Citation Nr: 0001711 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 95-41 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318 (West 1991). 3. Entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1151 (West 1991) for additional disability, consisting of Acquired Immune Deficiency Syndrome (AIDS), claimed as associated with treatment rendered during VA hospitalization beginning in June 1992. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and two of her daughters ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The veteran served on active duty from April 1965 to June 1969. He died in February 1995 from end stage AIDS. At the time of his death the veteran was service-connected pursuant to 38 U.S.C.A. § 1151 for residuals of cerebrovascular accident (CVA) secondary to carotid artery puncture (100%), residuals of CVA affecting the left lower extremity (80%), and residuals of CVA affecting the left upper extremity (40%). He was also service connected for chronic peptic ulcer disease (20%). This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1995 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO). FINDINGS OF FACT 1. The veteran died on February [redacted], 1995, at a VA hospital due to end stage AIDS. 2. Other significant conditions contributing to the veteran's death, but not resulting in the underlying cause, were infected herpes zoster ulcerations and cerebrovascular accident. 3. At the time of his death, the veteran was service- connected pursuant to 38 U.S.C.A. § 1151 for residuals of cerebrovascular accident (CVA) secondary to carotid artery puncture (100%), residuals of CVA affecting the left lower extremity (80%), and residuals of CVA affecting the left upper extremity (40%); he was also service connected for chronic peptic ulcer disease (20%). 4. Testimony rendered by the appellant and two of her daughters establishes that the appellant was incapable of taking care of himself due to the effects of the June 1992 CVA, and that he weak and feeble due to the effects of the June 1992 CVA; residuals of CVA were debilitating in nature. 5. The veteran's June 1992 CVA damaged his brain, a vital organ, which caused hemiplegia of the left side and hemiparesis of the right side, and made him incapable of tending to his well-being, including resisting the effects of disease or injury. 6. The veteran was materially less capable of resisting the effects of disease or injury primarily causing death because of the debilitating effects of the June 1992 CVA and general impairment of health attributable thereto. 7. Service-connected residuals of the veteran's CVA were of such severity as to have a material influence in accelerating his death. CONCLUSIONS OF LAW 1. Service-connected disability contributed to the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 1991); 38 C.F.R. § 3.312 (1999). 2. The criteria for Death and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. §§ 1318, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. BACKGROUND The veteran entered a VA hospital in June 1992 due to upper gastrointestinal bleeding secondary to service-connected gastric ulcer. Operations performed included subtotal gastrectomy, gastrojejunostomy, exploratory laparotomy, and lysis of adhesions. On the day of surgery the veteran sustained a severe cerebrovascular accident (CVA) immediately after placement of a central line in the right internal jugular vein for hyperalimentation; the carotid artery was entered inadvertently with the localizing needle and the veteran was noted within 5 minutes to have a hemiplegia of the left side and hemiparesis of the right side. VA hospital records note that the veteran had had a prior CVA in 1988 with only some residual hemiparesis. After the carotic artery was entered inadvertently during preparation for surgery in June 1992, hemiparesis on the right side was found to be worse and the left side was completely plegic. These records show that the veteran received several units of blood during his admission. During hospitalization in June 1992, the veteran was treated for multiple infections and stabilized for transfer to the extended care unit for rehabilitation. At this time, he complained of hoarseness, but had no other complaints. Vital signs were stable and he was afebrile. VA treatment records dated June 1992 to January 1993 reflect rehabilitative therapy for residuals of the June 1992 CVA. In August 1993, service connection was established pursuant to 38 U.S.C.A. § 1151 for residuals of cerebrovascular accident (CVA) secondary to carotid artery puncture (100%), residuals of CVA affecting the left lower extremity (80%), residuals of CVA affecting the left upper extremity (40%). In August 1993, a VA aid and attendance examination was conducted. The veteran had some use of his upper extremities; he was able to self-feed and wash his face, but he was unable to open cartons, prepare meals, and to dress himself although with assistance he could put on a shirt. The lower extremities showed generalized muscle wasting, but he could ambulate with a walker very slowly for short distances. He stayed in a wheelchair most of the time, except when in rehabilitation. He transferred from bed to chair with assistance. The examiner found that the veteran was essentially wheelchair bound, leaving home only for medical appointments. It was noted that the veteran required almost total care with the activities of daily living, including toilleting. VA treatment records dated June 1993 reflect a diagnosis for contact dermatitis. An x-ray study of the chest revealed no evidence of pulmonary disease. VA treatment records dated March to December 1994 reflect follow-up for status post partial gastrectomy. A VA hospital discharge summary for the period of December 1994 to January 1995 reflects that the veteran was admitted for complaints of itching lesions on his back that coalesced and formed an extensive superficial ulcer. He reported 1 week of chills and was noted to have fever on admission. By history, he did not engage in intravenous drug use and he lived with his wife at home although he had lived in a nursing home for a brief period of time following the June 1992 CVA. The veteran was placed on Oxacillin intravenously for skin lesions, diagnosed as infected herpes zoster. At discharge, the veteran was afebrile with good healing of ulcers. Other disorders noted at discharge included old CVA, described as stable since admission, and microcytic anemia, which was to be evaluated further by the Hematology Clinic. The veteran was discharge with no restrictions. An addendum to the January 1995 discharge summary was prepared 5 days after the veteran's release and reflects primary diagnoses for HIV (human immunodeficiency virus) positive, and severe iron-deficiency anemia. It was noted that an HIV test was conducted during the hospital admission, which was returned as positive. A VA hospital (terminal) summary for the period of February 9 to 16, 1995, reflects that the veteran was admitted for nutritional support and wound care for herpetic lesions and severe deconditioning. It was noted that the extended care unit knew the veteran because last year he had extensive rehabilitation for vascular stroke with left hemiparesis. It was further noted that the veteran was recently diagnosed with HIV. The veteran responded to therapy for the skin lesions and was transferred to the extended care unit for strengthening, but he continued to deteriorate and he refused intravenous fluids and blood drawing. He requested comfort measures only. The veteran was notified of a poor prognosis. He was found without vital signs on February 16, 1995. According to a death certificate, the veteran died on February [redacted], 1995, due to end stage AIDS. Other significant conditions contributing to death but not resulting in the underlying cause included infected herpes zoster ulcerations and CVA. The veteran's spouse thereafter filed a claim for service connection for the cause of the veteran's death, as well as, a claim for Death and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. §§ 1318 and 1151 (West 1991). In October 1999, a video conference hearing was conducted before the undersigned. The appellant and her two daughters testified that they believed that the veteran's CVA in June 1992 contributed to his cause of death and/or that AIDS was incurred as direct result of blood transfusions received during the veteran's hospitalization beginning in June 1992, which in turn directly cause his death. The veteran's family acknowledge that they were unaware the veteran had AIDS until shortly before his death in 1995. The appellant testified that, after the veteran's CVA in 1992, he resided in a nursing home for about 6 months but that the care was inadequate so he returned home. It was noted that the veteran was essentially wheelchair bound and required the assistance of another individual to tend to the activities of daily living. One of the appellant's daughters indicated that, prior to the veteran's terminal hospital admission, she returned home to find him with chills and a fever. She and her mother ran a warm bath for the veteran and discovered the skin ulcerations upon lifting him into the tub. She stated that they cleaned him as best they could and transported him immediately to the hospital, where he died a few days later. She further indicated that nobody told her or the family that the veteran was under treatment for HIV. The appellant and her daughters testified that the family provided the veteran constant in-home care when he was not in the nursing home because he was entirely unable to meaningfully care for himself. II. ANALYSIS A. Cause of Death Claim Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that her claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). The veteran died on February [redacted], 1995, at a VA hospital. According to the death certificate, the cause of death was end stage AIDS. Other significant conditions contributing to death but not resulting in the underlying cause were cited as infected herpes zoster ulcerations and CVA. No autopsy was performed. At the time of his death the appellant was service-connected pursuant to 38 U.S.C.A. § 1151 for residuals of CVA secondary to carotid artery puncture (100%), residuals of CVA affecting the left lower extremity (80%), and residuals of CVA affecting the left upper extremity (40%). He was also service connected for chronic peptic ulcer disease (20%). It is contended, by or on behalf of the appellant, that the veteran's service-connected residuals of CVA contributed to his death. The Board finds that the death certificate clearly and unequivocally supports this contention since it lists CVA as a contributory factor in the veteran's death. Additionally, testimony rendered by the appellant and two of her daughters establish that the appellant was entirely weak and feeble due to the service-connected residuals of CVA, which were rated at the 100 percent plus disability level. Therefore, the Board finds that the veteran was indeed service-connected for a debilitating condition. See Webster's II New Riverside University Dictionary (1988) (definition of debilitate: to make weak or feeble). Also, the record shows that the veteran's June 1992 CVA damaged his brain, a vital organ, which caused hemiplegia of the left side and hemiparesis of the right side, and made him incapable of tending to his well-being, including resisting the effects of disease or injury. The testimony and medical evidence of record reflects that the veteran was essentially wheelchair bound and incapable of taking care of himself, including those activities of daily living. We observe that sworn testimony reflects that the veteran was incapable or unable to inform his family about the presence of severe, infected ulcerations on his back most likely because he could not feel these ulcerations due to the paralysis associated with his CVA. Although it was unknown to the veteran and his family that he had AIDS/HIV, the primary cause of his death, the residuals of his CVA made him less capable of noticing other physical illnesses and, thereby, made him materially less capable of resisting the effects of AIDS/HIV. This is further supported by the death certificate, which cites CVA as a contributory cause of death. Having considered the appellant's contentions in conjunction with the objective medical evidence of record, the Board concludes that there is a reasonable basis for holding that service-connected residuals of the veteran's CVA were of such severity as to have a material influence in accelerating his death. Accordingly, service connection for the cause of the veteran's death is granted. B. DIC Based on the Provisions of 38 U.S.C.A. § 1318 Pursuant to 38 U.S.C.A. § 1318, the Secretary shall pay benefits under this chapter to the surviving spouse and to the children of a deceased veteran described in subsection (b) of this section in the same manner as if the veteran's death were service connected where the veteran dies, not as a result of the veteran's own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death. 38 U.S.C.A. § 1318(b)(1). The implementing regulation, 38 C.F.R. § 3.22 provides, in pertinent part, that benefits authorized by section 1318 of Title 38, United States Code, shall be paid to a deceased veteran's surviving spouse when the veteran's death was not caused by his or her own willful misconduct and the veteran was in receipt of or for any reason (including receipt of military retired or retirement pay or correction of a rating after the veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation at the time of death for a service-connected disablement that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death. The Board notes that during the pendency of the current appeal, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") rendered several decisions specifically on the issue of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 (West 1991). Weaver v. West, 12 Vet.App. 229 (1999); Wingo v. West, 11 Vet. App. 307 (1998); Carpenter v. West, 11 Vet. App. 140 (1998); Green v. Brown, 10 Vet. App. 111 (1997). In those decisions the Court determined, in pertinent part, that a surviving spouse may be entitled, pursuant to 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22, to receive DIC benefits as if the veteran's death were service-connected by demonstrating that the deceased veteran hypothetically would have been entitled to receive 100 percent disability compensation based on his service-connected disabilities at the time of death and for a period of 10 consecutive years immediately prior to death, though he was for any reason (other than willful misconduct) not in receipt of that 100 percent compensation throughout that 10 year period. Wingo v. West, 11 Vet. App. 307 (1998); 38 U.S.C.A. § 1318(b) (West 1991); 38 C.F.R. § 3.22(a)(2) (1999). In this case, the Board finds that DIC benefits pursuant to 38 U.S.C.A. § 1318 are not warranted even with consideration of the liberalized standard set forth by the Court in recent decisions. The veteran died in February 1995 and the evidence of record does not establish that service-connected ulcer disease warranted a 100 percent disability evaluation for a continuous 10 year period prior to the veteran's death. Also, as the veteran did not sustain a CVA secondary to carotid artery puncture until June 1992, roughly 3 years prior to death, it is not possible that he had residuals of that procedure before to the June 1992 date. Therefore, he was not entitled to receive 100 percent disability compensation based on his service-connected residuals of CVA prior to June 1992. According, the preponderance of the evidence is against DIC benefits under the provisions of 38 U.S.C.A. § 1318 (West 1991). The Board notes that the provision of 38 C.F.R. § 3.102 is not for application in this case as there is not an approximate balance of the positive and negative evidence, which does not satisfactorily prove or disprove the claim, for the reasons discussed above. C. Death and Indemnity Compensation Claims Based on the Provisions of 38 U.S.C.A. § 1151 The appellant argues that the veteran acquired HIV when he was infused with several units of blood during his hospital admission beginning in June 1992 for gastrointestinal bleeding. As such, it is her position that additional disability was sustained during this treatment that eventually directly caused the veteran's death. The Board has taken note of the appellant's contentions in this regard. However, as the claim based on 38 U.S.C.A. § 1151 is merely another vehicle or theory upon which to obtain death benefits, the Board finds this issue moot in light of the grant of service connection for the cause of the veteran's death. Accordingly, this claim is dismissed. ORDER Service connection for the cause of the veteran's death is granted. DIC based on the provisions of 38 U.S.C.A. § 1318 (West 1991) are denied. The claim for DIC based on the provisions of 38 U.S.C.A. § 1151 (West 1991) is dismissed. C.P. RUSSELL Member, Board of Veterans' Appeals