Citation Nr: 0502705 Decision Date: 02/04/05 Archive Date: 02/15/05 DOCKET NO. 01-03 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral above the knee amputations as secondary to the service-connected disability of status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. 2. Entitlement to automobile and adaptive equipment or for adaptive equipment. 3. Entitlement to specially adapted housing or special home adaptation. REPRESENTATION Appellant represented by: Bobby Vance, Attorney WITNESSES AT HEARING ON APPEAL Appellant, B. R. ATTORNEY FOR THE BOARD W. R. Steyn, Counsel INTRODUCTION The veteran had active military service from November 1961 to June 1965. This appeal arises before the Board of Veterans' Appeals (Board) from a November 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the veteran's claim seeking entitlement to service connection for bilateral above the knee amputation as secondary to the service-connected disability of status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. The RO also denied entitlement to automobile and adaptive equipment or for adaptive equipment, as well as entitlement to specially adapted housing or special home adaptation. FINDINGS OF FACT 1. The veteran's bilateral above the knee amputations were due to his non-service connected peripheral vascular disease; they were not due to his cardiovascular disorders. 2. The veteran is not in receipt of service connection for permanent and total disability due to blindness in both eyes and service connection has not been awarded for the anatomical loss or loss of use of both hands. CONCLUSIONS OF LAW 1. The veteran's bilateral above-the-knee amputations are not proximately due to or the result of the veteran's service-connected status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. 38 U.S.C.A. §§ 1110, 1131, (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2003); VAOPGCPREC 6-00. 2. The criteria for entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment have not been met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2002); 38 C.F.R. § 3.808 (2003). 3. The criteria for assistance in acquiring specially adapted housing or necessary home adaptations have not been met. 38 U.S.C.A. §§ 2101(a), 5107 (West 2002); 38 C.F.R. § § 3.809, 3.809a (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The veteran underwent a VA examination in July 1994 for his heart. The examiner noted that the veteran had heart surgery in April to replace an aortic valve and that he also had a coronary artery bypass. He underwent a VA examination in July 1994 for his arteries, in which he was diagnosed with mild peripheral vascular disease. The veteran underwent a mitral valve replacement in February 1998. The veteran was hospitalized from August 11, 1999, to September 8, 1999 for his heart. It was noted that he had coronary artery disease. He had numerous procedures conducted during this time. The veteran was hospitalized from September 1999 to March 2000. The veteran underwent a bypass operation in September 1999, but then remained hospitalized due to complications and other medical problems. Diagnosis was coronary artery disease status post coronary artery bypass graft. The veteran underwent bilateral above-knee amputations in March 2000. The examiner noted that the veteran had undergone a coronary artery bypass graft in September, and had a worsening of his peripheral vascular disease since then, with gangrenous changes in both extremities. In a November 1999 VA opinion, a VA examiner noted that the veteran was in the intensive care unit and on a respirator secondary to heart conditions. The examiner commented that the veteran's unemployability was not related to his service- connected valvular disease, but rather to his non-service connected coronary artery disease. The examiner reviewed the veteran's claims file. In an August 2000 rating decision, the RO implemented a June 2000 decision of the Board, and increased the veteran's service-connected cardiovascular disability, described as status post aortic valve replacement due to valvular heart disease, with history of rheumatic fever and rheumatic heart disease, from 30 percent to 100 percent. A VA opinion was obtained in October 2000. The examiner commented that all documentation of record indicated that the veteran's amputations were necessary because of peripheral vascular disease. The examiner opined that the veteran's amputations were not secondary to his service-connected conditions but rather to his non-service connected peripheral vascular disease. In March 2001, a VA examiner commented that the veteran's amputations were most likely related to his peripheral vascular disease. The examiner also felt that it was as least as likely as not that his coronary problems contributed to his amputations. The veteran was afforded a hearing before a traveling member of the Board in February 2002, a transcript of which has been associated with the claims folder. He testified that he had had four bypasses. He indicated that Dr. O said that the bypasses had to be done because of the problems with his valves. He stated that he developed blood clots which led to gangrene because of the quadruple bypass. He indicated that Drs. S. and H (both VA physicians) agreed with this chain of events. Dr. F.R. submitted an opinion in February 2002 in which he stated that the veteran's amputations were directly related to his heart disease and surgery. He noted the veteran's severe heart disease requiring surgery, and that the veteran subsequently developed clots and required bilateral leg amputations. A VA staff physician (Dr. J.H.) submitted a medical opinion in February 2002. The physician opined that it was highly likely that the veteran's valvular heart disease contributed to his need for coronary bypass grafting which was performed with unforeseen complications including blood clots with arterial compromise and gangrene of the lower extremities requiring amputation of both legs above the knee. In March 2003, the Board requested an independent medical evaluation regarding the veteran's claim of service connection for bilateral above the knee amputation as secondary to his service-connected status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. In February 2004, the independent medical opinion was obtained. The physician G.F. reviewed the records and determined that the knee amputations and preexisting valve disease were not related. The physician believed that the veteran's lower extremity gangrene resulted from peripheral vascular disease that was of atherosclerotic etiology. He commented that the veteran had a long smoking history and known coronary atherosclerosis, for which he had undergone bypass surgery. He commented that the pathological evaluation of the amputated lower extremities showed significant atherosclerosis, and that in his opinion, this was the cause of the gangrene that precipitated the need for fasciotomy and ultimately amputation. He opined that this was not caused by the veteran's valvular heart disease, nor exacerbated by it. Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the VCAA was enacted. Pub. L. No. 106- 475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A (West 2002). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.159). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2003). In a letter dated March 2001, the RO informed the veteran what information and evidence he would have to submit in order to prove his claim of service connection for bilateral above-the-knee amputations secondary to the service-connected valvular heart disease. Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2003). The March 2001 letter informed the veteran that the RO would try to help get such things as medical records, employment records, or records from other Federal agencies. Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2003). The July 2002 letter told the veteran to tell the RO about any additional information or evidence that he wanted the RO to get. It is pointed out that the Court of Appeals for Veterans Claims (Court) recently held that under 38 U.S.C.A. § 5103 (a), a claimant must be given notice of the matters specified in that statute as well as under 38 C.F.R. § 3.159 prior (emphasis added) to the initial unfavorable decision of the agency of original jurisdiction. See Pelegrini v. Principi, 17 Vet.App. 412 (2004). However, it is also pointed out that in the Pelegrini decision, the Court implicitly determined that such notice was not necessary if it could be shown that lack of such notice was not prejudicial to the appellant. In this instance, even though the appellant was not provided the aforementioned notice prior to the initial unfavorable decision in November 2000, it is determined that he is not prejudiced by such failure. The veteran was provided with the requisite notices in March 2001, and he was given an opportunity to respond before the case was re-adjudicated and he was sent a supplemental statement of the case in May 2001. Thus, he had both notice and an opportunity to make use of the information provided in the notice. Furthermore, VA has consistently asked the veteran for information about where and by whom he was treated for amputation and heart disease throughout the more than three years that his claim has been adjudicated. There are no outstanding records to obtain. When the appellant has provided information about where he was treated for his claimed conditions, VA has gone and obtained said records. Also, the veteran's claim does not turn on whether his disability was incurred in service, but rather on whether it is secondarily related to his service-connected valvular heart disease. Therefore, for all of the aforementioned reasons, it is determined that the veteran was not prejudiced by the timing of the notices contained in the November 2000 VCAA letter. Bernard v. Brown, 4 Vet.App. 384 (1993). For the aforementioned reasons, even though the RO never sent a letter specifically requesting that the veteran provide any evidence in his possession that pertained to his claim (as required by 38 C.F.R. § 3.159 (b)), it is determined that the veteran is also not prejudiced by such failure. In short, the RO has informed the appellant of the information and evidence not of record that is needed, the information and evidence that the VA will seek to provide, the information and evidence the appellant must provide, and requested any additional evidence the appellant has that pertains to the claim. 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet.App. 183 (2002). In view of the procedures that have been undertaken in this claim, further development is not needed to comply with VCAA. The appellant has been informed of the information and evidence needed to substantiate his claim, and he has been made aware of how VA would assist him in obtaining evidence and information. He has not identified any additional, relevant evidence that has not been requested or obtained. Several physicians have commented on whether or not the veteran's above the knee amputations were secondarily related to his service-connected valvular heart disease. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claim. Although the VCAA letter did not mention the veteran's claims for entitlement to automobile and adaptive equipment or for adaptive equipment or entitlement to specially adapted housing or special home adaptation, these claims turn on the question of whether was granted service connection for his leg amputations as secondary to his service-connected disability of status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. As noted above, further development is not needed to comply with VCAA regarding that claim. Entitlement to service connection for bilateral above the knee amputations as secondary to the service-connected disability of status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. The law provides that service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § §1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2003). VA Adjudication Manual, M21-1, Part VI, Chapter 5, paragraph 11.18f(2) (August 26, 1996) (VA Manual M21-1) states the conclusion that, if verified rheumatic heart disease has been demonstrated, the effect of subsequent onset of hypertensive or arteriosclerotic heart disease cannot be dissociated and directs adjudicators, under such circumstances, to evaluate the combined cardiac disability as one entity under the rheumatic-heart disease rating code. The VA General Counsel has determined that this provision of the VA Manual M21-1 is substantive and binding on the Board. VAOPGCPREC 6-2000 (May 19, 2000). It is pointed out that following the May 2000 General Counsel opinion, the above- noted Manual provisions were changed to require a medical opinion as to whether the effects of service-connected rheumatic heart disease and subsequently developing arteriosclerotic heart disease could be separated. The latter condition is to be rated as part and parcel of the former, only if the effects of each cannot be separated. VA Manual, M21-1, Part VI, Chapter 5, paragraph 11.18 (e), (f) (April 24, 2001). However, since the veteran filed his claim prior to April 24, 2001 (he filed it in October 2000), he is entitled to have his claim adjudicated under the earlier more favorable provision of the M21-1. VAOPGCPREC 7-2003. It was pursuant to the earlier more favorable provision of the M21-1 that the Board granted a 100 percent rating for the veteran's service-connected cardiovascular disability in June 2000. The evidence shows that the veteran had his legs amputated in March 2000, many years after service. The veteran's contention is that his legs had to be amputated due to the progression of his cardiovascular disorders. There have been a number of medical opinions prepared regarding the etiology of the veteran's leg amputations. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Winsett v. West, 11 Vet. App. 420 (1998) (Court affirmed the Board's decision which weighed two medical opinions, from an expert and a treating physician); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (Board favoring one medical opinion over another is not error). A VA opinion was obtained in October 2000 in which the examiner reviewed the veteran's records, and opined that the veteran's amputations were not secondary to his service- connected conditions, but rather to his non-service connected peripheral vascular disease. Although a VA examiner commented in March 2001 that the veteran's amputations were most likely related to his peripheral vascular disease, he also commented that it was at least as likely that the veterans' coronary problems contributed to his amputations. Two opinions favorable to the veteran's case were submitted in February 2002. Dr. F.R. opined in February 2002 that the veteran's amputations were directly related to his heart disease and surgery. Similarly, a VA staff physician (Dr. J.H.) opined in February 2002 that the veteran's valvular heart disease contributed to his need for coronary bypass grafting in September 1999 which led to the complications of blood clots and gangrene in the legs, leading to the amputations. To resolve the difference in opinions, an independent medical opinion was obtained in February 2004. After reviewing the evidence of record, Dr. G.F. opined that the veteran's lower extremity gangrene leading to amputations resulted from peripheral vascular disease that was of atherosclerototic etiology. He specifically commented that the atherosclerosis was not caused by the veteran's valvular heart disease nor exacerbated by it. As noted above, the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this instance, the greatest weight is afforded to the independent medical opinion of Dr. G.F. For one thing, he indicated that he had reviewed the veteran's medical records, while Dr. F.R. and the VA staff physician in February 2002 had not stated that they had reviewed the veteran's medical records. Also, Dr. G.F. gave reasons for his opinion while Dr. F.R. and the VA staff physician did not. In particular, he stated that the pathological evaluation of the amputated lower extremities showed significant atherosclerosis, and that this was the cause of the gangrene. The veteran would prevail in his case if he could show that his cardiovascular disorders (either his service-connected valvular heart disease or rheumatic heart disease) or his non-service connected cardiovascular disorders (coronary artery disease) were the reason that he had to have his legs amputated. However, the medical evidence specifically shows that it was the veteran's peripheral vascular disease that caused his legs to be amputated. Dr. G.F. opined that the veteran's lower extremity gangrene resulted from peripheral vascular disease that was of atherosclerotic etiology, and as noted above, his opinion was determined to be the most persuasive of the medical opinions. Atherosclerosis is defined as an extremely common form of arteriosclerosis in which deposits of yellowish plaque containing cholesterol, lipoid material, and lipophages are formed within the intima and inner media of large and medium- sized arteries. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 154 (28th ed. 1994). The provisions of the earlier version of M21-1 (the more favorable one for the veteran) specifically instruct not to extend service connection to systemic manifestations or arteriosclerosis in areas remote from the heart. VA Manual, M21-1, Part VI, Chapter 5, paragraph 11.18f(3) (August 26, 1996) (VA Manual M21-1) In this instance, the veteran developed atherosclerosis in an area remote from his heart, in his legs, which led to his eventually developing peripheral vascular disease, which led to the amputation of his legs in March 2000. Accordingly, based on the opinion of Dr. G.F., the veteran's claim must be denied. Although the veteran claims that his bilateral leg amputations are related to his cardiovascular disorders, he is not a medical professional who can make such a determination. As a lay person, he is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the reasons discussed above, it is determined that the veteran's bilateral leg amputations are not proximately due to or the result of his cardiovascular disorders. Accordingly, the preponderance of the evidence is against the veteran's claim for service connection for bilateral leg amputations, the benefit-of-the-doubt rule does not apply, and the veteran's claim must be denied. 38 U.S.C.A §5107 (West 2002). Entitlement to an Automobile or other Conveyance and for Adaptive Equipment. A certification of eligibility for financial assistance in the purchase of one automobile or other conveyance and necessary adaptive equipment will be made where the veteran's service-connected disabilities result in one of the following: (i) loss or permanent loss of use of one or both feet; (ii) loss or permanent loss of use of one or both hands; or (iii) permanent impairment of vision of both eyes, with central visual acuity of 20/200 or less in the better eye, with corrective glasses. For entitlement to assistance in the purchase of adaptive equipment only, the veteran must have, as the result of a service-connected disease or injury, ankylosis of one or both knees or one or both hips. 38 U.S.C.A. §§ 3901, 3902 (West 2002); 38 C.F.R. § 3.808 (2003). Although the evidence shows that the veteran has loss of use of his feet, as discussed above, the veteran's legs were not amputated because of his service-connected aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. Accordingly, the Board finds that the criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, are not met. The preponderance of the evidence is, therefore, against the veteran's claim. Entitlement to a Special Home Adaptation Grant and Specially Adapted Housing A certificate of eligibility for financial assistance in acquiring necessary special home adaptations may be issued to a veteran with requisite service who is entitled to VA compensation for a permanent and total service-connected disability, if, (a) the veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809; nor had the veteran previously received assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a); and (b) the veteran is entitled to compensation for permanent and total disability which is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands. This assistance will not be available to any veteran more than once. 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a (2003). A certificate of eligibility for financial assistance in acquiring specially adapted housing may be provided if the veteran is entitled to compensation for permanent and total disability due to: (1) The loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, or (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 U.S.C.A. § 2101(a)(1)(2)(3) (West 2002); 38 C.F.R. § 3.809(b)(1)(2)(3)(4) (2003). The veteran is service connected for: status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease, rated as 100 percent disabling, and service connected for a fracture of the left 3rd metacarpal, and a fracture of the nose, both rated as noncompensably disabling. The veteran does not meet any of the criteria listed at 38 U.S.C.A. § 2101 and 38 C.F.R. §§ 3.809, 3.809a. Under 38 C.F.R. § 3.809a, the veteran does not have blindness in both eyes or the anatomical loss or loss of use of both hands. Accordingly, his claim of entitlement to a certificate of eligibility for financial assistance in acquiring necessary special home adaptations must be denied. Under 38 C.F.R. § 3.809(b), while the veteran does have loss of use of both lower extremities, as discussed above regarding the claim for service connection, the veteran's leg amputations are not due to his service-connected status-post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease. Because the veteran does not meet the specified criteria, his claim for a certificate of eligibility for financial assistance in acquiring specially adapted housing must be denied. ORDER Service connection for bilateral above the knee amputations as secondary to the service-connected disability of status- post aortic valve replacement due to valvular heart disease with history of rheumatic heart disease is denied. Entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, is denied. Entitlement to financial assistance in the purchase of special adaptive housing or in acquiring a special home adaptation is denied. ______________________________ G.H. Shufelt Veterans Law Judge, 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.