Citation Nr: 0001419 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 96-19 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a heart condition as the result of a VA hospitalization in June 1994. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had periods of active service from May 1944 to April 1965, concluding with his retirement after more than 20 years' active service. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in August 1995 which denied the claimed benefits. In August 1999, a hearing was held at the Board before C.W. Symanski, who is a member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). FINDINGS OF FACT 1. The veteran was hospitalized at a VA facility in June 1994 for treatment of a pre-existing heart condition. During that hospitalization he underwent a percutaneous transluminal coronary artery angioplasty that resulted in a large myocardial infarction. 2. The myocardial infarction resulted in additional disability, was not due to the veteran's own willful misconduct, was not due to the natural progression of the pre-existing heart disease, and was not a necessary consequence of the treatment that was rendered. CONCLUSION OF LAW Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a heart condition, as the result of a hospitalization at a VA facility in June 1994, are warranted. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. §§ 3.358(c), 3.800 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The records reflect that service connection is currently in effect for hypertrophic arthritis, for which a 60 percent rating has been assigned. Service connection has not been established for any heart condition. The veteran was hospitalized at a VA facility in early June 1994. It was noted that he had a history of stable exertional angina which had diminished significantly in frequency due to the veteran's own modulation of his physical activity. Two years previously he had undergone a Thallium exercise stress test which was reportedly positive. There was no recent history of chest pain, shortness of breath, or dyspnea on exertion. During that hospitalization he underwent cardiac catheterization which reportedly revealed coronary artery disease, with 90-95 percent stenosis of one artery, 30-40 percent stenosis in another artery, and a normal ejection fraction of 60 percent, with normal regional wall motion. The veteran was readmitted to a VA facility later in June 1994 for elective percutaneous transluminal coronary angioplasty (PTCA). The risks and benefits were explained to him and he signed a consent form for that procedure; the listed potential risks included heart attack, emergency coronary artery bypass surgery, and death. Several hours after the procedure, which appeared initially to be successful, he experienced severe chest pain and decreased blood pressure. It was determined that he had sustained an acute anterior myocardial infarction. The following day, he underwent cardiac catheterization and repeat PTCA to reopen the completely occluded artery. The records indicate that the remainder of the hospitalization was uneventful and unremarkable. Private outpatient records dated in August 1994 state that the veteran had recently undergone a Thallium stress test that showed poor exercise tolerance; the examination was interrupted because of shortness of breath without chest pain. The study revealed diminished wall motion in several areas and scarring of the inferior portion of the heart, with moderately depressed global systolic ventricular function and an ejection fraction of 35 percent. The examiner noted that, since his last visit, the veteran had complained of easy fatigability and shortness of breath on exertion. The reported assessment included residuals of a large anterior wall myocardial infarction following a failed PTCA and residual ischemia. The records indicate that the veteran had increasing fatigue and recurrent angina. He underwent a repeat cardiac catheterization in August 1994 which reportedly showed restenosis at the site of the PTCA and an ejection fraction of 25-30 percent, mild to moderate mitral regurgitation, and an enlarging left ventricle with anterior anteroseptal (sic) akinesis. Coronary artery bypass grafting was also accomplished that month at a private hospital. Because of increasing fatigue and chest discomfort he had a stress evaluation in May 1995 that showed poor exercise tolerance and fixed defects in the anterior anteroseptum and inferior wall. In April 1995, the veteran filed a claim for compensation benefits for his heart condition pursuant to 38 U.S.C.A. § 1151. The veteran was hospitalized in June 1995 following two episodes of chest pain. Repeat cardiac catheterization during that hospitalization revealed akinesis of the inferior wall, an apical ventricular aneurysm, and diffuse hypokinesis otherwise, with an ejection fraction of 30-50 percent. A VA compensation examination in July 1995 states that the veteran was "doing somewhat better." The examiner felt that his subjective symptoms and objective findings were suggestive of continued problems with ischemia. The veteran's angina was classified as Class II. He reported that his main problem was intense fatigue; chest pain did not appear to be a prominent part of his clinical picture. He also stated that he had some shortness of breath if he tried to do any yard work. Private medical records dated in December 1995 indicate that the veteran still reported intermittent shortness of breath, with exertional chest pain and significant psychological aftermath of his cardiac experience. Notations in the private medical records indicate that the first June 1994 PTCA "led to" the veteran's myocardial infarction. Statements from the veteran's son and daughter in June and July 1996 note their recollection of some of the events immediately after the June 1994 PTCA. The veteran testified at personal hearings before a hearing officer at the RO in February 1997 and before the undersigned Member of the Board in Washington, DC, in August 1999. He described the events during his VA hospitalization in June 1994, as well as his subsequent treatment for his heart condition, and essentially stated his contention that the myocardial infarction that he sustained following the first June 1994 PTCA was caused by the PTCA which was improperly performed and that, therefore, he should be compensated for the heart damage and the functional impairment caused by that damage. Analysis At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). The statutory criteria applicable to this case appear at 38 U.S.C.A. § 1151, which provides that, if a veteran suffers an injury or an 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, 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), 38 C.F.R. § 3.800(a). The regulations provide 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 will be 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. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the veteran was hospitalized and/or treated. 38 C.F.R. § 3.358(b)(1), (2). In addition, the regulations specify that the additional disability or death must actually result from VA hospitalization or medical or surgical treatment and not merely be coincidental therewith. Further, compensation is not payable for the continuance or natural progress of disease or injuries for which the hospitalization was authorized. 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). The regulations further provide that 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 to result from, or were intended to result from, the medical or surgical treatment provided. 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 any misunderstanding as to the governing law, the Board notes that earlier interpretations of the statute and regulations required evidence of negligence or other fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to benefits under 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Veterans Appeals 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 of Veterans Affairs published an interim rule amending 38 C.F.R. § 3.358 to conform with the Supreme Court decision. The amendment was made effective November 25, 1991, the date the Gardner decision was issued by the Court of Veterans Appeals. 60 Fed. Reg. 14,222 (Mar. 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) (1999). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude compensation in the absence of negligence or other fault on the part of VA, or an event not reasonably foreseeable. Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (Sept. 26, 1996); see also VAOPGCPREC 40-97 (Dec. 31, 1997). Initially, the Board notes that the RO, in the April 1999 supplemental statement of the case, stated that the veteran's claim should be considered under the criteria that were in effect both before and after the revision of the statute in October 1997. The RO then denied the veteran's claim primarily on the basis of the law that became effective in October 1997. However, that application of the law is incorrect. VAOPGCPREC 40-97 clearly states that all claims for benefits under 38 U.S.C.A. § 1151 that were filed before October 1, 1997, must be adjudicated under the provisions of § 1151 as they existed prior to that date. The veteran's claim was filed in April 1995. As noted above, the Supreme Court in Gardner invalidated that provision of 38 C.F.R. § 3.358(c)(3) that imposed a requirement that the additional disability be due to VA fault. The Supreme Court noted, however, that it did not intend to cast any doubt on the regulations insofar as they exclude coverage for incidents of a disease or injury's natural progression, occurring after the date of treatment. See 38 C.F.R. § 3.358(b)(2). In addition, the Supreme Court stated that it would be unreasonable to believe that Congress intended to compensate veterans for the necessary consequences of treatment to which they consented, e.g., compensating a veteran who consents to the amputation of a gangrenous limb for the loss of the limb. Thus, applying the facts of this case to the legal criteria set forth above, the Board finds that the veteran clearly incurred additional disability during the course of treatment at a VA facility in June 1994, inasmuch as the medical evidence shows that he sustained a myocardial infarction within hours after undergoing a PTCA and that the infarction resulted in a significant permanent decrease in his cardiac function, increased symptomatology, and a decrease in his overall functional capacity. The myocardial infarction was clearly not the intended result of the VA treatment that was rendered (indeed, the intent was to reduce the chance that the veteran would have a myocardial infarction), nor did the veteran consent to such a result, although a heart attack was listed as a potential risk on the consent form. Moreover, there is no evidence that the additional disability was due to the natural progression of the disease process for which the treatment was rendered. In fact, there is medical evidence that the PTCA itself "led" to the myocardial infarction. Therefore, the Board finds that the evidence clearly shows that the veteran sustained an injury as a result of VA treatment, that the injury was not the result of the veteran's own willful misconduct, and that the injury resulted in additional disability. Accordingly, VA compensation benefits should be awarded in the same manner as if the additional disability were service-connected. 38 U.S.C.A. §§ 1151, 5107; 38 C.F.R. §§ 3.358, 3.800. The Board notes that, inasmuch as the veteran had coronary artery disease and some resultant symptomatology prior to the VA hospitalization in question, the amount of compensation benefits that are payable should be based on the degree of additional disability that resulted from the VA treatment. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability that was sustained as a result of VA hospitalization in June 1994 for a heart condition is granted. C. W. Symanski Member, Board of Veterans' Appeals