Citation Nr: 0003274 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-34 595 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for residuals of a Staphylococcus infection with vein and artery damage secondary to the use of intravenous antibiotics following bypass surgery performed by VA on January 8, 1991. 2. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for urinary tract difficulties secondary to Foley catheterization while hospitalized by VA from January 3, 1991, to February 15, 1991. 3. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for residuals of a perforated bladder secondary to transurethral resection of the prostate performed by VA on October 21, 1993. 4. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for impotency secondary to transurethral resection of the prostate performed by VA on October 21, 1993. 5. Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for post-traumatic stress disorder (PTSD) as a result of surgeries at VA on January 8, 1991, and on October 21, 1993. REPRESENTATION Appellant represented by: West Virginia Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran had verified active military service from June 1944 to June 1946 and from October 1950 to October 1951. This matter comes to the Board of Veterans' Appeals (Board) following a May 1996 decision by the RO which denied the veteran's claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of a Staphylococcus infection with vein and artery damage secondary to the use of intravenous antibiotics following bypass surgery performed by VA on January 8, 1991, as well as urinary tract difficulties secondary to Foley catheterization while hospitalized at VA from January 3, 1991, to February 15, 1991. This matter also comes to the Board from the RO's May 1996 denial of the veteran's claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of a perforated bladder, as well as impotency, secondary to transurethral resection of the prostate performed by VA on October 21, 1993. In addition, this matter comes to the Board from the RO's May 1996 denial of the veteran's claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for PTSD as a result of surgeries at VA on January 8, 1991, and on October 21, 1993. The Board notes that the RO, in its May 1996 decision, characterized all the issues on appeal, except for the claim for urinary tract difficulties, as claims for service connection. However, the Board finds that, given the available record, including the veteran's October 1995 claim, and testimony at personal hearings, as well as the manner of subsequent development by the RO as reflected in a November 1997 supplemental statement of the case, the issues on appeal are all best characterized as claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151. (The claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of a perforated bladder and impotency secondary to transurethral resection of the prostate performed by VA on October 21, 1993, as well as for PTSD as a result of surgeries at VA on January 8, 1991, and on October 21, 1993, will be addressed in the remand that follows this decision.) FINDINGS OF FACT 1. No competent medical evidence has been submitted which tends to show that the veteran currently suffers from a disability as a result of the Staphylococcus infection he acquired following his bypass surgery at VA on January 8, 1991. 2. No competent medical evidence has been submitted which tends to show that the veteran currently suffers from a disability as a result of the Foley catheterization he underwent while hospitalized at VA from January 3, 1991, to February 15, 1991. CONCLUSION OF LAW The veteran's claim for benefits under 38 U.S.C.A. § 1151 for residuals of a Staphylococcus infection following bypass surgery performed by VA on January 8, 1991, or urinary tract difficulties secondary to Foley catheterization while hospitalized at VA from January 3, 1991, to February 15, 1991, is not well grounded. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative assert that, following the veteran's January 8, 1991, triple bypass surgery he developed a Staphylococcus infection due to unsanitary conditions in the VA hospital that required intravenous antibiotic treatment for three weeks which in turn caused both damage to the veins and arteries in his arms and caused his triple bypass to fail. In addition, he asserts that the Foley catheterization he underwent while hospitalized at VA from January 3, 1991, to February 15, 1991, caused permanent urinary tract difficulties manifested by periodic blood in his urine. It is also requested that the veteran be afforded the benefit of the doubt. The Facts VA hospitalization records showing the veteran's pre- and post-operative care surrounding a January 8, 1991, triple bypass surgery were obtained by the RO. A February 14, 1991, medical record shows that the veteran had a history of angina dating to 1981 with a previous cardiac catheterization demonstrating two-vessel coronary artery disease. It was also reported that the veteran did not have a history of myocardial infarction, that his angina had been stable until approximately two years earlier, and that he had increased problems with less exertion since that time. The veteran had chest pain on climbing stairs, walking on inclines, and with heavy lifting. Upon admission to the VA hospital, the veteran complained of problems with nocturia for approximately the previous two to three years. He also reported trouble emptying his bladder completely. However, he denied dysuria or drainage. A January 7, 1991, preoperative urological consultation found that the veteran had a large prostate with phimosis. The recommendation was to preoperatively place a Foley catheter. Postoperatively, it was recommended that the veteran be given an intravenous push (IVP) with retropubic prostatectomy and circumcision after he recovered from the coronary artery bypass. While hospitalized, the veteran underwent elective coronary bypass grafting. Specifically, on January 8, 1991, the veteran underwent triple coronary artery bypass grafting. It was opined that the veteran tolerated the procedure well, was stabilized intra-operatively, and was subsequently transferred to the surgical intensive care unit. Post- operatively, the veteran was kept in the surgical intensive care unit after the fourth post-operative day because blood gases showed relatively low PO2 levels with reasonably good O2 saturation levels. On the sixth post-operative day the veteran developed a fever and some erythema at the sternal incisions. Cultures disclosed a Staphylococcus infection. In addition, the veteran began to demonstrate some postoperative delirium possibly secondary to Ditropan, but possibly due to other central nervous system depressant withdrawal. The delirium was managed with anxiolytics. The foregoing was successful and the veteran's delirium markedly improved. However, the veteran's sternal erythema persisted and he was treated with intravenous Vancomycin and Gentamycin over several days; his temperature slowly declined. It was reported that the veteran's white count reached a peak maximum of 11,000 on January 17, 1991, and remained primarily between 4,000 to 7,000 during the course of his stay. In addition, the veteran's confusion had totally cleared by January 21, 1991. On January 28, 1991, the veteran was transferred to the ward. The remainder of the postoperative course was considered essentially uneventful. The erythema totally resolved and he continued to be afebrile without drainage from the incision. It was also noted that the veteran underwent 22 days of Gentamycin and 21 days of Vancomycin treatment. Upon discharge, he was placed on Septra DS for four weeks. It was reported that, during the course of his hospitalization, a number of attempts were made to remove the Foley catheter. However, the veteran was found to have obstructive uropathy and it had to be replaced. The urologist recommended that the Foley catheter be left in place until the veteran had an opportunity to have an open prostatectomy. The veteran requested that this be done at his local VA medical center (VAMC) at Beckley. Because he was ambulating on the ward without assistance and taking oral nutrition without difficulty, the veteran was transferred back to the Beckley VAMC for further postoperative, as well as follow-up care, for obstructive uropathy, erythema of the sternal incision, and sternal instability. VA hospitalization records also show that the Foley catheter periodically became blocked, required periodic changing, and the veteran experienced pain when voiding through the Foley catheter. See treatment records dated in January 8, 1991, January 12, 1991, February 5, 1991, February 7, 1991, and February 14, 1991. Blood was also seen in his urine on occasion. See treatment record dated in January 8, 1991, Subsequently prepared VA treatment records, dated from February 1991 to March 1996, are also part of the record. However, these records, which show treatment for various complaints and conditions, do not show chronic residuals of the post-operative Staphylococcus infection or Foley catheterization in 1991. The veteran was hospitalized in September 1995 for what was believed to be an upper respiratory tract infection and the diagnoses included a urinary tract infection. He was also hospitalized from February to March 1996 with a history of hesitancy and dribbling of urine. He was admitted due to acute retention of urine, a Foley catheter revealed blood in the urine, and an excretory urogram was performed, but the veteran declined to have any additional procedures performed, and the Foley catheter was removed. The veteran's voiding was normal after the removal of the catheter, and the diagnoses were enlarged prostrate, hematuria with retention of urine, and arteriosclerotic heart disease. The veteran testified at a personal hearing at the RO in February 1997. He testified that, following his bypass in January 1991, he took an abnormally long time to come around because he had been given too much medication. He also testified that he subsequently developed a high fever because of a Staphylococcus infection that was resistant to medication. However, after three weeks of intravenous antibiotic treatment which caused the collapse of certain veins, the infection cleared up. At April 1997 VA examinations, it was reported that the veteran had a history of coronary artery disease and was status post coronary artery bypass graft in January 1991, which bypass was complicated by staphylococcus sepsis. On examination, the veteran was well developed, well nourished, alert, oriented, coherent, ambulatory, and in no distress. A non-tender sternotomy scar was noted. While there was clubbing of the fingertips, there was no cyanosis, deformity, or edema. He had competency of venous flow. Neurological examination disclosed free movement of all extremities, good coordination, and intact reflexes and sensation. Skin appearance was normal and warm to touch without active skin lesions. In addition, the examiner reported that the veteran did not experience frequent urination, pyuria, pain, or tenesmus. Urinalysis was unremarkable. The examiners opined that the examination revealed a normal male. The diagnoses included coronary artery disease, status post coronary artery bypass graft, and no remarkable evidence of peripheral vascular insufficiency. Thereafter, at a September 1997 VA arteries and veins examination, the veteran reported that his history included coronary artery disease, a coronary artery bypass graft complicated by Staphylococcus sepsis, and damage to veins and arteries of both arms due to massive doses of antibiotics. On examination, he was well developed, well nourished, obese, alert, oriented, coherent, ambulatory, and in no distress. A symmetrical and non-tender sternotomy scar was noted. He had good peripheral vessel condition. No ulcers were noted. He had competency of venous flow. The extremities had no deformity or edema. Moreover, while the fingertips had clubbing, there was no cyanosis. He had free movement of all extremities with good coordination, and reflexes and sensation were intact. His skin had no lesions and was warm to touch, as well as dry. Urinalysis showed "23 squamous epithelial cells/HPF;" but was otherwise normal. The examiner opined that the examination revealed a normal male, except for deformity of the foreskin. The examiner also opined that "[n]o vascular damage [was] noted on both arms from previous history of massive IV antibiotics for Staphylococcus infection in 1991, as a complication from CABG[, and] . . . no evidence of peripheral vascular insufficiency . . ." At a September 1997 VA genitourinary examination, it was reported that a review of the record revealed that the veteran underwent a transurethral resection of the prostate (TURP) in 1993. The operation was terminated because of bleeding and prolonged resection time, and six days after the operation the veteran developed "clot retention" that required a second operation to control the bleeding. Subsequently, the veteran complained of a slow urination stream and hesitancy. Thereafter, in approximately May 1996, the veteran underwent a second TURP. The veteran reported that, since the May 1996 procedure, he had voided well and did not have a voiding dysfunction. The veteran testified at a personal hearing before the undersigned sitting at the RO in June 1999. As to his bypass surgery, the veteran reported that he was hospitalized, from January 5 to February 16, 1991, for a triple bypass surgery. He testified that, when initially admitted for the bypass surgery, he was told that he would only be in the hospital for one week - not the three weeks he had to spend. He also reported that, following his surgery, he developed a Staphylococcus infection and the intravenous antibiotics he was given for three weeks caused the veins in both arms to collapse. The veteran opined that the post-operative Staphylococcus infection caused the bypass to fail. He testified that he did not currently have any problems with the veins in his arms and his Staphylococcus infection had not reappeared. Moreover, he testified that, upon being discharged from the hospital, he had to go home on a catheter, the catheter became infected, and after two weeks he had VA remove it. Analysis A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the veteran meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477, 485-86 (1999). If the veteran does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertions are inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The veteran seeks benefits in accordance with the provisions of 38 U.S.C.A. § 1151. Initially, the Board notes that that provision has been amended since 1995, when the veteran filed his claim. However, the amendments were made applicable only to claims filed on or after October 1, 1997. See, e.g., Jones v. West, 12 Vet. App. 460, 463 (1999). Claims filed prior to October 1, 1997, are to be adjudicated under the law as it existed previously. See VAOPGCPREC 40-97 (Dec. 31, 1997). The version of section 1151 in effect when the veteran filed his claim provided, in pertinent part: [w]here any veteran shall have suffered an injury, or an aggravation of an injury, as the 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 the 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, . . . [§ 1151 benefits] . . . 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). See also 38 C.F.R. § 3.358 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that the requirements for a well- grounded claim under the former version of section 1151 parallel those that apply to claims of service connection. See Jones, 12 Vet. App. at 464. Specifically, the veteran must submit: (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of incurrence of aggravation of an 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 between the asserted injury or disease and the current disability. See Jimison v. West, 13 Vet. App. 75 (1999); Jones, 12 Vet. App. at 464. The Court has also suggested, without deciding, that a continuity-of-symptomatology analysis might apply in this context. In that regard, the Court has indicated that a claim under the former version of section 1151 might also be well grounded if the file contains: (1) evidence that a condition was "noted" during the veteran's hospitalization or treatment; (2) evidence showing continuity of symptomatology following such hospitalization or treatment; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post- hospitalization/treatment symptomatology. See Jones, 12 Vet. App. at 464. What is significant about the evidence described above is, paradoxically, what it does not show. None of the records on appeal includes a medical opinion that tends to show that the veteran currently suffers from a disability that is a residual of the Staphylococcus infection sustained by him following bypass surgery performed by VA on January 8, 1991, such as vascular damage caused by intravenous antibiotic treatment. Similarly, none of the records on appeal includes a medical opinion which tends to show that the veteran currently suffers from a disability that is a residual of the Foley catheterization he underwent while hospitalized at VA from January 3, 1991, to February 15, 1991. Specifically, the record shows that the veteran sustained a post-operative Staphylococcus infection that required a long period of intravenous medication. However, the hospitalization records also show that the Staphylococcus infection resolved before discharge. Moreover, an April 1997 VA examiner opined that "[n]o vascular damage [was] noted on both arms from previous history of massive IV antibiotics for Staphylococcus infection in 1991, . . . [and there was] . . . no evidence of peripheral vascular insufficiency. . ." In addition, the veteran testified that the Staphylococcus infection had never recurred. Similarly, the records show that the veteran, pre- and post- operatively, required a Foley catheter. However, the admitting records showed that he had a large prostate with phimosis and reported a pre-hospitalization history of both nocturia and trouble emptying his bladder. In addition, it was implied that the veteran's persistent urinary tract difficulties, that required the Foley catheter during and after the hospitalization, were a result of a large prostate with phimosis as noted on admission, not the Foley catheterization. In addition, it was reported that the veteran required resection of the prostate. Moreover, a September 1997 examiner indicated that the veteran had not experienced a voiding dysfunction since a May 1996 transurethral resection of the prostate. In reaching its conclusions in this case, the Board has not overlooked the veteran's testimony. However, while a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his own opinion as to medical diagnosis or etiology, questions integral to the underlying claims, is not helpful. See Caldwell v. Derwinski, 1 Vet. App. 466 (1991); Bostain v. West, 11 Vet. App. 124 (1998) (someone qualified by knowledge, training, expertise, skill, or education must provide evidence regarding medical knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, (1992). Accordingly, the veteran's lay assertions regarding diagnosis and etiology do not constitute competent evidence sufficient to make his claims well grounded. Absent a presentation of well-grounded claims, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet. App. 14 (1993). Therefore, the veteran's claims must be denied. ORDER A claim of entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a Staphylococcus infection with vein and artery damage due to the use of intravenous antibiotics following bypass surgery performed by VA on January 8, 1991, is denied. A claim of entitlement to benefits under 38 C.F.R. § 1151 for urinary tract difficulties secondary to Foley catheterization while hospitalized at VA from January 3, 1991, to February 15, 1991, is denied. REMAND Next, the Board turns to the claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of a perforated bladder, impotency, and PTSD, claimed to arise, at least in part, out of transurethral resection of the prostate performed by VA on October 21, 1993. In this regard, the Board notes that the RO obtained an October 21, 1993, incident report from the Beckley VAMC concerning transurethral resection of the prostate. Moreover, the record shows that the RO attempted to obtain additional treatment records on file with the Beckley VAMC for the veteran's October 1993 hospitalization. See May 1997 deferred rating decision. However, it does not appear that the RO ever obtained for review any of the other pre- and post-operative hospitalization records for the veteran's October 1993 surgery. Moreover, one of the September 1997 VA examiners reported that the veteran, in May 1996, underwent a second transurethral resection of the prostate at a medical facility in North Carolina. Similarly, it does not appear that the RO ever obtained for review any of these hospitalization records. Because VA adjudicators are deemed to have constructive notice of such records, see Bell v. Derwinski, 2 Vet. App. 611 (1992) and VAOPGCPREC 12-95 (1995), these issues must be remanded for the RO to make an effort to obtain copies of the missing records so that they can be given full consideration in the adjudicatory process. 38 C.F.R. § 19.9 (1999). In addition, as to the veteran's claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for PTSD, the Board notes that, at the veteran's February 1997 personal hearing, the veteran and his representative testified that they wished to pursue a claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for a psychiatric disorder other than PTSD as a result of surgeries at VA on January 8, 1991, and on October 21, 1993. Accordingly, on remand, clarification of whether the veteran wishes to withdraw his § 1151 claim for PTSD and file a new claim based on another psychiatric disorder must be sought. 38 C.F.R. § 19.9 (1999). If the veteran no longer wishes to pursue a claim based on PTSD, a written withdrawal signed by the veteran must be obtained and associated with the record. 38 C.F.R. § 20.204(b) (1999) (a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision). For the reasons stated, the foregoing issues are REMANDED to the RO for the following actions: 1. The RO should contact the veteran in order to clarify whether he wishes to withdraw his claim for § 1151 benefits based on PTSD and file a new claim for § 1151 benefits based on a psychiatric disorder other than PTSD. If the veteran no longer wishes to pursue a claim for § 1151 benefits based on PTSD, a written withdrawal signed by the veteran must be obtained and associated with the record. 2. The veteran should be given an opportunity to supplement the record on appeal. The RO should, with the veteran's assistance, seek any additional relevant treatment records, namely all records at the Beckley VAMC for October 1993 as well as treatment records on file with the North Carolina VA medical facility where the veteran reportedly underwent a second surgery in May 1996. 3. After completing the actions outlined above, the RO should take adjudicatory action on the veteran's claims, to include a determination on the question of whether the claims are well grounded. If the RO concludes that any of the claims are well grounded, the RO should undertake any additional development to fulfill the duty to assist, including obtaining a medical opinion, if deemed necessary. If any benefit sought is denied, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purpose of this remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issues. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals