associated complications should be associated with the claims file. Further, if the veteran's informed consent was necessary prior to the treatment allegedly resulting in additional heart disability or disease, all pertinent medical records covering the veteran's informed consent as to the treatment he received from VA must be associated with the claims file. In addition, a copy of the SF 522s, Request for Administration of Anesthesia and for Performance of Operations and Other Procedures, should be associated with the claims file. If any of the above is not obtainable, a written statement to this effect should be associated with the claims file. 2. Then, the RO should undertake any other indicated development. If the RO determines that the claim is plausible, possible, or capable of substantiation, the RO should fulfill its duty to assist the veteran in development of the claim, to include providing a VA medical examination and opinion on the issue of whether the veteran's heart disability has been aggravated due to the periods of VA treatment and hospitalization at issue in this case. On this point, the RO is advised to view any new evidence in the context of Dr. Bash's May 2000 statement that the veteran's VA treatment and hospitalization resulted in hypoxia which required ventilation in an intensive care unit, and that hypoxia is not good for a heart that is already compromised due to vascular disease. 3. Then, the RO should readjudicate the issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for aggravation of heart disability due to treatment during VA hospitalization in October 1995, February 1996, and March 1996. If the benefits sought on appeal are denied, then the appellant his representative should be provided with a supplemental statement of the case which reflects RO consideration of all additional evidence and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The purposes of this REMAND are to obtain additional medical information and to ensure that the veteran is afforded due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusions warranted in this case. No action is required by the veteran until contacted by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals