Citation Nr: 1210331 Decision Date: 03/20/12 Archive Date: 03/30/12 DOCKET NO. 98-05 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as a result of treatment received at the VA Medical Center in Tuskegee, Alabama, from May 1991 to January 1992, for accrued benefits purposes. 2. Entitlement to dependency and indemnity compensation benefits (DIC) based on service connection for the cause of the Veteran's death or under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARINGS ON APPEAL Appellant and R. S. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to August 1976 and from September 1976 to August 1980. He died in May 1997. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. Due to the location of the appellant's address, the jurisdiction of her appeal was later transferred to the RO in St. Petersburg, Florida. In a September 2006 decision, the Board denied the benefits sought on appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court), and in April 2008, the Court vacated the Board's decision and remanded the matter for further development consistent with a Joint Motion for Remand (JMR). In July 1999, the appellant testified at a videoconference Board hearing before a Veterans Law Judge, and because the Veterans Law Judge was subsequently no longer employed at the Board, in July 2009, she testified before another Veterans Law Judge. In January 2012, the Board informed the appellant that the Veterans Law Judge who conducted the July 2009 hearing was no longer employed by the Board, and indicated that she was entitled to another Board hearing. That same month, she responded, indicating that she did not desire to appear at another hearing. Thus the Board will proceed with the consideration of the case. A transcript of each of the hearings is associated with the claims folder. In January 2011, the Board referred the issue pertaining to 38 U.S.C.A. § 1151 to the Veterans Health Administration (VHA) for a medical expert opinion. The June 2011 VHA opinion obtained, along with a September 2011 addendum, have been associated with the claims file. During the appeal, the appellant revoked the power of attorney of record in favor of Paralyzed Veterans of America, Inc; the Board recognizes the change in representation. The issue of entitlement to DIC based on service connection for the cause of the Veteran's death or under the provisions of 38 U.S.C.A. § 1151 being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran died in May 1997; the appellant filed a claim for accrued benefits the same month. 2. At the time of the Veteran's death, a claim was pending for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as a result of treatment received at the VA Medical Center in Tuskegee, Alabama, from May 1991 to January 1992. 3. It is at least as likely as not that the Veteran incurred additional disability in the form of hypoxic brain injury as a result of VA medical treatment from May 1991 to January 1992. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability in the form of hypoxic brain injury as a result of VA medical treatment from May 1991 to January 1992 have been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1990). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as a result of VA medical treatment from May 1991 to January 1992, for purposes of accrued benefits. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. When a Veteran has a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). Under 38 U.S.C.A. § 5121(c), there is a requirement for an accrued benefits claim that the application "must be filed within one year after the date of death." 38 U.S.C.A. § 5121(c) (West 2002); 38 C.F.R. § 3.1000(a), (c) (2011). The appellant initiated her claim in May 1997, less than one month following the Veteran's death. Thus, she meets the requirement for filing an accrued benefits claim. Prior to November 2002, if the Secretary authorized VA to prepare a post-date of-death medical report, it is deemed in the file at the date of death. Castellano v. Shinseki, 25 Vet. App. 146 (2011). In a footnote, the Court in Castellano, citing to Hayes v. Brown, 4 Vet. App. 353 (1993), noted that a VA Adjudication Procedure Manual provision is only binding as long as it is not inconsistent with a regulation. Effective November 27, 2002, 38 C.F.R. § 3.1000 (pertaining to accrued benefits claims) was amended to clarify the terms "evidence in the file at date of death" and "evidence necessary to complete the application." See 67 Fed. Reg. 65707-708 (Oct. 28, 2002). The term was clarified to indicate that "evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. In addition, 38 U.S.C.A. § 5121(a) was amended effective December 16, 2003, to remove the two year limitation on the receipt of accrued benefits. The amendment to 38 U.S.C.A. § 5121(a) is only effective for deaths occurring on or after December 16, 2003. See Veterans Benefits Act of 2003, Public Law No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). The Board further notes that during the course of this appeal pertinent laws and regulations related to claims filed pursuant to 38 U.S.C.A. § 1151. The statute was formerly codified at 38 U.S.C.A. § 351; it was re-codified at 38 U.S.C.A. § 1151 on August 6, 1991. The original statue, in part, provides that: Where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991) (effective for claims filed prior to October 1, 1997). The regulatory framework developed by VA to implement 38 U.S.C.A. § 1151 is contained at 38 C.F.R. § 3.358. Prior to November 1991, VA had long interpreted 38 U.S.C.A. § 1151 to require a showing of fault on the part of VA or the occurrence of an accident to establish entitlement to compensation under 38 U.S.C.A. § 1151 for adverse consequences of VA medical treatment based on the regulatory provision found at 38 C.F.R. § 3.358(c)(3)(4). On November 25, 1991, however, in Gardner v. Derwinski, 1 Vet. App. 584 (1991), the Court invalidated 38 C.F.R. § 3.358(c)(3), holding that that portion of the regulation was unlawful because it exceeded the authority of the Secretary of VA and violated the statutory rights granted to Veterans by Congress under 38 U.S.C.A. § 1151. The Secretary appealed the decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and eventually to the U.S. Supreme Court (Supreme Court). The Federal Circuit concluded that VA's regulations interpreting 38 U.S.C.A. § 1151 as requiring fault or accident were entitled to no deference and held that 38 C.F.R. § 3.358(c)(3) was invalid. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). On December 12, 1994, the Supreme Court similarly held that VA was not authorized by 38 U.S.C.A. § 1151 to exclude from compensation the "contemplated or foreseeable" results of non-negligent medical treatment as provided by 38 C.F.R. § 3.358(c)(3). Brown v. Gardner, 513 U.S. 115 (1994). On March 16, 1995, amended regulations that conformed to the Supreme Court's decision were published effective retroactively to November 25, 1991. The fault or accident requirement of 38 C.F.R. § 3.358(c)(3) was deleted and now provides that compensation is not payable for the "necessary consequences" of proper treatment to which the Veteran consented. The final regulatory amendments were adopted on May 23, 1996, and codified at 38 C.F.R. § 3.358(c), effective July 22, 1996. In a document published as a final rule in the Federal Register on August 24, 1998 (63 FR 45004), VA adjudication regulations pertaining to awards of compensation or dependency and indemnity compensation for additional disability or death due to VA hospital care, medical or surgical treatment, examination, or training or rehabilitation services were amended to reflect Congress' amendment of 38 U.S.C.A. § 1151. Sections 3.358 and 3.800 were revised to make them applicable only to claims filed prior to October 1, 1997, and new regulations were added at 38 C.F.R. §§ 3.361, 3.362, and 3.363, effective October 1, 1997. In this case, the appellant asserts, through statements submitted in support of the claim and hearing testimony, that the Veteran experienced lithium toxicity, and possibly Loxitane toxicity, from medications prescribed by VA physicians at a VA Medical Center, as well as oxygen deprivation. She contends that this resulted in brain and bodily damage leaving the Veteran in a dependent, and eventually, persistent, vegetative state from 1991 until his death in 1997. The record reflects that the Veteran began to experience mental health and organizational problems in approximately March 1990 after exhibiting bizarre behavior. He was intermittently hospitalized at private facilities in 1990 and 1991, and diagnoses were noted to include schizoaffective disorder, rule out organic mood disorder, rule out bipolar affective disorder, mixed, with psychotic features, dementia, not otherwise specified, and organic brain syndrome. It was noted that his condition continued to deteriorate despite trials of Prozac and Lithium. In May 1991, the Veteran was hospitalized at the Tuskegee VA Medical Center (VAMC) at which time it was noted that he was allergic to Haldol, Lithium, Loxitane, Prozac, and Navane. The inpatient records note hypoxia and a toxic level of lithium of 1.89 in September 1991, and he was transferred to the ICU. Thereafter, he was placed under rehabilitative care, as his wife was unable to care for him at home. He died in May 1997 after years of care at a VA facility. A preliminary autopsy report showed no gross abnormality of the brain with the exception of cerebral atrophy. A final report from the Harvard Brain Tissue Resource showed the Veteran's brain diagnosis was encephalopathy, probably post hypoxic ischemia, remote, severe. In concluding that the Veteran had additional disability in association with VA treatment, the June 2011 VHA opinion notes the following: There appears to be some added disability associated with an acute febrile illness in September of 1991 and during that illness the patient likely suffered some degree of hypoxic brain injury. This hypoxic injury appears to be associated with the acute febrile illness which may have included sepsis and the acute respiratory distress syndro[m]e, which interve[ne]d with adequate oxygenation in spite of timely detection and administration of supplemental oxygen. It is not likely that the administration of either Loxitane or Lithium played a role in this acute illness. The Lithium level of 1.89 in the mildly toxic range came at a time of dehydration and cannot account for other objective aspects of the illness including fever leukocytosis and poor arterial oxygen content in spite of adequate ventilation. Although he had little improvement after this illness resolved, his level of disability by the end of 1991 was only slightly greater than prior to the episode of September of that year. Thus, and as reiterated in a September 2011 addendum to the June 2011 VHA opinion, it was determined that the Veteran had some degree of additional disability as a result of the VA hospitalization from May 1991 to January 1992. The Board notes that while a September 2005 VA opinion is to the effect that there was no obvious hypoxic event that was treated during the Veteran's hospitalization at the Tuskegee VAMC, the September 1991 VA inpatient records specifically note "hypoxia" and "Lithium toxicity". In addition, while the September 2005 VA opinion notes that the mildly elevated lithium level of 1.89 was not enough to explain septic shock, the June 2011 VHA opinion notes the onset of the hypoxic brain injury occurred together with not only the elevated lithium level and sepsis, but also the acute febrile illness and intervening respiratory distress syndrome. Thus, the evidence is in at least equipoise, and resolving all doubt in the appellant's favor, a finding in favor of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability in the form of hypoxic brain injury is warranted, for accrued benefits purposes. As such, the appeal is granted. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability in the form of hypoxic brain injury as a result of VA medical treatment provided during the period from May 1991 to January 1992, is granted, for accrued benefits purposes. REMAND The appellant asserts entitlement to dependency and indemnity compensation benefits (DIC) based on service connection for the cause of the Veteran's death or under the provisions of 38 U.S.C.A. § 1151. In light of the decision above, coupled with the Court's decision in Castellano (the current version of 38 C.F.R. § 3.1000(d)(4) does not apply to claims pending prior to November 27, 2002, and permits VA to consider reports or examinations authorized by VA), the JMR and Paralyzed Veterans of America's request for remand in correspondence received in December 2011 (presumably for the submission of additional evidence), the Board finds that the claim must be remanded. Accordingly, the case is REMANDED for the following action: 1. Implement the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for hypoxic brain injury due to VA treatment in from May 1991 to January 1992, for accrued benefits purposes. 2. Thereafter, readjudicate the appellant's claim of entitlement to dependency and indemnity compensation benefits (DIC) based on service connection for the cause of the Veteran's death or under the provisions of 38 U.S.C.A. § 1151. If the benefit sought on appeal is not granted in full, the appellant and her representative should be issued a supplemental statement of the case and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs