Citation Nr: 0303532 Decision Date: 02/28/03 Archive Date: 03/05/03 DOCKET NO. 96-48 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to dependency and indemnity compensation benefits under 38 U.S.C.A. § 1151 (West 1991 & Supp. 2002) for the cause of the veteran's death. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD Eric S. Leboff, Associate Counsel INTRODUCTION The veteran had active service from October 1942 until November 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 1996 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky, which denied the benefit sought on appeal. The issue on appeal was denied by the Board in an October 1998 decision. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2000 Order, the Court vacated the October 1998 Board decision and remanded the matter back to the Board for adjudication on the merits. In August 2001, the Board issued a remand to accomplish further development of the case. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran died on February [redacted], 1995; the certificate of death noted the immediate cause of death to be acute respiratory distress syndrome (ARDS), due to aspiration pneumonia. 3. With resolution of doubt in the appellant's favor, the evidence of record supports that the cause of the veteran's death, aspiration pneumonia, was a consequence of treatment at a VA facility. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 2001) for the cause of the veteran's death, aspiration pneumonia, as a result of VA treatment, have been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991 & Supp. 2002); 38 C.F.R. § 3.358 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial matters The VCAA There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2002). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. The Board has considered VA's duty to inform the appellant of the evidence needed to substantiate her claim and to assist her in obtaining the relevant evidence, and finds that the provisions of the law and regulation apply to the appellant's claim. The Board further finds that development of the issue on appeal has proceeded in accordance with the law and regulations. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 38 C.F.R. § 3.159 (2002). Duty to Notify On receipt of a claim for benefits VA will notify the appellant of the evidence that is necessary to substantiate the claim. VA will also inform the appellant which information and evidence, if any, that she is to provide and which information and evidence, if any, VA will attempt to obtain on her behalf. VA will also request that the appellant provide any evidence in her possession that pertains to the claim. 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the present case, a rating decision, statement of the case, supplemental statements of the case, and VA letters, apprised the veteran of the reasons and bases for the VA decision, the applicable law, and the evidence needed to substantiate the claim. In particular, a September 2001 VA letter apprised the appellant of the evidence required to establish entitlement to service-connected death benefits, as well as VA's development assistance. Based on the above, the Board finds that the requirements under the VCAA with respect to the duty to notify have been satisfied in this case and that no further notice is required. Duty to Assist In general, the VCAA provides that VA will also make reasonable efforts to help the appellant obtain evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VA's duty includes making efforts to obtain the veteran's service medical records, if relevant to the claim; other relevant records pertaining to service; VA medical records; and any other relevant records held by any other source. The appellant is also required to provide the information necessary to obtain this evidence, including authorizations for the release of medical records. In a claim for disability compensation, VA will provide a medical assessment that includes a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 38 C.F.R. § 3.159 (2002). The Board finds that the VA has provided adequate assistance in the development of the appellant's claim. As a result of such assistance, the claims file contains the veteran's service medical records and private and VA post service treatment records. In particular, VA treatment records dated from 1994 to 1995, including a Summary of Death in February 1995, are of record. Moreover, VA medical opinions dated April 1997 and February 2002 are associated with the claims file, along with a May 1997 VA Medical Inspector report. Furthermore, a November 2001 statement from C.N.B., M.D. is also of record. Additionally, a January 2002 lay statement from the appellant's daughter is included in the claims file. Also of record is a transcript of a November 1997 videoconference hearing. Finally, multiple submissions by the appellant's accredited representative are of record. The Board acknowledges that no treatment records of the veteran's emergency room care at Cooper Drive are of record. However, in an August 2001 remand, the Board instructed the appellant to provide the names of the emergency room physician. Once identified, that physician was to be requested to offer an opinion regarding the etiology of the veteran's death. Furthermore, if that physician could not be identified, the RO was instructed to arrange for another VA physician to review the file and offer such an opinion. Such an opinion was given in February 2002. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. Relevant law and regulations 38 U.S.C.A. § 1151 provides that, when a veteran suffers injury or 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. The regulations implementing that statute appear at 38 C.F.R. §§ 3.358, 3.800. They provide, in pertinent part, that, in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based is compared with the physical condition subsequent thereto. 38 C.F.R. § 3.358(b)(1). Compensation is not payable if additional disability or death is a result of the natural progress of the injury or disease for which the hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b)(2). Further, the additional disability or death must actually result from VA hospitalization or medical or surgical treatment and not be merely coincidental therewith. 38 C.F.R. § 3.358(c)(1), (2). In addition, 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 or intended to result from the VA hospitalization or medical or surgical treatment. 38 C.F.R. § 3.358(c)(3). Earlier interpretations of the statute and implementing regulations required evidence of negligence on the part of VA, or the occurrence of an accident or an otherwise unforeseen event. Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (Court), and, in 1994 the Supreme Court found that the regulation at 38 C.F.R. § 3.358(c)(3) exceeded statutory authority by requiring fault on the part of VA in order for an appellant to prevail on a claim for benefits under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd. sub nom, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd., 115 S. Ct. 552 (1994). In March 1995, the Secretary published an interim rule amending 38 C.F.R. § 3.358 to conform to the Supreme Court decision. The amendment was made effective November 25, 1991, the date of the Gardner decision by the Court. 60 Fed. Reg. 14,222 (March 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), effective July 22, 1996. Although 38 U.S.C.A. § 1151 was subsequently amended to provide effectively that compensation was precluded unless the proximate cause of the additional disability was negligence or other fault on the part of VA, or an event not reasonable foreseeable, this amendment is effective with respect to claims filed on or after October 1, 1997. Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (1996); see also VAOPGCPREC 40-97 (Dec. 31, 1997), 63 Fed. Reg. 31263 (1998). It is not applicable to the veteran's claim here, which was filed prior to that date. Factual background In setting forth the factual background involved in this appeal, the Board finds it useful to begin by describing the contents of a May 1997 final report from the VA Office of the Medical Inspector (OMI). Once that background information is discussed, the remainder of the evidence will be described in chronological order. May 1997, Office of the Medical Inspector (OMI) Final Report In May 1997, the VA Office of the Medical Inspector (OMI) issued a Final Report regarding the veteran's death. That document recounted the essential facts regarding the veteran's terminal hospitalization. Those facts are as follows: The veteran was first admitted to the Leestown Division of the VA Medical Center in Lexington, Kentucky, in April 1993, at the age of 76, with multiple chronic cardiovascular, cerebrovascular, gastrointestinal and respiratory diseases, as well as dementia. The Leestown Division facility provided intermediate medical and psychiatric services, as well as nursing home care. By history, he was allergic to cimetidine, a PPD skin test, carbemazepine and haloperidol. He was unable to communicate with staff to verbalize complaints, and could not participate in his care or follow commands. He also suffered from dysphagia. He had a single episode of coffee-ground emesis in July 1993. Erosive esophagitis was identified by endoscopy in July 1993. Unspecified chronic lung changes were noted on X-rays of the chest. The veteran was transferred to a nursing home in July 1993 and was discharged to his home in January 1994. In February 1994, the veteran was readmitted into the Leestown Division VA facility for dementia, noted as probably being Alzheimer's type. His condition was stable until January 1995. At that time, he was observed to be short of breath on slight exertion, and during ambulation with assistance. A chest x- ray revealed a right upper lobe infiltrate. On February 2, 1995, a CT scan of the lungs, with injection of non-ionic contrast medium, was performed. Treatment notes dated February 3, 1995, indicated that the veteran had developed a rash over his face, trunk and subsequently, his extremities. His temperature rose. On February 4, 1995, the veteran vomited twice. The first episode was described as projectile in nature. His skin rash had increased in severity. On February 6, 1995, the veteran was transferred from Leestown to Cooper Drive Division. His admitting diagnoses included pneumonia, probably secondary to aspiration and diffuse maculo-papular rash, probably secondary to an allergic reaction to intravenous contrast medium. On February 8, 1995, the veteran developed acute respiratory arrest, presumed to be the result of aspiration. He was transferred to the Intensive Care Unit and placed on a ventilator. A diagnosis of ARDS was made on February 14, 1995. Treatment continued, with steady deterioration, until the veteran's death on February [redacted], 1995. After detailing the facts, the VA OMI concluded that the rash and episodes of vomiting following the intravenous injection of nonionic contrast medium during a CT scan procedure could have represented manifestations of a delayed reaction to the contrast medium. OMI observed that it was less clear, however, if the acute respiratory event suffered 6 days later represented a reaction to the contrast medium or a complication of the veteran's underlying conditions. It was observed that his previous history of aspiration and difficulty swallowing placed him at risk for respiratory problems. OMI further commented that the quality of care delivered immediately prior to, during and following the CT scan procedure could not be determined due to a lack of documentation. However, it was concluded that overall, the caregivers at both Leestown and Cooper Drive were attentive and responsive to the veteran's needs. In so concluding, it was noted that appropriate specialist consultations were conducted in response to the multiplicity of problems suffered by the veteran. OMI observed that Radiology Service was not notified that the veteran had a possible adverse reaction to the contrast medium, and further noted that no incident report was completed and sent through appropriate channels. OMI also noted that, based on clinical notes dated January 17, 1995, the VA physician called the veteran's wife to report x-ray results and that a CT scan was to be scheduled. There was no documentation that the family was told of use of a contrast medium. Written informed consent was not then required prior to a CT scan procedure. The final report by OMI also addressed the issue of the primary physician's awareness of the CT scan. It was noted that, from the record, it could not be determined whether the veteran's primary physician was aware that the CT scan had been performed on February 2, 1995. However, the physician was aware of the need for the procedure, and had written an order for such a test back on January 17, 1995. OMI observed that, according to the medical records, the initial recommendation for a CT scan was found in a radiology report dated January 13, 1995. That report contained an impression of a right upper lobe infiltrate and a prominent right hilum and superior mediastinum. A CT scan was recommended to rule out lymphadenopathy or a mass. OMI additionally noted that, on the day following the CT scan, an order was written to force fluids orally. The medical evidence documents that the order was carried out for the next 2 days. Specifically, intake sheets dated February 3, 1995, and February 4, 1995, indicate that the veteran was taking oral fluids before and following episodes of vomiting. Documentation was not found for the next 2 days, however. The records did not show an estimation of fluid loss upon vomiting. While still at Leestown Division, there was no indication of dehydration or problems with fluid intake. Upon admission to the Cooper Drive Division, the veteran was described as "dehydrated," but no further elaboration was made. The OMI report also contained scientific information pertaining to radiographic contrast media. The report noted that 94 percent of severe and fatal reactions to such media occur within 20 minutes of the injection into the body. However, delayed reactions, occurring anywhere from 1 hour to 3 days following the injection, can occur. Symptoms could include fever, chills, rash, flushing, pruritis, nausea, vomiting, diarrhea, headache and hypotension. In most cases, symptoms were mild and resolved spontaneously. Death Summary A Death Summary noted that when the veteran was transferred on February 9, 1995 he had respiratory distress and required mechanical ventilation. The summary noted that the veteran had developed a rash secondary to a reaction of IV contrast for a CT scan. The rash soon resolved with treatment of Benadryl while he was admitted to the Intensive Care unit at VA hospital. As time went on his acute respiratory distress syndrome worsened to the point where he went into cardiopulmonary failure on February [redacted], 1995. No resuscitative measures were taken. April 1997 VA opinion In April 1997, an opinion was offered by a VA examiner upon review of the claims file. That examiner opined that the veteran's rash, developed on February 2, 1995, was not in response to receiving contrast material for a CT scan of his chest. In so opining, the examiner stated that the veteran had received contrast material on 2 previous occasions without incident. Secondly, he stated that reactions to contrast material almost always occur within minutes after intravenous administration, but here the rash did not occur until almost 24 hours following the procedure. The VA examiner in April 1997 concluded that the veteran's fatal ARDS resulted as a consequence of pneumonia, probably of a bacterial variety. In support of that conclusion, the examiner cited medical evidence showing that the veteran had fever and pulmonary infiltration by chest x-ray at the time of his transfer from Leestown Division to the Cooper Drive Division. The veteran even had a low-grade fever while at Leestown and had pulmonary infiltrates and aspiration pneumonia the month prior to his transfer. The examiner closed by stating once more that the veteran did not develop ARDS as a result of a contrast dye and that the veteran did not develop any other conditions as a result of that treatment. Instead, his death was due to pneumonia followed by respiratory failure. He added that such was a common mode of death in patients with significant dementia at the veteran's age. Videoconference hearing In November 1997, the appellant and her daughter testified at a videoconference hearing before the undersigned. The daughter stated that the veteran was receiving inpatient care for dementia at the Leestown Road VA facility. She stated that on February 2, 1995, the veteran was to receive an x-ray because a spot was discovered on his lung. She and the appellant were informed that the procedure was only going to involve an x-ray. She added that the veteran's regular doctor did not arrange the test. The veteran was not competent to consent to any procedures and the appellant held power of attorney. However, no one solicited their consent to the CT scan. In fact, the daughter stated that at no point in time had they ever consented to a CT scan, even though VA claimed he had undergone 2 earlier procedures. The daughter stated that she was first made aware of the procedure by an on-duty doctor, who stated that the veteran had experienced an allergic reaction to the dye used. That statement was made on February 4, 1995. At that point, the veteran's regular doctor was allegedly unaware of the reaction. The daughter further testified that, by February 6, 1995, the veteran was so ill that he was transferred to Cooper Drive, an acute care hospital. The emergency room doctor there commented on the dye, and on the fact that no IV had been started. According to the daughter, the emergency room physician stated that the dye could have done damage to the veteran. The daughter also stated that an IV should have been utilized to flush out the chemicals from the veteran's system or to keep him from getting dehydrated. The basis for that belief was another comment made by the emergency room physician that it was not a good idea for the dye to remain lying in the veteran's system for as long as it had. Continuing with her testimony, the daughter stated that on February 7, 1995, she and the appellant were told that the veteran was fine and that he could be transferred out of the acute care facility. Minutes later he suffered respiratory failure and he was put on a ventilator. He remained on a ventilator until his death on February [redacted], 1995. Statement of C.N.B., M.D. In November 2001, C.N.B. submitted a medical statement. He noted that he had reviewed the veteran's medical records and claims folder for the purpose of rendering a medical opinion concerning his death secondary to an intravenous contrast dye reaction and fluid management. In the opinion of C.N.B., a CT scan performed on February 2, 1995, caused him to have a contrast reaction. Such reaction was manifest in a rash developing on February 3, 1995 and by vomiting on February 4, 1995. In stating his belief that the veteran reacted to the contrast dye, C.N.B. acknowledged that the veteran had been exposed to the dye in the past without a reaction, but found that fact to be irrelevant, as new acute reactions could develop at any time. He noted that contrast reactions could develop, as here, more than 24 hours after the dye injection. He further noted that the veteran had vomiting 2 days subsequent to the dye injection, and that such vomiting was consistent with an allergic reaction. Finally, he acknowledged that the dye utilized was non-ionic. He stated that such dye had a decreased incidence of side effects, but that serious side effects could still occur. Even delayed reactions could occur with a non-ionic medium. According to C.N.B., when the veteran began vomiting, he likely aspirated and developed aspiration pneumonia. That aspiration pneumonia then led to ARDS, causing respiratory failure and eventual death on February [redacted], 1995. C.N.B. further opined that the veteran was also fluid overloaded, which along with the aspiration pneumonia likely caused him to go into ARDS/pulmonary edema, hastening his death. In so finding, C.N.B. relied upon a February 17, 1995, treatment report noting probable pulmonary edema secondary to fluid overload of about 5 liters. That note also stated: "will decrease with 40 ml Lasix." Thus, according to C.N.B., the veteran's ARDS was a consequence of VA treatment, because it arose due to a fluid overload combined with his aspiration pneumonia, which in turn had its onset due to the allergic reaction to the contrast dye injected on February 2, 1995. Analysis Essentially, it is contended that the veteran's death as a result of ARDS, due to aspiration pneumonia, was the consequence of VA treatment and as such is compensable under 38 U.S.C.A. § 1151. Following a review of the claims file, the Board finds that the evidence is in equipoise, and with resolution of doubt in the appellant's favor, an award based on 38 U.S.C.A. § 1151 is supported by the record, as will be discussed below. A key element in the appellant's 38 U.S.C.A. § 1151 claim is that the contrast medium used in conjunction with a February 2, 1995, CT scan caused the veteran to have an allergic reaction. The evidence of record contains scientific findings stating that 94 percent of severe and fatal reactions to such media occur within 20 minutes of the injection into the body. Based in large part on that fact, in his February 2002 opinion, the VA examiner stated that the veteran's rash and other symptomatology were unrelated to the injection of contrast dye because the symptoms did not develop until at least 24 hours later. The VA examiner also based his conclusion on the fact that non-ionic dye was used, which statistically was linked to fewer cases of severe reactions and also on the fact that the veteran received the dye without incident on 2 prior occasions. However, the Board notes that the general statistical evidence cited by the VA examiner has no bearing on this individual veteran and does not take into account the specifics of this particular case. Thus, any conclusions based solely or primarily on such statistical findings are not probative as to the issue on appeal. C.N.B., in his November 2001 submission, correctly noted that, despite the prevalence for reactions to occur within minutes of injection, delayed reactions, beginning anywhere from 1 hour to 3 days following the injection, could occur. The fact that delayed reactions could occur was also noted by OMI in their May 1997 report. C.N.B. further noted that, even with non-ionic dyes, adverse reactions were possible. Moreover, C.N.B.'s November 2001 letter notes that the veteran had vomiting 2 days subsequent to the dye injection, and that such vomiting was consistent with an allergic reaction. Other evidence of record reveals that the veteran also had a skin rash, which is another recognized symptom of allergic reaction to contrast medium. The VA examiner in February 2002 noted that sputum cultures revealed that the veteran had an infection, which may have been the cause of the skin rash. However, it is clear from the phrasing of that opinion that it was more speculative than definitive. Overall, the Board finds that the evidence of record is in equipoise with respect to the matter of the allergic reaction and that the matter is appropriately addressed by resolving doubt in favor of the appellant. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board further finds that the evidence is in equipoise as to whether an allergic reaction caused by the contrast dye injection initiated a chain of events culminating in the veteran's death on February [redacted], 1995. According to C.N.B., when the veteran began vomiting on February 4, 1995, he likely aspirated and developed aspiration pneumonia. That opinion is consistent with the medical evidence, showing that 2 days following the vomiting episodes, on February 6, 1995, the veteran was admitted to Cooper Drive Division with a diagnosis of pneumonia, probably secondary to aspiration. Furthermore, C.N.B.'s opinion is also consistent with evidence showing that on February 8, 1995, the veteran developed acute respiratory arrest, presumed to be the result of aspiration. Finally, the diagnosis of ARDS, made on February 14, 1995 and noted on the Certificate of Death as causing the aspiration pneumonia is also consistent with C.N.B.'s opinion. While the VA examiner in February 2002 differed by stating that the veteran's death was unrelated to the dye injection and was simply due to bacterial pneumonia, this is not consistent with the medical evidence and the Certificate of Death, which found aspiration pneumonia. Overall, the Board finds that the evidence of record is at least in equipoise as to the appellant's claim and that therefore the benefit of the doubt rule applies. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is granted. ORDER Entitlement to dependency and indemnity compensation benefits under 38 U.S.C.A. § 1151 (West 1991 & Supp. 2002) for the cause of the veteran's death, aspiration pneumonia, is granted. U. R. POWELL Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.