BVA9507670 DOCKET NO. 90-29 798 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: A Member of the Veterans Services Division of the Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran was a civilian worker captured on Wake Island in December 1941. Under the provisions of 38 C.F.R. § 3.7(x)(6), he had active service from December 1941 to October 1945. He was a prisoner of war of the Japanese from December 1941 to September 1945. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1989 rating decision of the Salt Lake City, Utah, Regional Office (RO). In a November 1990 decision, the Board denied entitlement to benefits pursuant to 38 U.S.C.A. § 1151 (formerly § 351) for death caused by medical treatment rendered by the Department of Veterans Affairs (VA) during March 1989. Subsequently, the appellant appealed the Board's November 1990 decision to the United States Court of Veterans Appeals (Court). Following the Court's decision in Gardner v. Derwinski, 1 Vet.App. 584 (1991), the Court remanded this case to the Board in April 1992 for readjudication in light of the Court's determination that 38 C.F.R. § 3.358(c)(3), a portion of the regulation the VA used in deciding claims under 38 U.S.C.A. § 1151, was invalid. [citation redacted]. The case was then subject to a VA-wide stay of all cases affected by Gardner v. Derwinski, pending further appellate review of the Court's decision in that case. The Gardner decision was subsequently affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed.Cir. 1993). That decision was also appealed and in December 1994, the United States Supreme Court affirmed the lower courts' decisions in Brown v. Gardner, ___ U.S. ___, 115 S.Ct. 552 (1994). Thereafter, the Secretary of the VA (Secretary) sought an opinion from the Attorney General of the United States as to the full extent to which benefits were authorized under the Supreme Court's decision. The requested opinion was received from the Department of Justice's Office of Legal Counsel as to the full extent to which benefits were authorized under the Supreme Court's decision on January 20, 1995. On March 16, 1995, amended VA regulations were published to conform with the Supreme Court's decision. Accordingly, the case is now ready for review by the Board in compliance with the April 1992 Order of the Court, the subsequent decisions of the appellate courts, and the newly promulgated legal criteria. REMAND As noted above, in Gardner v. Derwinski, 1 Vet.App. 584 (1991), the Court invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that section of the regulation, which included an element of fault, did not properly implement 38 U.S.C.A. § 1151. 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 light of the United States Supreme Court's decision the VA has changed 38 C.F.R. § 3.358(c) to eliminate the requirement of fault. Section(c)(3) now provides: 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. 60 Fed. Reg. 14,223 (1995). The Court of Veterans Appeals has held that "[w]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the] appellant generally applies." White v. Derwinski, 1 Vet.App. 519, 521 (1991). See also Karnas v. Derwinski, 1 Vet.App. 308 (1991). Moreover, decisions and interpretations made by the Court are binding as of the date of issue. Tobler v. Derwinski, 2 Vet.App. 8 (1991). Thus, the appellant's claim must now be considered under the provisions of the "new" 38 C.F.R. § 3.358(c). Furthermore, as there is a change in the legal criteria for adjudicating these claims, the appellant must be provided full notice and have an opportunity to be heard at the RO so that prejudice does not result. Bernard v. Brown, 4 Vet.App. 384 (1993). The appellant has alleged that the veteran's death was prematurely caused by a series of medical actions beginning with the administration of the drug, MS-Contin. She contends that the side-effects of this drug caused the veteran to fall and that the veteran's noted confused mental state at time of admission was either directly or indirectly the result of the MS-Contin. A review of the veteran's VA medical records discloses that MS- Contin was briefly prescribed by a VA physician but it was discontinued in November or December 1988 because of side-effects on the central nervous system. Medical records received from the University of Utah, dated in February 1989, show that the veteran was prescribed MS-Contin, at a dosage of 30 mg, for pain control. An additional note indicates that the veteran subsequently reported increased unsteadiness and falls; he was advised to use a walker. It is unclear what the relationship between the University of Utah and the VA Medical Center might be. That matter should be clarified while the case is in Remand status. The Board notes that MS-Contin is a controlled-release tablet containing morphine sulfate. Information obtained from the 1993 Physician's Desk Reference indicates that morphine is known to produce respiratory depression, especially in elderly patients. A review of the VA hospital records from the veteran's hospitalization in March 1989 indicates no awareness that the veteran had recently been prescribed MS-Contin. (The only medications listed at time of admission were Amitriptyline and Salsalate.) The chief complaint at admission was dementia and agitation for three days. At admission, his worsening hypoxia was felt to be secondary to massive tumor involvement of both the lungs; the veteran's confused state was initially presumed to be secondary to hypercalcemia. However, it was noted that his serum calcium had been elevated in the past without evidence of confusion. The veteran's confusion and agitation increased with worsening hypoxia. After obtaining the wishes of the veteran's spouse and family, "DO NOT RESUSCITATE" orders were issued on March 10. A morphine drip was then begun and comfort measures provided. The veteran died on March [redacted] 1989. The appellant has contended that the VA had provided the MS- Contin, but that is not clear from the evidence on file. The medication control records do not show that the VA had recently provided MS-Contin to the veteran. In light of the change in law and the fact that, possibly unbeknownst to the VA treating physicians at the time of the veteran's admission on March 3, 1989, the veteran had been prescribed MS-Contin in February 1989 by his private physician, the Board has determined that the appellant's case should be REMANDED to the RO for the following action. 1. A determination should be made as to what the relationship was between the University of Utah Hospital and the VA. Specifically, it should be determined whether there is a fee basis arrangement, whether the VA has any use or control of facilities, and it should be determined whether the VA referred the veteran to the University of Utah hospital in early 1989. If so, a determination should be made as to how soon thereafter his medical records were associated with the VA hospital chart. The VA Administrative records for this veteran should be obtained and associated with the claims folder as part of this development. 2. The RO should obtain a medical opinion from a VA pulmonary specialist as to whether the veteran's death was proximately due to or caused by medical treatment afforded the veteran by the VA from the time of his admission on March 3, 1989 until the time of his death on March [redacted] 1989. Contraindications, if any, for the administration of MS-Contin to the veteran, should be discussed. The specialist should comment on whether the veteran's deterioration could have been prevented, if at the time of admission, the VA physicians had begun a different course of treatment. The entire claims file and associated medical records folders must be made available to and reviewed by the medical specialist prior to the requested study and opinion. It should be emphasized to the examining specialist that "fault" or medical "negligence" is not at issue. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested medical opinion does not include all information requested, appropriate corrective action is to be implemented. 4. After the development requested above has been completed to the extent possible, the RO should adjudicate the appellant's claim for death benefits under the provisions of 38 U.S.C.A. § 1151 and the "new" provisions of 38 C.F.R. § 3.358(c). If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case and they should be afforded the appropriate period of time within which to respond thereto. Then, if otherwise in order, the case should be returned to the Board for further appellate consideration. No action is required of the appellant until she is notified. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).