BVA9507895 DOCKET NO. 88-43 543 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 (formerly § 351) for residuals of an above-the-knee amputation of the right leg. REPRESENTATION Appellant represented by: Robert D. Marcinkowski, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and Margaret Maurer ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from September 1951 to September 1954. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 1986 rating decision of the Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO). In an April 19, 1991, decision, the Board denied entitlement to benefits pursuant to 38 U.S.C.A. § 351 for additional disability consisting of residuals of an above-the- knee amputation of the right leg caused by treatment rendered by the Department of Veterans Affairs (VA). Subsequently, the appellant appealed the Board's April 19, 1991, decision to the United States Court of Veterans Appeals (Court of Veterans Appeals). In March 1992, the Secretary of the VA, the appellee, filed with that Court an unopposed motion to remand the case for readjudication of the claim in light of that Court's decision in (Fred P.) Gardner v. Derwinski, 1 Vet.App. 584 (1991). By order rendered April 30, 1992, that Court granted the motion, vacated the Board's April 19, 1991, decision, and remanded the case for readjudication of the claim in light of Gardner. The Board stayed readjudication of the appellant's claim, pending appeal of Gardner. The decision was affirmed by the United States Court of Appeals for the Federal Circuit (Court of Appeals) in (Fred P.) Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), and subsequently appealed to the United States Supreme Court (Supreme Court). On December 12, 1994, the Supreme Court issued its decision in (Fred P.) Gardner, affirming the decisions of the Court of Veterans Appeals and the Court of Appeals. Brown v. (Fred P.) Gardner,__U.S.__, 115 S. Ct. 552 (1994). Thereafter, the Secretary of the VA sought an opinion from the Attorney General of the United States (Attorney General) as to the full extent to which benefits were authorized under the Supreme Court's decision. On January 20, 1995, the Secretary received an opinion from the Department of Justice's Office of Legal Counsel. On January 26, 1995, the Chairman of the Board announced the lifting of the Board's stay on the adjudication of cases affected by (Fred P.) Gardner involving claims for benefits under 38 U.S.C.A. § 1151 (formerly § 351). REMAND The Board's April 19, 1991, decision (vacated by the Court of Veterans Appeals) had denied the appellant's § 1151 claim under 38 C.F.R. § 3.358(c)(3), a section of the regulation implementing 38 U.S.C.A. § 1151. In that decision, the Board determined, in part, that the appellant's above-the-knee amputation of the right leg due to a malignant tumor, performed at the National Institute of Health (NIH) in August 1983, was not due to an earlier unforeseen accident or negligent medical treatment by the VA; and that a subsequent fracture of the right distal femur at the amputation stump was neither due to VA treatment nor resulted in additional disability. However, thereafter in (Fred P.) Gardner, that Court invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3) as then constituted, remain valid. See Brown v. (Fred P.) Gardner, 115 S. Ct. 552, 556 n.3 (1994). 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,...and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability..., disability or death compensation...shall be awarded in the same manner as if such disability, aggravation, or death were service- connected. 38 C.F.R. § 3.358, the regulation implementing that statute, provides, in pertinent part: Section (b) Additional disability. In determining that additional disability exists, the following considerations will govern: * * * * (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. (c) Cause. 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 training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) 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. A January 20, 1995, memorandum opinion from the Office of the Attorney General advised that as to required "causal connection", the Supreme Court had addressed three potential exclusions from coverage under 38 U.S.C.A. § 1151. The opinion explained, in pertinent part, that: Exclusion of the first two classes of cases would flow from the absence of the causal connection itself: if the intended connection is limited to "proximate causation"...then "remote consequences" of treatment may be excluded,...and "incidents of a disease's or injury's natural progression" properly are excluded by VA regulations because VA action "is not the cause of the disability in these situations.... VA recently published an interim final rule, 60 Fed. Reg. 14223 (1995) (to be codified at 38 C.F.R. § 3.358(c)) (proposed Mar. 15, 1995), which provides, in pertinent part: (3) 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. The appellant contends, in essence, that between January and June 1983, he sought treatment at a VA medical facility for a lump the size of a quarter on his right knee, but was not provided any treatment by VA until early June 1983, after the lump had grown to the size of a baseball. During July and August 1983 VA hospitalization, a biopsy of the lump proved it to be malignant, and an above-the-knee amputation of the right leg was performed later that August at NIH. He alleges that he was told that if the VA physicians had properly treated his leg sooner, it would not have required amputation. Additionally, he contends that in April 1984, during an open biopsy of the right distal femur at the amputation stump, the femur bone was fractured, presumably when a VA physician dropped a scalpel on that bone. It is argued that but for VA's negligence or failure to provide proper treatment, the above-the-knee amputation of the right leg would not have been necessitated, nor would additional disability from the fractured right distal femur at the amputation stump have occurred. Additionally, it is contended that the RO failed to seek administrative records related to the alleged VA treatment between January and June 1983, and did not attempt to contact certain medical personnel identified by the appellant for the purpose of having them confirm or support his contentions of negligence; and that this violated VA's duty to assist in development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board observes that although the evidentiary record reflects the RO has attempted to obtain relevant VA, NIH, and private medical records pertinent to the claim, another attempt to seek any additional such records may prove beneficial. Furthermore, medical opinion regarding the causative factors underlying appellant's above-the-knee amputation of the right leg and subsequently fractured right femur stump is indicated as well. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), which held that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. With regard to another matter, the Board's April 19, 1991, vacated decision had referred to January and November 1986 medical records, describing the fracture site in question. However, it appears that the claims folder does not currently contain these or more recent clinical records that specifically describe residuals of the femur fracture (e.g., whether the fracture is well-healed or disabling), information which is relevant to the question of whether additional disability is presently manifested. From a procedural due process standpoint, the RO has not adjudicated the claim under VA's interim final rule, 60 Fed. Reg. 14223 (1995). See Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991); and Spencer v. Brown, 4 Vet.App. 283, 288-89 (1993). 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). Additionally, it appears that the audio tape recording of the personal hearing held before members of a section of the Board in September 1989 no longer is intelligible, and VA does not have another copy of that recording or a transcript thereof. By statute, an appellant is entitled to a recorded hearing before a member of the Board who will make the final determination in the claim. 38 U.S.C.A. § 7102(b) (West 1991). See also 38 C.F.R. §§ 20.714(a)(5) (1994), requiring that a transcript be prepared and incorporated as part of the claims folder, where the Board's decision on an issue addressed at the hearing has been appealed to the Court of Veterans Appeals. Consequently, appellant should be offered the option of another hearing, unless he decides to waive this right. Accordingly, the case is REMANDED for the following: 1. The RO should contact the appellant and request the names and addresses of physicians or other health care providers and medical facilities which have provided him any relevant treatment regarding residuals of the above-the-knee amputation of the right leg and subsequent right distal femur fracture at the amputation stump site, and these records should be associated with the claims folder. Additionally, appellant should specify the names and addresses of medical personnel who may have personal knowledge of or material information regarding his contentions of VA negligence, and these individuals should be requested to provide the RO any such information or relevant records in their possession. In this regard, the RO should ascertain whether there is a Dr. Gelman and/or a nurse named Mrs. Marley at the VA Medical Center, Philadelphia, Pennsylvania, and if either or both can be located, he and/or she should be requested to provide any records of or recollection of contact with the appellant. 2. The RO should attempt to obtain any records pertaining to treatment of the appellant in or about August 1983 from the University of Pennsylvania Hospital. 3. The RO should attempt to obtain any additional, relevant medical and administrative records from VA Medical Center, Philadelphia, Pennsylvania, and associate these with the claims folder. These requested records include, but are not limited to: (a) any outpatient treatment reports and administrative records (such as appointment or pharmacy records) dated between January and June 1983, (b) all records pertaining to appellant's July to August 1983 hospitalization, including physicians' and nurses' notes, (c) any medical incident reports that may have been prepared regarding appellant's medical treatment during this period or the April 1984 biopsy procedure, and (d) any medical records dated subsequent to the April 1984 biopsy, which describe the residuals, if any, of the fracture of the right distal femur. 4. The appellant should be offered a choice of (a) being scheduled for another personal hearing before a member of the Board, or (b) proceeding to appellate review of the claim without scheduling another hearing. He should be advised in writing of the specific period within which to inform the Board of his preferred alternative. 5. The RO should have a physician or physicians, such as an oncologist, orthopedist, or surgeon, who have not previously examined the appellant, review the entire claims folder and express an opinion, including the degree of probability, regarding the following questions: (a) was the medical care provided by the VA in 1983 properly administered with regard to the detection, diagnosing, and treatment of appellant's malignant tumor of the right leg, (b) should VA medical personnel have detected the tumor earlier, (c) was there an unreasonable delay by VA in the detection of the tumor and the August 1983 surgical amputation of that extremity performed at NIH, (d) in the event the medical care provided by the VA in 1983 was improperly administered, did the above-the-knee amputation of the appellant's right leg result from VA's medical treatment or lack of medical treatment versus the continuance or natural progress of the preexisting malignancy of that leg, and (e) did any treatment by the VA affect the natural progress of the malignancy, and, if so, in what manner? 6. Additionally, the physician or physicians, after review of the entire claims folder, should express an opinion, including the degree of probability, regarding these further questions: (a) was the medical treatment provided by the VA in April 1984 properly administered involving the open biopsy procedure of the right distal femur, (b) was the fracture of the right distal femur noted in the April 1984 biopsy operative report the result of VA treatment (including whether the femur fracture was due to a physician's dropping of a scalpel blade into the area being biopsied and/or removal of biopsied bone from the femur) versus other causes (including weakness or demineralization of that femur bone due to the above-the-knee amputation of the right leg performed at NIH, a non-VA medical facility, or due to continuance or natural progress of the preexisting malignancy, e.g., pathologic fracture), and (c) did additional disability result, and if so, what additional disability from the right distal femur fracture is manifested. 7. If the evidentiary record is inadequate to ascertain the condition of the femur fracture site, in order to express an opinion as to whether that femur fracture resulted in additional disability, then the RO should schedule appellant for an appropriate examination to determine the current nature and severity of the fracture; and the examiner should opine whether the femur fracture results in any additional disability, and, if so, describe what that is. 8. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by these physicians. The examinations should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 9. The RO should adjudicate the appellant's claim under the applicable regulations currently in effect. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).