Citation Nr: 0504208 Decision Date: 02/16/05 Archive Date: 02/24/05 DOCKET NO. 03-14 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to Dependency and Indemnity Compensation (DIC) for the veteran's death under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and her son and daughter ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The veteran served on active duty from December 1950 to September 1954. He died on April [redacted], 2003; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that determination, the RO, in pertinent part, denied service connection for the cause of the veteran's death, concluding that there was neither a direct connection between the veteran's death and a service- connected disability nor a relationship between his death and VA treatment. The appellant disagreed and this appeal ensued. In June 2003, the RO certified two issues on appeal to the Board -- entitlement to service connection for the cause of the veteran's death under 38 C.F.R. § 3.312 and to DIC under 38 U.S.C.A. § 1151 (West 2002). In September 2003, the appellant and her son and daughter testified at a hearing before the undersigned Acting Veterans Law Judge designated by the Chairman of the Board to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). A transcript of the hearing is in the record. At that hearing, the appellant's representative clarified that the only issue before the Board was entitlement to DIC under 38 U.S.C.A. § 1151. In light of this, and the award of DIC under 38 U.S.C.A. § 1151 for the veteran's death here, the Board finds that the issue of service connection for the cause of the veteran's death under 38 C.F.R. § 3.312 is not on appeal and will not be discussed in this decision. FINDINGS OF FACT 1. The VA has fulfilled its notice and duty to assist duties to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issue addressed in this decision. 2. The veteran died at a VA medical facility, on April [redacted], 2002; the appellant was married to the veteran at the time of his death. 3. The certificate of death listed the immediate cause of death as myocardial infarction (MI), due to or as a consequence of coronary artery disease, due to or as a consequence of gastrointestinal stromal tumor. 4. The evidence appears to reflect that VA medical staff failed to administer the prescribed course of medication in preparation for an abdominal computed tomography (CT) scan, prior to giving the veteran Gastrografin on April [redacted], 2002, and that, on administration of the Gastrografin, the veteran became hypotensive, leading to an MI and his death. 5. The competent evidence is in relative equipoise as to whether the veteran's death was as likely as not caused or materially affected by hospital care or medical treatment furnished by the VA and the proximate cause of death was the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care and medical treatment. CONCLUSION OF LAW With resolution of all reasonable doubt in the claimant's favor, the criteria for entitlement to DIC for the veteran's death under the provisions of 38 U.S.C. § 1151 have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.358 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) was enacted and became effective. Besides eliminating the requirement that a claimant submit evidence of a well-grounded claim, it provides that VA will assist the claimant in obtaining evidence necessary to substantiate a claim and requires VA to notify the claimant and the claimant's representative, if any, of information required to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). In August 2001, VA issued regulations to implement the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004)). The amendments became effective on November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the appellant's claim. This is so because the Board is taking action favorable to the appellant and, as such, the decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The veteran died at a VA medical facility, on April [redacted], 2002. The appellant argues there were errors in VA medical treatment on April [redacted] and [redacted], 2002, which led to the MI that caused the veteran's death. She maintains that VA physicians prescribed a course of medication late on the evening of April [redacted] and into the morning hours of April [redacted] and that no such medication was ever administered. She asserts this medication - Prednisone, Cimetidine, and Diatrizoate - was in preparation for an abdominal CT scan to be performed the morning of April [redacted]. The appellant concludes that, on administration of Gastrografin, a contrast dye used in the CT scan, the veteran had the MI that caused his death. Under the provisions of section 1151, the law provides that the VA must pay compensation to a claimant in the same manner as if such disability, aggravation or death were service- connected under the following circumstances: if the veteran suffers from additional disease or injury, or an aggravation of an existing disease or injury, caused as a result of VA training, hospitalization, medical or surgical treatment, or examination; or caused in the pursuit of certain vocational rehabilitation. The qualifying disability or death must not be the result of the veteran's willful misconduct. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.358, 3.800 (2002). Competent medical evidence is required to support claims involving a medical diagnosis. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For claims filed on or after October 1, 1997, as in this case, a claimant is required to show fault or negligence in medical treatment. Specifically, the claimant must show additional disability or death which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. In the alternative, the claimant must show that he/she suffers from additional disability or death which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the additional disability was an event which was not reasonably foreseeable. See 38 U.S.C.A. § 1151 (a)(1)(A) and (B) (West 2002); 63 Fed. Reg. 31,263 (1998); VAOPGCPREC 40-97; Pub. L. No. 104-204, § 422(b)(1), (c), 110 Stat. 2926-27 (1996). VA hospital records indicate the veteran was admitted in late March 2002 for evaluation of an abdominal mass. The veteran underwent an uncontrasted abdominal CT scan that showed a soft tissue mass. He then underwent a colonoscopy that showed no evidence of malignancy. As the contours of the mass were not clear, he was prepared with steroids (given a contrast allergy) for a abdominal CT scan, which was conducted on April 1, 2002, and that showed a fluid containing mass. A biopsy the next day revealed an inflammatory gastrointestinal stromal cell tumor. Surgery was recommended, even though the veteran was a high surgical risk due to his coronary artery disease. He left the hospital on April 10, 2002, without the surgery being performed. On April [redacted], 2002, the veteran was readmitted for fever and abdominal pain and was placed in an intensive care unit due to suspicions of ischemia. The hospital report for this admission, reflects that the veteran had shortness of breath and belly pain on April 13th after having Gastrografin administered prior to a CT scan. He was then given one dose of Benadryl and Phenergan and became hypotensive. Various efforts were made to revive him, but without success. An autopsy done two days after his death reflects that, on admission, the veteran was noted to have electrocardiogram (EKG) changes, although he was ruled out for an MI at that time. On April [redacted], 2002, the veteran received Gastrografin for a CT scan. He reported feeling nauseated and short of breath soon after, and subsequently received Benadryl. He reported feeling better, but still had some nausea. He then was given Phenergan. The veteran used the bathroom and afterwards was noted to be bradycardic. A code was called, and the veteran was revived. He was intubated and transferred to the critical care unit (CCU). Shortly after arrival in the CCU, the veteran again was coded, and this time was unable to be revived. The appellant maintains the hospital summary is incomplete, and in support provided copies of VA clinical records for April [redacted] and [redacted], 2002. These clinical records show the veteran was prescribed Prednisone, Cimetidine, and Diatrizoate in preparation for an abdominal CT scan to be performed on April [redacted]. Directives accompanying these clinical entries are phrased in the future tense, as in "Give on 4/[redacted] at 6 p.m.", "Give on 4/[redacted] at 11:55 p.m.", and "Give on 4/[redacted] at 6 a.m.". Each medication also is noted as a "premedication for CT contrast on 4/[redacted]". Thus, it appears these directives were provided on, or prior to, the evening of April [redacted] and were to be performed at the specified times. These clinical records also include an entry titled "24 HOUR RECORD OF ASSESSMENT AND CARE" prepared on April [redacted] at 6:09 a.m., which indicates that "No treatments performed this tour." It is unclear whether "tour" refers to the 24 hours alluded to by the title of the entry or possibly to an eight-hour night shift of the nursing staff. In any event, these records appear to support the appellant's allegations that the medications prescribed in preparation for an abdominal CT scan were not administered. In January 2003, the RO obtained a medical opinion from a VA physician working at VA medical facility other than the hospital where the veteran had been treated. This physician reviewed the claims file and its evidence prior to rendering an opinion. In reference to the questions posed by this appeal, the physician wrote: I am unable to determine by reviewing [the veteran's] medical records whether the Prednisone ordered for pre-dye injection was ever given. The orders are very clearly stated, however, I am unable to determine whether the Prednisone was ever give, however, the beginning of the demise occurred shortly after injection of Gastrografin intravenously prior to doing a CT scan. The patient became hypotensive which may have precipitated his myocardial infarct, therefore, I am unable to answer specifically whether the injection of the Gastrografin had anything to do with his demise. At the September 2003 hearing, the appellant's representative noted nine separate facts: (1) that the veteran had a preexisting heart condition of some severity; (2) that the clinical records and an opinion from the veteran's cardiologist indicate that the veteran's heart was normal immediately leading up to his death; (3) that the veteran was allergic to the dye that was to be used in the upcoming procedure; (4) that Prednisone was prescribed as a precautionary medication prior to the injection of the dye, consistent with past procedures for the veteran; (5) that, by 6 p.m. on the [redacted], the deadline for the first Prednisone injection, no Prednisone had been given and the nurse had admitted that it had not been delivered; (6) that there is no evidence that Prednisone was ever given to the veteran prior to the dye injection, even though at least three injections were scheduled; (7) that the veteran was unfortunately injected with the dye; (8) that the veteran had a rapid onset of severe symptoms after injection of the dye; and (9) that he died. The representative also indicated that the January 2003 VA medical opinion was inadequate. The VA physician basically stated that he was unable to determine if Prednisone was injected and, therefore, was unable to determine if the dye contributed to the veteran's death. The appellant's and veteran's daughter testified that she was at the hospital with her father, the veteran, when the VA physician made the orders for the Prednisone and that the first dose was to be administered on April [redacted] at 6 p.m.; that no one came in to give the veteran an injection at that time; that, while she reminded the nurse a little after 6 p.m. that it was time to start premedicating the veteran, the nurse told her that she was waiting for the pharmacy to bring the medications up; and that her father did not received any Prednisone when she was there. The appellant's and veteran's son stated that he was at the hospital at the same time; that he badgered the nurse about premedicating the veteran until he left to go to work and that his father had not received at shot before he left at 7 p.m. The appellant admitted that she stayed a little longer after her children had gone and that, when she left about one-half hour later, the veteran had not been premedicated. The daughter testified, when the veteran was admitted on the morning of the [redacted], VA had put an allergy ID bracelet on him; that he had not taken a shower or done anything else where he would have taken the bracelet off; and that to the best of her recollection the bracelet was still on his arm when she left that night. She stated that, after the veteran's death, all three of them asked whether the veteran had been premedicated and were told "yes" but another doctor told them that better dyes were used nowadays and so it was not necessary to premedicate. The appellant added that when asked about premedication of the veteran, the doctors kind of hemmed and hawed around and finally said "yes." The daughter stated that the veteran's family know that VA gave the veteran an injection of something [dye] that he was allergic to and they know that the veteran missed at least the 6 p.m. dose. The appellant confirmed that no injection was given between 5:30 and 7:30 p.m. on the [redacted]. Based on the above evidence, the Board finds that the evidence of record is sufficient to raise a reasonable doubt as to whether the veteran was premedicated. The January 2003 VA medical opinion supports the appellant's assertion that the three medications listed in the clinical records were to have been administered prior to, and in preparation for, the CT scan on the morning of April [redacted], and that there is no record of their being administered. Moreover, the veteran's family members testified that the first injection was not administered to the veteran at 6 p.m. and had not been administered by 7:30 p.m. on the [redacted]. Lay testimony is competent so long as it remains centered upon matters within the knowledge and personal observations of the witness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The autopsy is silent as to premedication. Resolving reasonable doubt on this question in the appellant's favor, the Board finds that it appears that the VA medical staff failed to administer the prescribed course of medication in preparation for an abdominal CT scan scheduled for April [redacted], 2002. 38 C.F.R. § 3.102 (2004). The autopsy and January 2003 VA medical opinion also provide a near immediate temporal connection between the administration of Gastrografin and the veteran's MI. On the important issue of causation, the VA physician opined that the veteran became hypotensive on administration of Gastrografin, which "may have precipitated" the MI and ultimate death. Though far from a firm opinion supporting a causal connection, this opinion does provide qualified support. Although the VA physician went on to say he "was unable to answer specifically whether the injection of the Gastrografin had anything to do with" the veteran's death, he provides in his opinion essentially a statement that it is as likely as not that the veteran's death was related to a failure to administer the premedication. Though the medical opinion does not address the question of the proximate cause of the disability, and whether it was due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing the hospital care and medical treatment, that conclusion seems axiomatic. In light of the evidence of record, the autopsy, the equivocal January 2003 VA medical opinion, and the testimony, and with the resolution of reasonable doubt in the appellant's favor, the Board finds that it is as likely as not that the veteran's death was related to VA's failure to administer the premedication. As such, the evidence is in equipoise and supports the appellant's claim of entitlement to DIC for the veteran's death under 38 U.S.C.A. § 1151 (West 2002). ORDER Entitlement to Dependency and Indemnity compensation for the veteran's death under the provisions of 38 U.S.C.A. § 1151 is granted. ____________________________________________ M. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs