Citation Nr: 9812891 Decision Date: 04/24/98 Archive Date: 05/08/98 DOCKET NO. 96-36 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1997) for renal failure, and the residuals thereof, claimed to have resulted from medical treatment rendered at a Department of Veterans Affairs (VA) medical facility beginning in August 1994. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant INTRODUCTION The veteran served on active duty from July 1955 to October 1960. This case was previously before the Board of Veterans' Appeals (Board) in June 1997, at which time it was remanded for additional development. The case is now once more before the Board for appellate review. In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Veterans Appeals (Court) invalidated 38 C.F.R. § 3.358(c)(3) (1995), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151. The Gardner decision was subsequently affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F. 3rd 1456 (Fed. Cir. 1993). That decision was, likewise, appealed and in December 1994, the United States Supreme Court (Supreme Court) affirmed the lower courts’ decisions in Brown v. Gardner, ___U.S.___, 115 S. Ct. 552 (1994). Thereafter, the Secretary of the Department of Veterans Affairs (VA) sought an opinion from the Attorney General of the United States as to the full extent to which benefits were authorized under the Supreme Court’s decision. The requested opinion was received from the Department of Justice’s Office of Legal Counsel on January 20, 1995. On March 16, 1995, amended VA regulations were published to conform with the Supreme Court’s decision. Those regulations were subsequently revised, and, on October 1, 1997, there became effective new regulations governing the adjudication of claims for benefits under 38 U.S.C.A. § 1151. The Board observes that, pursuant to a recent decision of the Office of the General Counsel, Department of Veterans Affairs, all claims for benefits under 38 U.S.C.A. § 1151 filed before October 1, 1997 must be adjudicated under the provisions of § 1151 as they existed prior to that date. VAOGCPREC 40-97 (December 31, 1997). Accordingly, the Board will proceed with the adjudication of the veteran’s current claim on that basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran argues that the Regional Office (RO) committed error in denying entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 in that, as a result of medical treatment rendered by VA personnel beginning on August 23, 1994, he has suffered renal failure, and various residuals thereof. More specifically, it is contended that, on August 23, 1994, the veteran underwent endoscopic retrograde cholangiopancreatography (ERCP), which resulted in pancreatitis, leading to acute tubular necrosis, and, eventually, renal failure. It is further asserted that, as a result of the aforementioned procedure, the veteran suffers from a heart murmur and prostatitis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports a grant of compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for renal failure. FINDINGS OF FACT 1. In August 1994, the veteran was hospitalized at a VA medical facility, during which time he underwent an abdominal computerized axial tomography (CT) scan with contrast, which procedure resulted in acute tubular necrosis, leading to renal failure. 2. The veteran’s renal failure was the direct result of examination and/or treatment by VA medical personnel. CONCLUSION OF LAW Compensation benefits for renal failure pursuant to the provisions of 38 U.S.C.A. § 1151 are warranted. 38 U.S.C.A. § 1151 (West 1991 & Supp. 1997); 38 C.F.R. § 3.358 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background A review of the record discloses that, on August 24, 1994, the veteran was hospitalized at a VA medical facility with complaints of mid to lower epigastric and subumbilical pain associated with 12 episodes of vomiting of bilious material. At the time of admission, the veteran gave a history of hypertension, noninsulin-dependent diabetes mellitus, gout, benign prostatic hypertrophy (BPH), gallstones, and morbid obesity. Reportedly, pertinent history had begun approximately three years previously, at which time the veteran began experiencing sharp mid-epigastric pain associated with nausea and vomiting, though with no fever or chills. The veteran presented at that time to his primary physician, and received a diagnosis of cholelithiasis complicated by biliary colic. The veteran was initiated on a low fat diet, which he had maintained until very recently. Reportedly, the veteran had been evaluated in early August (1994) for recurrent pain, at which time he was found to have an elevated alkaline phosphatase and transaminase. Ultrasound at that time was notable for multiple gallstones in the absence of dilated ducts. The veteran was further evaluated, and, consequently, felt to be a poor cholecystectomy candidate on account of his morbid obesity. He was therefore begun on a weight reduction program and Actigall therapy. Due to the veteran’s recurring symptoms, he underwent ERCP in order to rule out a common bile duct stone which could be concurrently removed. ERCP carried out on August 23, 1994, however, was unremarkable, with the exception that the veteran’s common bile duct could not be cannulated. The veteran was therefore discharged home on Actigall therapy, with continued monitoring of liver function tests. As noted above, he was subsequently readmitted with mid to lower epigastric and subumbilical pain. On physical examination at the time of readmission, the veteran’s blood pressure in the supine position was 168/93, with a pulse of 95. The veteran’s heart displayed a regular rate and rhythm, with a II/VI systolic ejection murmur loudest in the aortic area. Abdominal examination revealed decreased bowel sounds, and tenderness to palpation of the epigastrium. There was no rebound or guarding, and no evidence of hepatosplenomegaly. Laboratory studies were consistent with post-ERCP pancreatitis accompanied by elevated lipase and amylase. However, the veteran fulfilled only 1 of 5 of Ransom’s criteria “compatible with a good prognosis.” Inasmuch as the veteran’s common bile duct had not been visualized during ERCP, it was felt that the etiology of the veteran’s pancreatitis might be a common bile duct stone. During hospitalization, the veteran was hydrated and maintained on Demerol for pain control. Intravenous Cimetidine was begun in order to minimize acid production and to stimulate production of pancreatic enzyme secretion. The veteran was, likewise, maintained NPO for “pancreatic rest.” By hospital day number three, the veteran’s pain medication requirement had become negligible, and his amylase and lipase levels had returned to baseline. He remained afebrile without any periods of prolonged emesis and with no evidence of any abdominal tenderness. During hospitalization, the veteran experienced one episode of a low-grade temperature, for which he received antibiotic therapy. Subsequent to becoming afebrile, antibiotic therapy was discontinued. Blood cultures drawn prior to initiating antibiotic therapy remained negative for the duration of the veteran’s hospital stay. On hospital day four, the veteran’s presentation was entirely consistent with recovery from pancreatic inflammation, and he was, therefore, discharged home in stable condition. It was noted that, during the veteran’s hospitalization, his blood pressure had been rather elevated and labile on several occasions while maintained on his regular blood pressure medication. He was consequently begun on low dose Captopril with very good effect, with the result that his blood pressure remained in the 150/80 range. At the time of discharge on August 29, 1994, the veteran was instructed to follow-up with the surgical clinic regarding a future cholecystectomy. On August 31, 1994, the veteran was readmitted to a VA medical facility. At the time of admission, it was noted that, following the veteran’s discharge on August 29, he apparently went home and “consumed large quantities of food.” Reportedly, following this binge, the veteran experienced increased abdominal pain for which he returned to the hospital. On admission, the veteran presented with epigastric pain in conjunction with an amylase of 495 and a lipase of 1,992. This bout of pancreatitis essentially responded to conservative management with pain medication, restriction of food by mouth, and intravenous fluids. The veteran was subsequently unable to tolerate food by mouth, and his albumin was found to be depressed at 2.5. Accordingly, parenteral nutrition was begun on August 31st. As of November 6, 1994, the veteran had not been able to tolerate significant food or nourishment by mouth. Accordingly, he was switched to TPN on September 12, following the placement of a central line. In early September, during the veteran’s hospitalization, he experienced low grade fevers for which he was evaluated with an abdominal CT scan with contrast. This CT scan showed a boggy pancreas. Complications from the CT scan included an acute tubular necrosis secondary to dye. A further CT scan on September 22nd revealed no interval change in the veteran’s boggy pancreas. Consequently, on October 11th, the CT scan was repeated, with a resulting decrease in the size of the phlegmon. On October 18th, the veteran developed a transaminitis with an SGPT and OT which peaked at 889 and 725, respectively. The possibility of an hepatic abscess was raised, and, therefore, another abdominal CT scan was obtained. That CT scan revealed gallstones and a decreasing pancreatic phlegmon, but no bile duct dilatation or hepatic abscess. At the same time, the veteran underwent abdominal ultrasound, which revealed no common bile duct dilatation. An ancillary finding was mild hydronephrosis of the right kidney. Two days following the aforementioned procedure, there was likewise noted mild hydronephrosis of the left kidney on ultrasound. From a renal perspective, the veteran experienced multiple insults resulting ultimately in a requirement for hemodialysis. On October 3rd and 4th, the veteran experienced extended episodes of hypotension, with systolic blood pressures in the range of 100. Shortly thereafter, his creatinine rose to 3.3, and muddy brown casts were observed in his urinary sediment. On October 17th, 1994, the veteran was found to have a nonanion gap acidosis. For medically intractable metabolic acidosis and continued increasing creatinine, the veteran was placed on hemodialysis. VA records of hospitalization covering the period from late August 1994 to mid-January 1995 reveal that, during the period from November 1994 to December 1994, the veteran was placed on a beta-blocker to control his hypertension. He did not tolerate this medication well, with the result that it was discontinued. Renal service was of the opinion that the veteran continued to suffer slight episodes of hypertension which were injuring his kidneys. Additionally noted was that he remained hemodialysis-dependent, but that his dialysis regimen was being decreased from every other day to Monday, Wednesday, and Friday. The primary diagnosis was pancreatitis, status post endoscopic retrograde cholangiopancreatogram. Secondary diagnoses included urinary tract infection, obstructive sleep apnea, depression, renal failure, and pancreatic phlegmon. In a VA hospital addendum dated on January 12, 1995, it was noted that the veteran had experienced a “tremendously complicated hospital course” following ERCP-induced pancreatitis beginning in August 1994. Presently, the veteran was thought to be medically stable. Ongoing issues, however, included gallstones which, it was felt, the veteran had been intermittently passing, and which, in the future, would require surgical intervention by way of elective cholecystectomy. From a renal standpoint, the veteran was receiving hemodialysis, with no evidence of spontaneously returning renal function. The presence of infectious disease was not felt to be an issue, inasmuch as the veteran was afebrile, and off antibiotics. In VA outpatient treatment records dated in late January 1995, it was noted that the veteran had a history of recurrent pancreatitis, presumably secondary to gallstones, for which he had recently been hospitalized. Additionally noted was that the veteran had sustained acute renal failure secondary to acute tubular necrosis from recurrent hypotensive episodes, resulting in the need for hemodialysis for the past three months. The clinical assessment was of acute renal failure with hemodialysis dependence. II. Analysis The veteran’s claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is “well-grounded” within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997). In pertinent part, prior to October 1, 1997, 38 U.S.C.A. § 1151 provided that, where any veteran shall have suffered an injury or an aggravation of injury as a result of hospitalization or medical or surgical treatment not the result of such veteran’s own willful misconduct, and such injury or aggravation results in additional disability or in death, disability compensation shall be awarded in the same manner as if such disability, aggravation or death were service connected. In sum, the Supreme Court, at the time of its decision, found that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between the claimed injury and any alleged resulting disability. In light of the Supreme Court’s decision, the VA revised 38 C.F.R. § 3.358, the regulation implementing 38 U.S.C.A. § 1151, to eliminate the requirement of fault. 38 C.F.R. § 3.358(c)(1) (prior to October 1, 1997) provided that “[i]t will be necessary to show that the additional disability is actually the result of such disease or injury, or an aggravation of an existing disease or injury, and not merely coincidental therewith.” Further, 38 C.F.R. § 3.358(b)(2) (prior to October 1, 1997) provided that “[c]ompensation will not be payable...for the continuance or natural progress of disease or injuries.” 38 C.F.R. § 3.358(c)(3) (prior to October 1, 1997) provided that “[c]ompensation is not payable for the necessary consequences of medical or surgical treatment or examination 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 examination or medical or surgical treatment.” 38 C.F.R. § 3.358 (prior to October 1, 1997). The opinion of the Attorney General and the provisions of 38 C.F.R. § 3.358 (c)(3) in effect prior to October 1, 1997, preclude compensation where disability (1) is not causally related to VA hospitalization or medical or surgical treatment, or (2) is merely coincidental with the injury, or aggravation thereof, from VA hospitalization or medical or surgical treatment or (3) is the continuance or natural progress of disease or injuries for which VA hospitalization or medical or surgical treatment was authorized, or (4) is the certain or near certain result of VA hospitalization or medical or surgical treatment. Where a causal connection exists, there is no willful misconduct, and the additional disability does not fall into one of the above-listed exceptions, the additional disability will be compensated as if service connected. In the present case, as noted above, on August 23, 1994, the veteran underwent ERCP following which he experienced an episode of what appears to have been acute pancreatitis. On readmission just one day later, the veteran’s presentation was felt to be consistent with “post-ERCP pancreatitis accompanied by elevated lipase and amylase.” However, inasmuch as the veteran’s common bile duct had not been visualized during ERCP, there was some possibility that his pancreatitis might be due to a common bile duct stone. The veteran was subsequently discharged, only to be readmitted two days later with increasing abdominal pain. The veteran’s hospital course became increasingly complicated, and in early September, due to problems with low-grade fevers, he underwent an abdominal CT scan with contrast. Complications of this scan included acute tubular necrosis secondary to contrast dye, which, apparently, caused or contributed to renal failure necessitating hemodialysis. The veteran argues that, during the course of the aforementioned ERCP, his pancreas was “nicked,” resulting in pancreatitis, a heart murmur, prostatitis, and renal failure necessitating hemodialysis. While it is true that, during the aforementioned periods of hospitalization, there was detected a grade II/VI systolic ejection murmur, on no occasion was that murmur felt to be in any way related to the previously-described ERCP. Nor has the veteran’s alleged prostatitis been shown to be in any way the result of that procedure. See Espiritu v. Derwinski 2 Vet. App. 492 (1992); see also Grottveit v. Brown, 5 Vet. App. 91 (1993). Nonetheless, based upon a review of the entire evidence of record, the Board is of the opinion that the veteran’s current renal failure is at least arguably the result of complications resulting from the ERCP performed by VA medical personnel in late August 1994. More specifically, even were it to be shown that the pancreatitis which apparently resulted from that procedure resolved without residual disability, during the period of hospitalization beginning on August 31, 1994, the veteran underwent a CT scan with contrast dye which clearly led to acute tubular necrosis. Based on the evidence of record, it would appear that tubular necrosis, either in isolation or in conjunction with the veteran’s various other disabilities, resulted in renal failure necessitating hemodialysis. Under such circumstances, the Board is of the opinion that a “causal connection” does, in fact, exist between the veteran’s current renal failure (and residuals thereof), and VA hospitalization or medical or surgical treatment. Accordingly, compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for renal failure are in order. In reaching the above determination, the Board has given due consideration to the veteran’s testimony given at the time of an RO hearing in October 1996, and during the course of a videoconference hearing before an Acting Member of the Board in December 1997. The Board finds such testimony entirely credible and probative as to the issue of renal failure. Consequently, as noted above, compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for renal failure are granted. ORDER Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for renal failure, claimed to have resulted from medical treatment rendered at a VA medical facility beginning in August 1994, are granted. S. F. SYLVESTER Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -