BVA9507690 DOCKET NO. 90-24 950 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 (formerly § 351) for additional disability of the heart due to coronary artery bypass grafting performed by the Department of Veterans Affairs (VA) in May 1987. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from February 1944 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1988 rating decision by the VA Regional Office (RO) in St. Louis, Missouri. That rating decision denied benefits under the provisions of 38 U.S.C. § 351 (now 38 U.S.C. § 1151). That section of the law provides compensation to any veteran who has suffered an injury or an aggravation of an injury as a result of VA hospitalization or medical or surgical treatment. In denying the claim, the RO found that the veteran had no additional disability as a result of heart surgery at a VA medical center in May 1987. An April 1989 rating decision specifically denied benefits for loss of vision of the left eye and loss of use of the right hand under 38 U.S.C. § 351. Following a hearing and other development, the RO found that a loss of vision in the veteran's left eye was the result of the May 1987 surgery. A December 1989 rating decision granted disability benefits for loss of vision in the left eye. In a November 1990 decision the Board granted benefits for additional disability of the right upper extremity due to the May 1987 surgery performed by the VA. However, the Board denied benefits for additional disability of the heart as a result of the May 1987 surgery. The Board's denial was appealed to the United States Court of Veteran's Appeals (Court). The Court found that the Board's decision was based on a medical opinion without supporting authority. The portion of the Board's decision which denied benefits for the veteran's heart condition was vacated and remanded to the Board for further proceedings. [citation redacted]. The Board did not immediately consider the case because of a VA- wide stay on cases involving 38 U.S.C.A. § 1151 (West 1991) pursuant to a suggestion of the Court in Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991). That stay was put on such cases until the appeal of Gardner v. Derwinski, 1 Vet.App. 584 (1991) could resolve questions of law and regulation. The United States Supreme Court resolved those matters in a December 12, 1994 decision, Brown v. Gardner, ___U.S.___, 115 S. Ct. 552 (1994). The stay has been lifted and the Board proceeds to resolve the issue at hand. REMAND Coronary artery bypass grafting was performed at a VA medical center in May 1987. As a result of complications, the bypass grafting was redone at another facility in October 1987. It is contended that the first procedure injured the veteran and that the second procedure did not completely remedy those injuries. The veteran's son, a physician, alleges that the injury residuals are manifested by a decreased ejection fraction and cardiac output. The case is complicated by the pre-existing cardiovascular disease and diabetes. A specialist in heart disease should review the file and examine the veteran to determine the nature and extent of any injury residuals from the May 1987 surgery. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran should be accorded an examination by a cardiologist. A copy of this Remand and the entire claims folder must be made available to and be reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The specialist should respond to the following questions and provide a complete rationale for all conclusions reached: a. What, if any, current cardiovascular disease manifestations are the result of the May 1987 surgery? b. What current cardiovascular disease manifestations are due to the disabilities the veteran had before the May 1987 surgery, including diabetes and cardiovascular disease? c. What current cardiovascular disease manifestations are due to the natural progress of the presurgery diseases? d. What is the probability that changes in ejection fraction and cardiac output are the result of the May 1987 surgery? e. What is the probability that changes in ejection fraction and cardiac output are due to the disabilities that the veteran had before the May 1987 surgery, or their natural progress? f. What was the veteran's New York Heart Association Classification before the May 1987 surgery and after recuperation from the October 1987 surgery? Please explain the meaning of the classifications assigned. g. Before the 1987 surgeries and after recuperation from them, was the veteran able to do ordinary manual labor, light manual labor, or sedentary employment? 2. The RO should review the examination report and determine if it is adequate for rating purposes and in full compliance with this Remand. The RO must insure that all the aforementioned questions are answered by the specialist. If not, the report should be returned to the specialist for corrective action. Following completion of these actions, the RO should review the veteran's claim. If the decision remains unfavorable, the veteran and her representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until further notice is issued. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).