Citation Nr: 0111467 Decision Date: 04/19/01 Archive Date: 04/24/01 DOCKET NO. 96-03 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 for memory loss as a residual of a heart valve operation in November 1991, claimed to be the result of Department of Veterans Affairs (VA) medical treatment. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from July 1952 to July 1955. This case arises out of a July 1995 rating action which denied entitlement to benefits under the provisions of 38 U.S.C.A. § 1151, for disability claimed to have arisen from VA medical treatment in November 1991. The veteran appealed that decision to the Board of Veterans' Appeals, (Board) and after remanding the case in October 1997, the Board denied the appeal in a June 1999 decision. The veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims, (hereinafter, Court). While the case was pending before the Court, the Secretary of Veterans Affairs, represented by the VA General Counsel, and the veteran, represented by his attorney, filed a joint motion, in April 2000, asking the Court to vacate the Board's June 1999 decision. The Court granted the parties' motion in an April 2000 order, and the case was returned to the Board for compliance with the directives that were stipulated in the joint motion. The April 2000 order, by its terms, constitutes the mandate of the Court. After the case was returned to the Board, clarification was requested from the veteran's attorney as to whether she would continue to represent the veteran before the Board. In a September 2000 letter from the veteran's attorney, she advised the Board that the veteran had recently taken ill, and that the veteran's daughter had been appointed the veteran's legal guardian. Although the daughter had apparently expressed her desire to this attorney to have the attorney continue to handle this matter, the necessary documentation regarding the daughter's guardianship had not been received. Therefore, it was requested that the Board grant an additional 90 days to permit the attorney to clarify her status as a representative and to submit additional evidence. That extension of time was granted by the Board in September 2000. In December 2000, the attorney in this matter wrote the Board and enclosed copies of documents reflecting that the veteran had been found legally incompetent and his daughter had been appointed his guardian. Also enclosed was a document reflecting that the veteran's daughter had engaged the attorney to continue her representation in this matter before the Board. At the same time, the attorney requested an additional 60 days, within which to submit additional evidence in this appeal. The Board granted this request in a letter addressed to the attorney in December 2000. In February 2001, the Board received from the appellant's attorney, written arguments concerning this appeal, together with a medical opinion from a private physician regarding the appellant's claim. Thereafter, the case was referred to the undersigned for consideration. In addition to the foregoing, it is observed that this appeal originally included renal failure as one of the disabilities for which compensation was sought under 38 U.S.C.A. § 1151. In the aforementioned joint motion, however, the veteran withdrew his appeal with respect to that aspect of his claim, requesting that it be deemed abandoned. The Court, therefore, dismissed that aspect of the veteran's appeal, and as the issue is no longer in dispute, it will not be further discussed in this Remand. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran's course following surgery performed by VA in 1991 was complicated by the onset of a series of strokes, with resultant memory loss, the development of which is directly linked to the surgery the veteran underwent. 3. The onset of strokes and memory loss following the veteran's 1991 surgery was neither a certain or intended result of that procedure, and was not the result of the veteran's own willful misconduct or failure to follow instructions. CONCLUSION OF LAW The criteria for an award of benefits under 38 U.S.C.A. § 1151, for memory loss as a residual of a heart valve operation in November 1991, are met. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. §§ 3.358, 3.800 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the essential contention is that as a result of treatment the veteran received at a VA hospital in November 1991, where he underwent heart valve replacement surgery, he developed severe memory loss for which he seeks compensation benefits under the provisions of 38 U.S.C.A. § 1151. 38 U.S.C.A. § 1151 (West 1991), provides that, if a veteran suffers an injury or an aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the veteran's own willful misconduct, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. See 38 C.F.R. § 3.358(a), 38 C.F.R. § 3.800(a) (2000). The regulations provide that, in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the physical condition subsequent thereto. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358(b)(1), (2). In addition, the regulations specify that the additional disability or death must actually result from VA hospitalization or medical or surgical treatment, and not merely be coincidental therewith. In the absence of evidence satisfying this causation requirement, the mere fact that aggravation occurred will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.358(c)(1), (2). The regulations further provide that compensation is not payable for the necessary consequences of medical or surgical treatment 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 medical or surgical treatment provided. Consequences otherwise certain or intended to result from a 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. 38 C.F.R. § 3.358(c)(3). Finally, if the evidence establishes that the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, the additional disability or death will not be compensable, except in the case of a veteran who is incompetent. 38 C.F.R. § 3.358(c)(4). The aforementioned regulations, as cited and paraphrased above, remain in the current edition of the Code of Federal Regulations. However, as explained below, they have been superseded, in one important respect, by congressional action. So as to avoid any misunderstanding as to the governing law, the Board notes that earlier interpretations of the statute, embodied in regulations, required evidence of negligence or other fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to benefits under 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Appeals for Veterans Claims in the case of Gardner v. Derwinski, 1 Vet.App. 584 (1991). That decision was affirmed by both the United States Court of Appeals for the Federal Circuit, in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, in Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). In March 1995, the Secretary of Veterans Affairs published an interim rule amending 38 C.F.R. § 3.358 to conform with the Supreme Court decision. The amendment was made effective November 25, 1991, the date the initial Gardner decision was issued by the Court of Appeals for Veterans Claims. 60 Fed. Reg. 14,222 (Mar. 16, 1995). The interim rule was later adopted as a final rule, 61 Fed. Reg. 25,787 (May 23, 1996), and codified at 38 C.F.R. § 3.358(c) (1999). Subsequently, Congress took action to overrule the Supreme Court decision, by amending 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude compensation in the absence of negligence or other fault on the part of VA, or an event not reasonably foreseeable. Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (Sept. 26, 1996), codified at 38 U.S.C.A. § 1151 (West Supp. 1998); see also VAOPGCPREC 40-97 (Dec. 31, 1997). The Secretary of Veterans Affairs issued regulatory amendments to effectuate section 422(a) of Public Law No. 104-204. 63 Fed. Reg. 45,004 (Aug. 24, 1998). However, those amendments were subsequently rescinded, as part of a litigative settlement, and the previous language was restored. 63 Fed. Reg. 1,131 (Jan. 8, 1999). At present, therefore, claims for benefits under section 1151 which were filed before October 1, 1997, must be adjudicated under the earlier version of the statute, and under the regulations currently published in the Code of Federal Regulations. On the other hand, those claims for benefits under section 1151 filed on or after October 1, 1997, are governed by the current version of the statute, and by the existing regulations, to the extent that they do not conflict with the statute. The veteran's request for benefits pursuant to the provisions of section 1151 was received in 1993. Therefore, under the statute and the opinion of the General Counsel cited above, the veteran's claim must be adjudicated under the version of section 1151 extant before the enactment of the statutory amendment, i.e., neither VA fault nor an event not reasonably foreseeable is required for his claim to be granted. The record in this case, while somewhat voluminous, may be briefly summarized. It shows that the veteran was admitted to a VA Medical Center in November 1991, for treatment of endocarditis. While hospitalized, the veteran's condition deteriorated and he underwent emergent mitral valve and aortic valve replacement. Shortly thereafter, in March 1992, the veteran was seen for complaints of memory loss which was apparently attributed to cerebral ischemia to the frontal lobes. Subsequent evidence shows the memory loss problem continuing, particularly following cerebrovascular accidents in 1994 and 1997. Thereafter, the record shows that the veteran was examined for VA purposes in connection with this claim in December 1997. The reports from these examinations, particularly the neurologic examination and the examination of the veteran's heart, revealed inconsistencies regarding whether the veteran's memory loss was being attributed to the veteran's 1991 surgery (by virtue of the surgery causing a release of a thrombus that lodged in the veteran's brain) and/or to his 1994 and 1997 cerebrovascular accidents. In response to the RO's request for clarification, another VA physician wrote in June 1998, that the veteran's memory loss was due to strokes, which themselves were most likely due to the veteran's heart valve surgery, insofar as people who have artificial valves have a marked increased risk of strokes. Thus, he concluded that "the strokes are not a residual of the surgery but a well know[n] complication in people who have artificial heart valves." On the foregoing record, the RO continued to deny the veteran's claim, and the case was forwarded to the Board. As described in the Introduction, the Board denied the veteran's appeal, he appealed that decision to the Court, and the Court has since returned the case to the Board. As also mentioned in the Introduction to this decision, the appellant's representative recently submitted an opinion from a private physician, Craig N. Bash, MD, concerning the issue presently on appeal. A review of this document reflects that Dr. Bash reviewed the veteran's claims file and conducted a review of pertinent medical literature. He then went on to conclude that the veteran's memory loss was caused by strokes, and that the strokes were caused by the veteran's heart valve surgery. In his opinion, Dr. Bash indicated that while it was certainly not the intention of the veteran's 1991 surgery to cause memory loss or strokes, the strokes the veteran suffered were caused by either the valve surgery or the valves themselves, rather than by any underlying heart disease. In this regard, he pointed out the surgery the veteran had is "known to cause cerebral strokes" and that because the veteran had minimal other risk factors for strokes, it is unlikely the veteran would have had the strokes and memory loss had he not had the surgery. Thus, he concluded that the strokes "are a residual of; and very likely were directly caused by the surgery in 1991." As set forth above, benefits are payable pursuant to the provisions of 38 U.S.C.A. § 1151, "as if" the additional disability or death were service connected, unless the evidence shows that the disability in question was a necessary consequence of the treatment provided, was due to the natural progress of the disorder which prompted the treatment, was the result of the veteran's own willful misconduct or failure to follow instructions, or was merely coincidental with the hospitalization in question. Here, with the submission of the medical opinion by the appellant in February 2001, it is now apparent that following the veteran's heart surgery in 1991, his course was complicated by the onset of a series of strokes, with resultant memory loss, the development of which is directly linked to the surgery the veteran underwent. In this regard, it is obvious that the onset of strokes and memory loss was not an intended consequence of the surgery that was performed. Moreover, while the evidence suggests that the complications the veteran experienced were considered to be a potential at the time the surgery was performed (and even a high risk), the evidence does not show that these complications were a certain result of the surgery. Furthermore, there is no evidence, whatsoever, showing that any willful misconduct by the veteran or his failure to follow instructions played any role in the complications that arose from his surgery, or that it was a natural progression of the disorder for which the surgery was needed. It is therefore the Board's conclusion that the veteran's strokes and memory loss may be considered an unintended consequence of the veteran's surgery, and, under the law applicable to this decision in the wake of the judicial precedent in Gardner, the veteran is therefore entitled to be compensated under the provisions of 38 U.S.C.A. § 1151. Accordingly, entitlement to benefits under 38 U.S.C.A. § 1151, for memory loss incurred as a result of treatment received while an inpatient at a VA hospital in November 1991 is established. In reaching this decision, the Board notes that pursuant to the instructions contained in the April 2000 joint motion and Court order, the Board was directed to undertake additional development in this case, and in particular, obtain the medical records upon which the Social Security Administration based a favorable 1993 disability decision. These instructions, however, were obviously given before the medical opinion by Dr. Bash was received. As indicated above, the addition to the record of his opinion, when considered with the evidence that was previously associated with the claims file, now provides a sufficient basis upon which to make a favorable determination. Rather than delay the award of this benefit while the development requested in the joint motion is undertaken, it is the Board's view that the more appropriate course of action is to simply grant the appeal at this point. ORDER Entitlement to benefits under 38 U.S.C.A. § 1151, for memory loss as a residual of a heart valve operation in November 1991 is granted. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals