Citation Nr: 0006017 Decision Date: 03/07/00 Archive Date: 09/08/00 DOCKET NO. 98-12 465A DATE MAR 07, 2000 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to indemnity and compensation (DIC) benefits under the provisions of 38 U.S.C.A. 1151. REPRESENTATION Appellant represented by: Billy G. Williams, Agent WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from March 1951 to July 1953. The appellant is the veteran's widow. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision in which the RO denied DIC benefits pursuant to the provisions of 38 U.S.C.A. 1151. The appellant appealed and was afforded an RO hearing in July 1998. Her claim was denied as reflected in an August 1998 supplemental statement of the case (SSOC). Thereafter, the appellant appeared before the undersigned member of the Board for a hearing at the RO in April 1999. Transcripts of both hearings are of record. By decision of September 1999, the Board remanded the case for evidentiary development. The case has now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran died on April 16, 1993, and the underlying cause of death was shown by the death certificate to be myocardial infarction due to coronary artery disease and end stage renal disease with diabetes mellitus identified as a significant condition contributing to death. 2. The claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. 1151 is not plausible. 2 - CONCLUSION OF LAW The claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. 1151 is not well-grounded. 38 U.S.C.A. 1151, 5107 (West 1991); 38 C.F.R. 3.102, 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran died on April 16, 1993 at the age of 63. The certificate of death indicates that the immediate cause of death was myocardial infarction due to peripheral and coronary artery disease and end stage renal disease with diabetes mellitus listed as a significant condition contributing to the death of the veteran. An autopsy was not performed. The veteran died at the Loma Linda VA Medical Center (VAMC) in Loma Linda, California, where he was an inpatient for purposes of surgery on his penis. At the time of his death, service connection was in effect for a left ankle disorder, rated 30 percent disabling. VA treatment records reflect that the veteran had a long history of diabetes and hypertension. Since April 1991, the veteran had been receiving hemodialysis three times per week for four hours a day. The terminal hospital clinical records were received and show that the veteran was admitted to the Loma Linda VAMC on Sunday, April 11, 1993. He was to undergo surgery consisting of circumcision and debridement of necrotic glans. The veteran had reported a three month history of a nonhealing lesion/ulcer of the distal penis with necrosis and chronic pain. The lesion had been treated with medication but continued to worsen. The veteran was admitted and underwent circumcision and - 3 - debridement of necrotic glans under local anesthesia. The veteran was noted to tolerate the procedure quite well without difficulties or complications. On April 14, 1993, the veteran was complaining of increased pain. Examination of the penis showed mild hemorrhaging and poor tissue at the glans. After he returned from a dialysis, the veteran's penile dressing was soaked with blood and had to be redressed. Treatment notes reflect that the veteran was seen again on April 15, 1993, and noted to have improved pain control. Examination of the wound showed poor tissue at the distal penis. The assessment by the veteran's physician included consideration of a distal penectomy versus a second debridement procedure. The veteran was scheduled to have dialysis the following morning. During the course of undergoing hemodialysis on April 16, 1993, the veteran experienced multiple episodes of chest pain. His heart rhythm was found to be idioventricular and there was no pulse present. A full resuscitation was instituted, with no response, and the veteran was pronounced dead 30 minutes later. At her RO hearing in July 1998, the appellant testified that she believed the VA misled the veteran when he was first put on dialysis because they told him he would only be on dialysis for two months; he started dialysis in 1991 and died in 1993. She said the veteran was never told that he would require dialysis for the rest of his life because his kidneys were failing. She said that once the veteran started dialysis, he began to go downhill very fast. He started to have problems with his breathing and with his heart. When the appellant was asked to relate what VA treatment caused the veteran's death, she stated that the veteran went into the hospital for surgery on his penis in April 1993. She maintained that the veteran had uncontrolled bleeding and had to go back into surgery. At the April 1999 hearing before the undersigned member of the Board at the RO, the appellant testified that the veteran died of a heart attack while he was a patient at the Loma Linda VAMC receiving treatment for end stage renal disease and diabetes. The veteran had been going in to receive dialysis on a regular basis, but 4 - after he reportedly suffered a mild heart attack during a dialysis treatment on April 9, 1993, the procedure was stopped. The veteran was advised to go home and check back with them on Easter Sunday, April 11, 1993. The veteran was admitted on April 11, 1993, and underwent surgery to control bleeding of an open sore on his penis. The veteran received a dialysis treatment on Monday, April 12, 1993, and underwent surgery on his penis Tuesday, April 13, 1993. Due to uncontrolled bleeding, the veteran was returned to surgery. The appellant said that she saw the veteran on Thursday and he did not appear to be too lively. The veteran was to have additional surgery the next morning, April 16, 1993. The appellant said that she received a call from the VAMC that the veteran had died on Friday morning. The appellant maintained during the hearing that the veteran had a blister on his genitalia that had turned into an open sore; the VAMC left it for 3-4 months despite the presence of continued bleeding. They did not do any surgery until the week that the veteran died. She indicated that the veteran was afraid of surgery. It was indicated that the appellant is claiming a possible relationship between the surgery on the veteran's genitalia and his death. The veteran had been treated for hypertension and irregular heartbeat prior to his heart attack. II. Analysis The threshold question with respect to the claim for compensation benefits under 38 U.S.C.A. 1151 is whether the appellant has presented a well-grounded claim. If she has not presented a well- grounded claim, the claim must fail and there is no further duty to assist in the development. 38 U.S.C.A. 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). In pertinent part, 38 U.S.C.A. 1151, in effect prior to October 1, 1997, provided that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death were service-connected. The provisions of 38 C.F.R. 3.358(c)(3) (1994), formerly required that in order for compensation to be payable under 38 U.S.C.A. 1151, there had to be a showing that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA. In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Appeals for Veterans Claims (Court) invalidated the requirement of fault contained in 38 C.F.R. 3.358(c)(3). The provisions of 38 C.F.R. 3.358, excluding section (c)(3), remained valid. This decision was ultimately affirmed by the United States Supreme Court in Brown v. Gardner, 115 S.Ct. 552 (1994). The provisions of 38 C.F.R. 3.358, provide, that in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease 6 - or injury will be the condition that the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization, etc., was authorized. In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical, or surgical treatment, it is 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. 38 C.F.R. 3.358 (b),(c). The amended regulation, 38 C.F.R. 3.358(c)(3), now provides: Compensation 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 administered. 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. The provisions of 38 U.S. C.A. 1151 were amended effective October 1, 1997, to re-impose the requirement that additional disability be the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an event not reasonably foreseeable. 38 U.S.C.A. 1151 (a)(1)(A)(B) (West Supp. 1999). Because the appellant's claim 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. Following a review of the claims folder, it is the opinion of the Board that the appellant has not presented a well-grounded claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. 1151 based on surgery and treatment the veteran received at the Loma Linda, California in April 1993. The pertinent VA clinical treatment records reflect that the veteran was being followed at the Loma Linda, California VA Medical Center (VAMC) for treatment of end stage renal disease and diabetes. The appellant contends that the veteran was admitted in April 1993 for surgery on his penis and that this surgery, in conjunction with dialysis treatment and anesthesia at the time of the surgery, ultimately contributed to disability for which 1151 compensation benefits are warranted. As set forth above, the VA medical records document that the veteran was admitted to the Loma Linda VAMC on Sunday, April 11, 1993. He was to undergo surgery consisting of circumcision and debridement of necrotic glans. The veteran had reported a three month history of a nonhealing lesion/ulcer of the distal penis with necrosis and chronic pain. The veteran was admitted and underwent circumcision and debridement of necrotic glans under local anesthesia. The veteran was noted to tolerate the procedure quite well without difficulties or complications. During the course of his hospitalization, the veteran underwent his routine dialysis as he had done on an outpatient basis prior to his admission. During the course of undergoing hemodialysis on April 16, 1993, the veteran experienced multiple episodes of chest pain. His heart rhythm was found to be idioventricular and there was no pulse present. A full resuscitation was instituted, with no response, and the veteran was pronounced dead 30 minutes later. In summary, there is no medical opinion of record in this case which indicates that any VA treatment or surgical procedure was the cause of the veteran's death or substantially contributed to his death. As a layperson, the appellant is not competent to provide such evidence. See Espiritu v. Derwinski, 2 Vet.App. 492 8 - (1992) and Grottveit v. Brown, 5 Vet.App. 91 (1993). The Board acknowledges the appellant's contentions regarding the veteran's final VA hospitalization. She has maintained that the veteran had uncontrolled bleeding of his penis following the surgical procedure which was performed on April 12, 1993. She has testified that the veteran had additional surgery due to this uncontrolled bleeding. Such statements are not supported by the original VA hospital surgical records, nurses' notes and physicians' notes. Rather, the record documents that there was some discussion with the veteran about whether he would require a second debridement or whether he should undergo a penectomy; there is no evidence that any additional surgical procedure was performed. At the time that the veteran died, there is no evidence to suggest any aspect of his surgery or complications therefrom played a role in his myocardial infarction during dialysis on April 16, 1993. The Board acknowledges the significant loss sustained by the appellant. However, the appellant has failed to present evidence of any relationship between any incident of VA treatment of the veteran and his death. What is shown is that the veteran had a history of hypertension and end stage renal disease. He was hospitalized for the purpose of undergoing a circumcision and debridement of a lesion on his penis; the records reveal that this was accomplished without complication. Because of the veteran's end stage renal disease, he required dialysis during his hospitalization. During the course of receiving dialysis, the veteran complained of chest pains and went into full cardiac arrest. He died from a myocardial infarction. There is no indication that the veteran's surgery or any incident of VA treatment during his April 1993 VA hospitalization had anything to do with his death. Without medical evidence of a nexus between VA treatment and the veteran's death, the claim is not well-grounded and the appeal on this issue is denied. 9 - ORDER Entitlement to DIC benefits under the provisions of 38 U.S.C.A. 1151 is denied. N.R. ROBIN Member, Board of Veterans' Appeals