Citation Nr: 9928111 Decision Date: 09/29/99 Archive Date: 10/12/99 DOCKET NO. 97-29 267A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to compensation, under 38 U.S.C.A. § 1151, for residuals of partial quadriparesis, claimed to have resulted from medical procedures undertaken incident to coronary artery bypass graft surgery performed in a VA medical facility in June 1996. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Associate Counsel INTRODUCTION Records in the claims file indicate that the veteran served on active duty with the United States Army from June 1943 to January 1946. This case comes before the Board of Veterans' Appeals (Board) from a May 1997 RO rating decision which denied the veteran's claim for compensation, under 38 U.S.C.A. § 1151, for quadriparesis. FINDING OF FACT The development of partial quadriparesis, following the CABG surgery performed in a VA medical facility in June 1996, was not an intended result of the treatment the veteran was undergoing, it was not the result of his own willful misconduct or failure to follow instructions, and there is at least a reasonable doubt as to whether it developed as a result of, as opposed to simply coincidental with, the VA hospitalization, or medical or surgical treatment. CONCLUSION OF LAW Granting the veteran the benefit of the doubt, the criteria for an award of benefits under 38 U.S.C.A. § 1151, for the current residuals of partial quadriparesis incurred during the course of coronary artery bypass graft surgery performed in a VA medical facility in June 1996, have been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.358 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis Review of the veteran's claims file reveals that he was examined and evaluated for atypical chest pain at the Richmond VA Medical Center (VAMC) in May 1996. VA records from late May 1996 show that he underwent myocardial imaging, with exercise on a treadmill. After additional testing, the veteran was admitted to the Richmond VAMC in June 1996. Later that month, he underwent a coronary artery bypass graft (CABG) procedure. It was noted that, during recovery following the procedure, the veteran was found to have developed quadriparesis. Early impressions were reported to include brain stem injury (June 1996 X-rays), possible cord compression and spondylitic spine or cord ischemia (June 1996 MRI), and degenerative changes suggestive of a fracture of the spur of C4 over the inferior aspect that might be old but could possibly be new (June 1996 radiological report). The impression on a July 1996 MRI of the cervical spine was of a congenitally small spinal canal with marked spondylosis from C3 to C7, producing narrowing of the spinal canal and compression of the cord. It was noted that there was some suggestion of cord edema if not ischemia, but no evidence of cord hemorrhage. A September 1996 discharge summary indicates that the veteran, who had a history of hypertension, gout, and insulin dependent diabetes, underwent the CABG procedure on June 25, 1996, for atypical chest pain. Postoperatively, he was noted to have weakness of the upper and lower extremities. A CAT scan of the head was noted to be normal, and a magnetic resonance imaging study of the spine reportedly revealed spinal stenosis at C3-C5, with degenerative changes at C3-C5. He then reportedly underwent C3-C6 laminectomy on July 29, 1996, and was transferred to the Spinal Cord Injury Service in August 1996. Physical therapy reported some improvement. The discharge diagnoses included C7 central cord syndrome and status post cervical laminectomy. In September 1996, the veteran filed a claim for compensation under 38 U.S.C.A. § 1151, asserting that he suffers from quadriplegia secondary to the CABG procedure performed at the VAMC in Richmond, Virginia, in June 1996. The veteran contends that, during his recovery from that surgery, it was determined that he had developed quadriparesis from unknown causes. He stated that a C3-6 laminectomy had to be performed in July 1996 to relieve pressure on the spinal cord. He further reported that he was in rehabilitation for loss of use of his lower extremities, his left hand and arm, his speech, and his bladder and bowel functions. A December 1996 discharge summary indicated that the veteran was admitted to the Richmond VAMC in November 1996, for heart and blood pressure problems as well as for C7 sensory incomplete central cord syndrome and laryngitis with total esophageal reflux. Physical examination revealed that the veteran had C7 incomplete quadriplegia. It was noted that the veteran was diagnosed with chronic pharyngitis, most likely secondary to intubation and perpetual laryngeal reflux. On VA examination in January 1997, it was noted that the veteran had been found to be paralyzed immediately after coming out of his open-heart surgery. The examiner noted that the veteran had expressed no particular complaints about his neck or limbs prior to going into surgery. The examiner also stated that, after coming out of the surgery, it was realized in the recovery room that the veteran was paralyzed. It was reported that the veteran did not have significant recovery until he underwent cervical laminectomy for what was thought to be cervical spondylosis and cord compression. Thereafter, the veteran reportedly regained some use of his limbs. The impression was status post cervical laminectomy for cervical spondylosis and possible cord compression, and it was noted that the veteran had regained about half of his pre-surgery level of functioning. The examiner stated that this would be called a manifest quadriparesis and that it was perhaps exacerbated by the positioning of the veteran's head during the course of his open-heart surgery. In May 1997, the RO denied the veteran's claim for compensation, finding, in essence, that there was no showing that the surgery performed in June 1996 had resulted in the quadriparesis and that this disorder was merely coincidental with treatment for the heart disorder. After the September 1997 issuance of an SOC to the veteran, he filed a VA Form 9, Appeal to Board of Veterans' Appeals, in October 1997. Therein, he stated that, after he was diagnosed with quadriparesis, a cervical examination showed multiple problems including degenerative changes, marked spondylosis, and a congenitally small spinal canal with multi-level foraminal narrowing and stenosis at C4-5. He went on to assert that these problems had never affected him prior to the surgery, and that he thought it was more than coincidental that he became paralyzed immediately after the VA physicians performed the quadruple bypass operation. He repeated his contention that the quadriparesis was the result of his surgery, and he noted that this was not among the possible consequences discussed with him prior to the operation. On a February 1998 VA Form 646, Statement of Accredited Representation in Appealed Case, the veteran's representative noted that the veteran had no problems with the cervical spine prior to the open-heart surgery, and he reiterated that a VA physician had indicated that perhaps the quadriparesis was exacerbated by the head positioning during the course of the open-heart surgery. The representative further asserted that, while the veteran was under anesthesia, and during the endotracheal tube placement or its removal, the VA staff overflexed the veteran's neck, causing damage that could have taken place without the knowledge of the attending physicians. After this case was certified to the Board and transferred to Washington, DC, the veteran's representative, the Paralyzed Veterans of America, submitted an Informal Brief of Appellant in Appealed Case. Also submitted to the Board, through the representative, was additional evidence in the form of a consultative memorandum from a physician, a Neuroradiologist and Board Certified Radiologist, Craig N. Bash, MD, of the Uniform Services University of Health Sciences, dated in June 1998. In his memorandum, Dr. Bash noted that the veteran had developed central cord syndrome (CCS) subsequent to open- heart surgery in June 1996. Having reviewed and summarized the medical findings and impressions found during examinations performed after the veteran developed the neurological deficits, Dr. Bash pointed out that an article found in the Journal of Spinal Cord Medicine (1997, Vol. 20, at 230-232), entitled A Case of Central Cord Syndrome Caused by Intubation, was "right on point" regarding the veteran's problem. Dr. Bash reported that, following review of the veteran's claims folder, it was his opinion that the veteran had developed additional disability in the form of CCS following his surgery, and that it is more likely than not that this was an unanticipated complication caused by intubation during the procedure. In conclusion, Dr. Bash stated that the medical record indicated that the veteran's quadriparesis resulted from operative neck manipulation during his anesthesia, consistent with a spinal cord syndrome being caused by intubation, as cited in the Journal of Spinal Cord Medicine. Neither the consultative physician nor the veteran's representative has provided a copy of the aforementioned medical journal article, relied upon by Dr. Bash, to the Board. We have, however, independently reviewed the article. II. Analysis The statutory criteria applicable to this case appear at 38 U.S.C.A. § 1151 (West 1991), which 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 or failure to follow instructions, 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. See 38 C.F.R. §§ 3.358(a), 3.800(a) (1998). The regulations 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. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. 38 C.F.R. § 3.358(b)(1). Compensation is not payable if additional disability or death is a result of the continuance or natural progress of the injury or disease for which the veteran was hospitalized and/or treated. 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. In the absence of evidence satisfying this causation requirement, the mere fact that aggravation occurred will not suffice to make the additional disability or death compensable. 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. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would in fact be administered. 38 C.F.R. § 3.358(c)(3). Finally, if the evidence establishes that the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, the additional disability or death will not be compensable, except in the case of a veteran who is incompetent. 38 C.F.R. § 3.358(c)(4). So as to avoid possible misunderstanding as to the governing law, the Board notes that earlier interpretations of the statute and regulations required evidence of negligence on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to 38 U.S.C.A. § 1151 benefits. See, e.g., 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (CAVC) in the case of Gardner v. Derwinski, 1 Vet.App. 584 (1991). That decision was affirmed by both the United States Court of Appeals for the Federal Circuit, in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, in Brown v. Gardner, 513 U.S. 115 (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 the initial Gardner decision was issued by the Court of Veterans Appeals. 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) (1998). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude benefits in the absence of evidence of VA negligence or an unforeseen event. Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (1996); see also VAOPGCPREC 40-97 (Dec. 31, 1997). Since the claim herein was filed before October 1997, it must be adjudicated in accord with the earlier version of 38 U.S.C.A. § 1151 and the May 23, 1996, final regulation. Thus, neither evidence of an unforeseen event nor evidence of VA negligence would be required in order for this claim to be granted. However, a claimant seeking benefits under any law administered by the Secretary of Veterans Affairs has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. If the claim is well grounded, the Secretary is obligated to assist a claimant in developing evidence pertaining to the claim. 38 U.S.C.A. § 5107(a). If the claim is not well grounded, there is no duty to assist. Epps v. Brown, 9 Vet.App. 341 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Murphy v. Derwinski, 1 Vet.App. 78 (1990). See Morton v. West, 12 Vet.App. 477, 480 (1999) (noting that the Federal Circuit, in Epps v. Gober, supra, "rejected the appellant's argument that the Secretary's duty to assist is not conditional upon the submission of a well-grounded claim"). In addition, the Court has ruled that a claimant under the provisions of 38 U.S.C.A. § 1151 must submit sufficient evidence to make a claim well grounded. Ross v. Derwinski, 3 Vet.App. 141, 144 (1992); Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Thus, the threshold question for any claim, including one filed under the provisions of 38 U.S.C.A. § 1151, is whether the claimant has presented a well grounded claim. See Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table), and Epps, supra. A well grounded claim is one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only plausible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy, supra. To present a well- grounded claim, the claimant must provide evidence; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The evidence the claimant must provide must be sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Lathan v. Brown, 7 Vet.App. 359 (1995). Where the determinative issue is factual in nature, competent lay evidence may suffice. Gregory v. Brown, 8 Vet.App. 563 (1996). Where the determinative issue involves medical etiology or diagnosis, medical evidence is required. Lathan, supra. The Court of Appeals for Veterans Claims has recently held that the requirements for a well-grounded claim under section 1151 are, paralleling those generally set forth for establishing other service-connection claims, as follows: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of a disease or injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus (i.e., a link or a connection) between that asserted injury or disease and the current disability. In addition, the Court has determined that an appellant's claim would also generally be well grounded, with respect to the continuity-of-symptomatology analysis under 38 C.F.R. § 3.303(b), if he or she submitted evidence of each of the following: (a) evidence that a condition was "noted" during his/her VA hospitalization or treatment; (b) evidence showing continuity of symptomatology following such hospitalization or treatment; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- hospitalization/treatment symptomatology. See Jones v. West, 12 Vet.App. 460, 464 (1999). Therefore, a claim for benefits under the provisions of 38 U.S.C.A. § 1151 must be supported by medical evidence of additional disability that resulted from VA hospitalization or medical or surgical treatment. In this case, the veteran has submitted medical evidence from Dr. Bash, a qualified specialist, indicating that the veteran's current partial quadriparesis "more likely than not" resulted from operative neck manipulations during the administration of anesthesia at a VAMC during CABG surgery. The evidence on file also includes several documents from VA medical personnel, including the report of an examination conducted for VA purposes in January 1997, which reflect that the veteran's quadriparesis could perhaps have been exacerbated by his head positioning during the course of his open heart surgery. Since there is medical evidence of the claimed disability as well as medical evidence of indicating that that disorder was, at least due to or in part, a result of his VA treatment, the veteran has submitted a well- grounded claim. Upon further review as to the merits of the claim, we note that the medical evidence of record is not unanimous or unequivocal as to whether the veteran suffers from quadriparesis related to events surrounding his open-heart surgery. As noted above, the impression on a June 1996 radiological report indicated that the problem could have been due to degenerative changes suggestive of a fracture that may have been old. The Board is also aware that the impression on a July 1996 MRI of the cervical spine was of a congenitally small spinal canal with marked spondylosis from C3 to C7, producing narrowing of the spinal canal and compression of the cord. Moreover, we observe that there is no indication in the record that any medical care provided to the veteran was other than appropriate, or that VA medical personnel should have been aware of pre-existing abnormality which placed the veteran at added risk during the endotracheal intubation procedure. Nevertheless, as discussed above, under the law applicable to this appeal, no assessmant of fault need be made. When, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Having reviewed the evidence in this case, the Board concludes that the unique facts presented in the record warrant the application of the reasonable doubt doctrine. Realizing that there is a possibility that the veteran's partial quadriparesis could be related to an old fracture, and considering the fact that his congenitally small spinal canal may have contributed to the disorder, the Board, for the reasons stated below, finds that the weight of the evidence is in approximate balance in favor of, and opposed to, the veteran's claim. We note that, while the X-rays revealed evidence of a fracture that might have been old, those same reports also indicated that the possibility of a new fracture could not be ruled out. We also place significant weight on the VA physician's finding that the veteran's quadriparesis was "perhaps" exacerbated by his head positioning during the course of the open-heart surgery. Most compelling, however, is the report from neuroradiologist Craig N. Bash. In his report, Dr. Bash indicated he had reviewed and analyzed all of the medical findings on file regarding the veteran's quadriparesis. In addition, he cited to a pertinent article in the Journal of Spinal Cord Medicine, indicating that research has shown a likelihood that CSS can arise from inadvertent hyperextension during endotracheal intubation of a patient. Dr. Bash's medical opinion, that the veteran's partial quadriparesis likely resulted from operative manipulations of his neck during the course of his CABG surgery, augments the opinion of the VA physician that such an etiological sequence was possible. We recognize that the RO did not have the benefit of Dr. Bash's memorandum when it adjudicated this claim. In addition, we appreciate the assistance of the PVA in obtaining the opinion, which was of significant value in our decision. Accordingly, granting the veteran the benefit of the doubt, the Board concludes that the partial quadriparesis which he developed in the Richmond VAMC following his June 1996 CABG surgery was a consequence of his hospitalization and treatment at that time, and that any current residuals thereof may be compensated as additional disability under the provisions of 38 C.F.R. § 1151. In implementing this decision, the RO will determine the current extent of the residual disability for which section 1151 benefits are hereby allowed. ORDER Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151, for residuals of partial quadriparesis incurred during the course of coronary artery bypass graft surgery performed in a VA medical facility in June 1996, is granted. ANDREW J. MULLEN Member, Board of Veterans' Appeals