Citation Nr: 0002576 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-27 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability claimed to have resulted from left carotid artery surgery performed at a VA medical center (VAMC) in July 1996. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from March 1954 to March 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating action of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. On July 16, 1996, the veteran underwent a left carotid endarterectomy at a VAMC. 2. There is no competent medical evidence suggesting the veteran has additional disability which may be attributed to the surgery performed at the VA facility on July 16, 1996. CONCLUSION OF LAW The claim for benefits under 38 U.S.C.A. § 1151-for additional disability resulting from left carotid artery surgery performed at the VAMC in July 1996-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 I. Background In a November 1996 statement, the veteran made a claim for injury related to an operation at the VAMC in White River Junction, Vermont. He asserted that his left carotid artery was "20 percent open" prior to the operation, but was "0 percent open" after. He complained of vision problems and light-headedness and asserted that VA treatment made him worse, not better. VA medical records associated with the claims folder include the report of a July 11, 1996 carotid artery angiogram which revealed severe stenosis of the left internal carotid artery at its origin with an associated plaque and moderate to severe stenosis of the left carotid external artery. The veteran underwent a left carotid endarterectomy on July 16, 1996. At that time, it was noted that the veteran was status-post a left internal capsule stroke in 1993 with residual right-sided paresthesia and dysphasia and status- post transient ischemic attacks in 1990. The veteran's medical history was also considered significant for arteriosclerotic cardiovascular disease with stable angina. A carotid duplex study conducted in June 1996 had demonstrated an internal carotid artery/common carotid artery ratio of 1.29 on the left. Post-operatively, the veteran underwent a transcranial Doppler study which showed a "step up" in his carotid velocities. He was discharged to home on post-operative day 1 in stable condition. On July 25, 1996, the veteran presented with complaints of double vision and headaches behind his left eye. His recent carotid artery surgery was noted. The diagnostic impressions included possible reprofusion disturbance versus migraines. The veteran presented with similar left eye complaints in October 1996, at which time the impression was possible transient ischemic attacks (TIAs) versus late-onset migraines. A neurology consult conducted that day noted the veteran's complaints and his report that they began within 2- 3 days after the July 1996 endarterectomy. Following physical examination, the physician noted that it was "not really clear what these episodes [we]re." Several differential diagnoses were noted and additional testing was ordered. The report of a carotid arteriogram performed in October 1996 noted that the veteran's history of transient ischemic attacks with resulting right-sided hemiparesis. The veteran was noted to have complained of changes in vision since June. The angiogram revealed an occluded left internal carotid artery, considered a new finding since July. A carotid duplex scan done prior to the angiogram revealed a homogeneous thickening along the common carotid artery, resulting in a minimal 1-15 percent stenosis. The internal carotid artery previously reported to be occluded was patent. This spectrum was considered consistent with severe, 50-79 percent stenosis. A November 1996 medical certificate noted the veteran's report of "difficulty" with his left eye since the July 1996 surgery. Following physical examination of the eyes, the diagnostic impression was possible chronic vascular eye changes. An April 1997 Medical Certificate noted that the veteran was being evaluated to rule out giant cell arteritis in a setting of headaches and left monocular visions changes. It was noted that the symptoms had begun after the July 1996 carotid endarterectomy. The veteran's symptoms consisted of left sided retroorbital headaches coincident with monocular blurriness and white patchy deficit lasting 5-7 minutes, occurring approximately 3 times per week. Following physical examination, the assessment was that the veteran had intermittent left-sided monocular events in setting of extensive vascular disease suggestive of amaurosis fugax though possibly related to an atypical migraine. II. Analysis 38 U.S.C.A. § 1151 (West 1991) provides that, where any veteran shall have suffered an injury, or an aggravation of an injury, as a 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, compensation shall be awarded in the same manner as if such disability were service connected. 38 C.F.R. § 3.358 (1999), the regulation implementing that statute, provides, in part, 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 is compared with the subsequent physical condition resulting from disease or injury. Compensation will not be payable for the continuance or natural progress of disease or injuries for which 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 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. 38 C.F.R. § 3.358(b)(c). 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. 38 C.F.R. § 3.358(c)(3). In order to avoid possible misunderstanding as to the governing law, the Board notes that earlier interpretations of the statute and regulations required evidence of negligence on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to 38 U.S.C.A. § 1151 benefits. See, e.g., 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter, the Court) 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 published an interim rule amending 38 C.F.R. § 3.358 to conform to the Supreme Court decision. The amendment was made effective November 25, 1991, the date of the Gardner decision by the Court. 60 Fed. Reg. 14,222 (March 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) (1997). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude benefits in the absence of evidence of VA negligence or an unforeseen event. Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (1996); see also VAOPGCPREC 40-97 (Dec. 31, 1997). Since the veteran'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. Therefore, neither evidence of an unforeseen event nor evidence of VA negligence would be required in order for this claim to be granted. The threshold matter to be addressed regarding the veteran's § 1151 claim is whether it is well-grounded. If not, the claim must fail, and there is no further duty to assist him in the development of the claim. 38 U.S.C.A. § 5107; See Murphy, supra. The essential elements needed to make a claim under Section 1151 plausible are competent evidence of additional disability or death of the veteran; evidence of hospitalization, medical or surgical treatment, or a course of vocational rehabilitation by the VA; and competent evidence of a nexus between the additional disability or death and the hospitalization, treatment, or vocational rehabilitation. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. Evidentiary assertions by the claimant 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 claimant. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran has asserted that, as a result of the July 1996 surgery, his left carotid artery is more occluded than prior to the surgery, and he suffers headaches and visual impairment. The evidence of record includes complaints and findings related to headaches and visual changes and notations of the veteran's report of the onset of those symptoms shortly after the July 1996 surgery; however, there is no competent medical evidence suggesting his symptoms resulted from that VA treatment. Evaluations of his complaints from July 1996 to April 1997 included consideration of numerous differential diagnoses; yet, they resulted in a final diagnostic assessment of intermittent left-sided monocular events in a setting of extensive vascular disease suggestive of amaurosis fugax possibly related to an atypical migraine. While the physicians who rendered the diagnoses noted the veteran's July 1996 carotid artery surgery-by history-none related any of their clinical findings to that surgery. Consequently, their purely historical notations do not constitute the medical nexus evidence required to well ground the claim. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence" required by Grottveit v. Brown, 5 Vet. App. 91 (1993), to well ground the claim). Regarding the veteran's claim that VA treatment worsened the condition of his left carotid artery, the Board notes that prior to the surgery, the veteran was noted to have severe stenosis of the left internal carotid artery and moderate to severe stenosis of the left external carotid artery. The threshold element of the three necessary for a well-grounded claim under § 1151 is that there must be competent medical evidence of additional disability as a result of the treatment in question. In the instant case, because the veteran had a well-established diagnosis of stenosis of the left carotid artery prior to the surgery, which was being treated, the evidence would have to show, not only that the condition increased in severity, but that the increase was a result of the VA treatment. This is not shown here. The Board notes that initial diagnostic testing performed after the July 1996 surgery revealed a "step-up" in carotid velocities, but an October 1996 carotid arteriogram revealed an occluded left internal carotid artery. It also was noted that the veteran had "extensive vascular disease." Despite the apparent increase in severity of the left carotid artery occlusion, there is no medical evidence of record suggesting any sort of causal relationship or correlation between those findings and the VA treatment in July 1996. The only nexus evidence in this case is in the veteran's own assertions. He has not presented any competent (medical) evidence in support of his claim. As a lay person, he is not competent to provide such evidence through his own opinion. See King, supra; Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). Without competent evidence of a medical nexus between the veteran's current condition and the VA treatment in July 1996, the claim is not well grounded and must be denied. ORDER As evidence of a well-grounded claim has not been submitted, compensation under 38 U.S.C.A. § 1151-for additional disability claimed to have resulted from the left carotid artery surgery performed at the VAMC in July 1996-is denied. KEITH W. ALLEN Acting Member, Board of Veterans' Appeals