Citation Nr: 0004633 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-39 208 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to VA benefits under the provisions of 38 U.S.C.A. § 1151 for heart disease claimed to have resulted from VA medical treatment in June 1995. REPRESENTATION Veteran represented by: Texas Veterans Commission INTRODUCTION The veteran served on active duty from December 1942 to June 1945. In August 1999, the Board of Veterans' Appeals (Board) sought a medical advisory opinion from a physician who is employed by the VA, but not otherwise involved with this case, as to whether any circumstance(s) during the June 1995 knee operation, including the administration of anesthesia, or the surgical procedure itself, contributed to the right ventricular apical infarction identified upon testing in August 1995. An opinion provided by a physician who is the Chief of the Coronary Care Unit of the Miami, Florida, VA Medical Center (MC) was provided in October 1999. A copy of that opinion was sent to the veteran's representative in October 1999. The letter accompanying the opinion informed the veteran and his representative that additional evidence or argument in response to the opinion could be submitted within sixty days. As no response has been received from the veteran following the passage of sixty days, the Board will proceed with its review of the appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Surgery consisting of a total right knee replacement was performed at a VA MC in June 1995. 2. The veteran's subsequently-diagnosed heart disease was merely coincident with the VA surgery. 3. No causal relationship exists between the veteran's heart disease and the VA surgery. CONCLUSION OF LAW VA compensation benefits for heart disease claimed to be related to VA hospitalization or medical treatment is not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking VA compensation for residuals of a cardiac infarction. He maintains that he sustained a cardiac infarction as a result of the administration of anesthesia during a total right knee replacement operation at a VA MC (MC) on June 7, 1995. As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been considered and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Facts The veteran underwent a total right knee replacement operation at a VA MC on June 7, 1995. According to the hospital reports, the surgery involved no anesthesia-related complications. He was discharged from the hospital June 16, 1995. On June 29, 1995, he returned to the hospital complaining of shortness of breath, with no significant chest pain. Following various tests, the diagnostic assessment was "probably some element of mild congestive heart failure." Several months later, in August 1995, a multiple gated acquisition scan (MUGA) was interpreted as "highly suggestive of a prior right ventricular apical infarction." In reviewing this report, the veteran's treating physician commented that the mild congestive heart failure experienced a couple of weeks after the total knee replacement was most likely secondary to a myocardial infarction. Electrocardiogram studies dated May 31, 1995; June 29, 1995; and January 1996 are of record along with complete clinical records reflecting the two hospitalizations and subsequent outpatient treatment records. Also of record are the knee operation report and the anesthesia flow chart. The report of a December 1996 VA examination shows that the examiner reviewed the veteran's medical history, performed a clinical examination, and presented the opinion that the veteran had experienced a temporary aggravation of existing coronary heart disease, which had not been diagnosed at the time of the surgery, but that there was no heart disease or complications attributable to the general anesthesia administered during the June 1995 knee surgery. As noted above, the Board forwarded all this information along with the veteran's entire claims file to a VA physician who is a specialist in cardiology for review. An opinion provided by the physician who is the Chief of the Coronary Care Unit of the Miami, Florida, VA MC, was received in October 1999 and a copy of the opinion was sent to the veteran's representative in the same month. A review of the opinion itself reveals that three other physicians, the Chief of Staff, the Chief of the Cardiology Section, and the Chief of the Medical Service also signed the opinion, indicating their review and agreement with the conclusions reached. In the opinion, after a summary of the history of the case, the physician concluded that the anesthesia or operative complications were a highly unlikely cause of the veteran's currently-shown heart problems. A. As to whether the anesthesia and operation caused the congestive heart failure and/or right ventricular abnormalities, this is highly unlikely. The patient had no hemodynamic problems operatively or post-operatively. He was asymptomatic three weeks post-operative. His EKG [electrocardiogram] done on 6/29/95 was unchanged. Most right ventricular heart attacks and left ventricular heart attacks are symptomatic or have hemodynamic problems. Right ventricular heart attacks, in particular, have more hemodynamic problems. B. Furthermore, the cardiac catheterization showed that the right coronary artery was normal. The right ventricle is supplied by the blood of the right coronary artery and yet the artery showed no disease. Although not impossible, a right ventricular infarct is unlikely given this data. C. So what caused the shortness of breath on 6/29/95? Although it is impossible to make a diagnosis in hindsight, I do not think it was related to the operation. It may have been related to a combination of pre-existing coronary artery disease, obesity, improper diet (fluid overload), and the strain of rehabilitation post knee replacement. A pulmonary embolus still cannot be ruled out, even if the VQ [ventilation perfusion] scan was negative. Small pulmonary emboli can be missed by a VQ scan. Also a VQ scan may also miss emboli if not done seventy-two hours post occurrence. Patients with leg operations are prone to pulmonary emboli. D. What caused his abnormal right ventricular function on the MUGA [multiple gated acquisition] scan? As stated, it is highly unlikely that it was a heart attack given the normal coronary artery. This also may have been a preexisting right ventricular damage caused by lung disease from chronic smoking. Also pulmonary emboli can cause right ventricular damage. Also a possibility is that he has a condition other than coronary artery disease or pulmonary emboli that affects his right ventricle. Analysis In pertinent part, 38 U.S.C.A. § 1151 provides 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 in death, disability compensation shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. In Brown v. Gardner, 115 S.Ct. 552 (1994), the United States Supreme Court held that VA's interpretation of 38 U.S.C. § 1151 as encompassing only additional disability resulting from VA negligence or from accidents during treatment was unduly narrow. The Supreme Court found that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. The Supreme Court further found that the then implementing regulation, 38 C.F.R. § 3.358(c)(3) (1991), was not consistent with the plain language of 38 U.S.C.A. § 1151 with respect the regulation's inclusion of a fault or accident requirement. However, the Supreme Court further held that not every "additional disability" was compensable. The validity of the remainder of 38 C.F.R. § 3.358 was not questioned. See Gardner, 115 S.Ct. 552, 556 n.3 (1994): "We do not, of course, intend to cast any doubt on the regulations insofar as they exclude coverage for incidents of a disease's or injury's natural progression, occurring after the date of treatment. . . .VA's action is not the cause of the disability in those situations." In sum, the Supreme Court found that the statutory language of 38 U.S.C.A. § 1151 simply requires a causal connection between VA medical treatment and additional disability but that not every additional disability is compensable. Thereafter, the Secretary of Veterans Affairs sought an opinion from the Attorney General of the United States as to the full extent to which § 1151 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. In essence, the Department of Justice opined that "our conclusion is that the [Supreme] Court intended to recognize only a narrow exclusion [to the "no fault" rule], confined to injuries that are the necessary, or at most, close to certain results of medical treatment." In March 1995, amended VA regulations were published to conform with the Supreme Court's decision. Section (c)(3) of 38 C.F.R. § 3.358 was amended to remove the "fault" requirement which was struck down by the Supreme Court. (a) General. Where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. (b) Additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran'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, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. (c) Cause. In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It 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. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) 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. 38 C.F.R. § 3.358 (1996). The veteran was furnished with the substance of the new regulation in a January 1996 Statement of the Case. In summary, then, under the 1995 version of 38 C.F.R. § 3.358(c)(3), compensation is precluded where disability (1) is not causally related to VA hospitalization or medical or surgical treatment, or (2) is merely coincidental with the VA hospitalization or medical or surgical treatment, or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized, or (4) is the certain or near certain result of the 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. However, effective October 1, 1997, 38 U.S.C.A. § 1151, relating to benefits for persons disabled by treatment or vocational rehabilitation, was amended by Congress. 38 U.S.C.A. § 1151 (West Supp. 1997). The purpose of the amendment is, in effect, to overrule the Supreme Court's decision in the Gardner case, which held that no showing of negligence is necessary for recovery under section 1151. A VA General Counsel Opinion, VAOPGCPREC 40-97 (December 31, 1997) addresses the issue of the effective date of the new statutory provision. The opinion includes an analysis of the legislative history of the new statute and applies principles of statutory construction to the exact terms of the statute. Essentially, the General Counsel holds that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the provisions of Section 1151 as they existed prior to that date. In other words, all 1151 claims, such as this veteran's claim, which were filed before October 1, 1997, must be adjudicated under the statutory provisions in effect when Gardner was reviewed by the Supreme Court, and under the regulatory provisions promulgated by the VA on March 16, 1995. The RO has evaluated the veteran's claim under the 1995 version of the regulations only and has not performed an analysis utilizing the newer provisions or a comparison of the two as applied to the veteran's claim. Under the subsequent holding of the General Counsel, the standards set forth in the 1995 regulations appear to be the appropriate standards under which this appeal should be reviewed and the Board will utilize this version as the RO did before us. In reviewing the medical evidence supporting the veteran's claim in contrast to that which weighs against the veteran's claim, the Board notes that the veteran's treating physician's comment that the mild congestive heart failure experienced a couple of weeks after the total knee replacement was most likely secondary to a myocardial infarction, represents the sole medical evidence tending to show a connection between the June 1995 knee surgery and current heart problems. Although the veteran has vigorously asserted his belief in the merits of his claim, because he is not a medical expert, he is not competent to express an authoritative opinion regarding either his current medical condition or any questions regarding medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In contrast to the physician's handwritten comment, the opinions of the December 1996 VA examiner and the October 1999 VA cardiac specialist weigh against the veteran's claim, as both physicians concluded after review of the veteran's claims file, including the veteran's physician's statement reflected above. The United States Court of Appeals for Veterans Claims (Court) has provided guidance in evaluating the evidentiary value of physicians' opinions. A medical opinion relating a current disability to service has more probative value when it takes into account the records of prior medical treatment so that the opinion is a fully informed one. See Wilson v. Derwinski, 2 Vet. App. 16, 20-21 (1991). Several Court decisions stand for the proposition that medical opinions which are speculative in nature are less probative. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). In applying the Court's guidance to the analysis of the medical evidence regarding this issue, the Board notes that it appears all three conclusions were reached after a consideration of the veteran's own reported history in conjunction with recent clinical records. Presumably, the veteran's treating physician was familiar with his pertinent clinical history, although she did not specifically note a review of his records in the treatment note in which she expressed her opinion. Thus, all three opinions were fully informed under the dictates of Wilson. Most importantly, however, the private physician's opinion is speculative in nature, especially when compared to the two comprehensive, and fully-explained VA opinions. The private physician qualifies her opinion by stating that the mild congestive failure experienced after the surgery was "most likely" secondary to a myocardial infarction. She does not directly relate the "likely" myocardial infarction to the surgery or to the administration of anesthesia during surgery other than by the subtle implication that the proximity in time between the surgery and the myocardial infarction may have been significant. Thus, under the holdings of Perman, Obert, and Stegman, this opinion has less probative value because of its speculative nature. By contrast, the VA examiner and the VA cardiac specialist took great pains to explain their conclusions that the veteran likely did not suffer a myocardial infarction at all in conjunction with or subsequent to the surgery. The October 1999 cardiac specialist especially presented a careful outline of the test results, clinical findings, and the reasonable medical interpretation of each. Both provided fully-explained opinions, as set forth above, supported by medical principles in addition to their own expertise to buttress their conclusion that the veteran did not heart disease or complications attributable to the general anesthesia administered during the June 1995 knee surgery and that his currently-shown heart problems were highly unlikely to be related to the anesthesia or the surgery. Both further attributed the veteran's symptomatology to a natural aging process, complicated by previous tobacco abuse, obesity, fluid overload, and the strain of rehabilitation from the total knee replacement, providing a medical explanation for the currently-shown disability. For these reasons, the Board concludes that the VA medical opinions are more probative than the private physician's opinion which is of record. In summary, the preponderance of the evidence is against the veteran's claim for disability compensation under the provisions of 38 U.S.C.A. § 1151. The medical evidence of record does not show that his disability is causally related to the VA medical and surgical treatment, was anything other than coincidental to the VA medical and surgical treatment. As discussed above, the Board has weighed the probative value of the medical opinions of record and has concluded that the two opinions which go against the veteran's claim are more probative. It is not asserted and the evidence does not show that the veteran's current heart problems represent the continuance or natural progress of diseases or injuries for which VA medical or surgical treatment was authorized (the right knee replacement), or that heart problems were the certain or near certain result of the VA medical or surgical treatment. Thus, entitlement to compensation for heart disease claimed to have resulted from VA medical treatment in June 1995 under the provisions of 38 U.S.C.A. § 1151 must be denied. ORDER Compensation for heart disease claimed to have resulted from VA medical treatment in June 1995 is denied. Heather J. Harter Acting Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE)