Citation Nr: 0004540 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-03 174 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for disability resulting from VA hospitalization or treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from August 1941 to September 1945. This matter comes to the Board of Veterans' Appeals (Board) from a December 1997 rating decision of the Department of Veterans Affairs (VA) Salt Lake City Regional Office (RO) which denied the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for disability resulting from VA hospitalization and treatment. FINDING OF FACT Competent evidence has been submitted linking the post- service findings of an epidural abscess to a VA hospitalization. CONCLUSION OF LAW The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for disability resulting from VA hospitalization or treatment is well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDING AND CONCLUSION In pertinent part, the language of 38 U.S.C.A. § 1151 in effect when the appellant filed his claim provides that when a veteran shall have suffered an injury, or aggravation of an injury, as the result of VA hospitalization, medical or surgical treatment, not the result of his or her own willful misconduct, and such injury or aggravation results in additional disability or death, disability compensation will be awarded in the same manner as if such disability, aggravation, or death were service connected. See 38 C.F.R. § 3.358(c) (1997) (requiring only a causal connection between VA medical treatment and additional disability). The appellant's claim for compensation under 38 U.S.C.A. § 1151 was received at the RO in August 1997. Because his claim was filed after VA published this regulatory change and well after the effective date of the change, it is governed by the amended regulation, rather than the earlier regulation interpreted by Gardner. The amended 38 C.F.R. § 3.358(c)(1) provides that "[i]t 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." Section 3.358(b)(2) provides that compensation will not be payable for the continuance or natural progress of disease or injuries. Section 3.358(c)(3) now provides that "[c]ompensation 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." Thus, under the new 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 disease or injury 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. The appellant's claim must be evaluated in light of these criteria.? II. Analysis The threshold question that must be resolved is whether the appellant has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for compensation under 38 U.S.C.A. § 1151 requires medical evidence of a current disability, lay or medical evidence of incurrence or aggravation of an injury or disease as a result of hospitalization, medical or surgical treatment, and medical evidence linking the asserted injury or disease to the current disability. Jones (James) v. West, 12 Vet. App. 460, 463-64 (1999). Cf. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (well-grounded direct service-connection claim requires competent medical evidence of current disability, lay or medical evidence of incurrence or aggravation of disease or injury in service, and competent medical evidence of a nexus between the two). As to the first element of a well-grounded claim, requiring competent medical evidence of a current disability, Jones, 12 Vet. App. at 463-64, the record includes ample evidence that the appellant suffered from a lumbar spine epidural abscess. The appellant was hospitalized from June to August 1996 at a VA medical facility with complaints of back pain. A magnetic resonance image (MRI) of the lumbar spine showed an epidural abscess and lumbar decompression. He underwent drainage and evacuation of the abscess and lumbar laminectomy. In subsequent VA clinical, examination, and hospital records, the appellant continued to complain of and be treated for low back pain. This evidence satisfies the first element of a well-grounded claim. The second element of a well-grounded claim requires lay or medical evidence of incurrence or aggravation of an injury or disease as a result of hospitalization, medical or surgical treatment. Id. The appellant alleges that his low back symptomatology is the result of the epidural abscess and that the abscess is related to an infection in a lumbar spine wound caused by a spinal tap or block. He and a friend testified that he received the spinal tap or block during his March to April 1996 VA hospitalization for heart disease, during which time he underwent quadruple coronary artery bypass graft. The record includes documentation of that hospitalization. The appellant's friend testified that she saw a tube inserted into the appellant's back during that hospitalization and that nurses and a doctor told her the abscess was caused by bacteria from fecal matter. (See Transcript of March 1998 Hearing, at 2-8.) The truthfulness of this evidence must be presumed when determining whether a claim is well grounded. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). Thus, this evidence satisfies the second element of a well- grounded claim. The third element of a well-grounded claim requires medical evidence linking the asserted injury or disease (infected spinal tap or block wound) to the current disability (residuals of an epidural abscess). Jones, 12 Vet. App. at 463-64. A June 1996 VA hospital record indicated that the abscess was secondary to an infection from a femoral bypass procedure. The appellant underwent a femoral-popliteal bypass at a VA hospital in July 1993. While he contends that the abscess developed from a spinal procedure during the March to April 1996 hospitalization, the June 1996 hospital record points to another VA hospitalization. That distinction, though, is insignificant. The fact remains that the record includes competent evidence of an epidural abscess, evidence of a femoral bypass in July 1993 conducted at a VA medical facility, and medical evidence linking the two. The record thus includes evidence satisfying the third and final element of a well-grounded claim. Accordingly, the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for disability resulting from VA hospitalization or treatment is well grounded. ORDER The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for disability resulting from VA hospitalization or treatment is well grounded. (CONTINUED ON NEXT PAGE) REMAND Because the claim is well-grounded, VA has a duty to assist the appellant in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a). In addition to the June 1996 VA hospital record indicating that the abscess was secondary to an infection from the July 1993 femoral bypass procedure, other June 1996 VA hospital records suggested other etiologies. Various entries discussing the etiology of the epidural abscess identified muscle strain, herniated disc, osteomyelitis, degenerative joint disease, lumbar discitis, a staph/strep infection, and bacteroides bacteremia. In order to clarify the etiology of the appellant's epidural abscess and the low back symptomatology, the case is REMANDED for the following development: 1. The RO should arrange for the appellant's entire claims file, including all VA medical records, be provided for evaluation by a VA physician. The claims folder and a copy of this REMAND must be made available to the physician for review. The RO should ask the physician to review the entire claims folder, including this Remand, and render an opinion as to the etiology of the epidural abscess first noted in June 1996. The physician should also be asked to opine (1) whether the epidural abscess is related to the July 1993 femoral bypass procedure or to some other etiology and (2) whether the low back symptomatology subsequent to June 1996 is related to an epidural abscess. 2. When the aforementioned development has been completed, the RO should review the record to ensure it is in compliance with this REMAND. If not, the RO should undertake remedial action before returning the claim to the Board. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals ? Effective on October 1, 1997, Congress amended 38 U.S.C.A. § 1151. See 38 U.S.C.A. § 1151 (West Supp. 1999). The effect of the amendment was to reverse Gardner, which held that no showing of negligence was necessary for recovery under section 1151. However, this change in the law is inapplicable to the appellant's claim as the claim was filed before October 1, 1997. See VA O.G.C. Prec. Op. No. 40-97 (Dec. 31, 1997) (holding that 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).