Citation Nr: 0306484 Decision Date: 04/03/03 Archive Date: 04/10/03 DOCKET NO. 95-36 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for right shoulder rotator cuff tear and residuals of a right hip fracture. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESSES AT HEARINGS ON APPEAL Appellant and D. B. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from November 1942 to February 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island (RO), which denied the benefit sought on appeal. During the March 1998 hearing before the undersigned member of the Board the veteran raised the issue of service connection for a psychiatric disorder, to include post- traumatic stress disorder. The records shows that service connection is in effect for a conversion disorder, currently rated as 30 percent disabling. In a December 1999 statement the veteran raised the issues of entitlement to service connection for a bladder disorder and entitlement to a total rating based on individual unemployability due to service- connected disabilities. These issues have not been adjudicated by the RO and are referred to the RO for appropriate actions. FINDINGS OF FACT 1. The veteran was hospitalized at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995. 2. Additional disability of right shoulder resulted from the veteran's hospitalization at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995. 3. The evidence does not establish that additional disability of the right hip resulted from hospitalization at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a right shoulder disability have been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (in effect prior to October 1997). 2. The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C.A § 1151 for a right hip disability have not been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (in effect prior to October 1997) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29,2001.66 Fed. Reg. 45,620-32 (Aug.29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). In this regard the veteran was notified of the requirements necessary to establish his claim in the statement of the case and supplemental statements of the case. In a November 2001 letter to the veteran and in the November 2002, the veteran was notified of VCAA provisions, and of VA's duty to assist the veteran by obtaining evidence from various sources and to obtain a medical opinion if an examination or opinion is necessary. The RO also notified the veteran of his responsibility to help the RO obtain all evidence necessary to support the claim by informing the RO of relevant medical records not already obtained. The record shows that all pertinent evidence has been obtained regarding the claim under review here. The Board finds that the VA has satisfied provisions of the VCAA. Quartuccio v. Princippi, 16 Vet. App. 183 (2002). Factual Background The evidence shows that the appellant received intermittent treatment for various disorders at VA facilities in the 1980s and 1990s. The veteran was hospitalized at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995 for psychiatric complaints. These records show that he was started on Trazodone and Buspar. Progress notes show that on February 23, 1995 the veteran reported he had been unable to make a fist with his right hand since he hurt his shoulder. On February 24, 1995 the veteran complained of right shoulder and right hip pain. That record noted that the veteran allegedly fell four days before with no witnesses. He was examined at that time and was found to have no bruises and a full range of motion. There was right shoulder pain of the posterior aspect of the shoulder. The right hip trochanter area had no bruising and was slightly tender. The assessment was right shoulder capsulitis and right hip trochanteric bursitis. On the date of discharge in March 1995, the veteran reported complaints of pain in the right shoulder and hip after an apparent fall on the ward. The note stated that on examination there was tenderness of the right supraspinatus tendon, full range of motion of the shoulder and no subluxation, right hip tender trochanteric bursitis. The note contains a diagnostic impression of tendonitis and bursitis. The plan was to treat with Motrin for pain. The report of the February 13 to March 1, 1995 VA hospitalization summarizes the hospital course and treatment and contains discharge diagnoses referable to psychiatric disorder and of a left shoulder disorder. This report contains no reference to an injury during that hospitalization or complaints or findings referable to the right hip or right shoulder. Private medical records show that the veteran was seen in the emergency department of St. Luke's Hospital on March 3, 1995, two days after discharge from the above discussed VA hospitalization. The initial assessment contains a chief complaint that the veteran fell on Valentines Day, February 14, 1995, and was injured with pain of the right hip and shoulder. He was able to walk. The veteran underwent X-ray examination to rule out fracture or dislocation of the right shoulder and/or right hip. The X-ray report shows findings that there was no fracture or dislocation of the right shoulder or of the pelvis and right hip. Private treatment records show that in October 1995 the veteran was seen for a number of problems that resulted from a fall. At that time the veteran reported that he had been told that at one time he had a greater trochanter fracture and had had right shoulder pain. During the October 1995 visit, the veteran's right hip examination was normal and films showed a congenital variation of the hip joint with a slightly decreased neck shaft angle and good preservation of the joint space; and a separate ossicle in the top of the greater trochanter that the physician supposed could represent an earlier injury, but in short, the hip examination was normal. The right shoulder showed some scapula winging. The veteran had pain with abduction external rotation, supraspinatus weakness, modest degenerative joint disease and a humeral head superior migration by film suggested rotator cuff tear. The veteran underwent repair of supraspinatus rotator cuff tear in December 1995. A private surgical pathology report in December 1995 contains diagnoses of (1) fibrocartilage with fragmentation consistent with clinical history of rotator cuff tear, and (2) bone and fatty bone marrow and fragments of soft tissue and synovium. A June 1996 report of contact between the RO and the veteran shows that the veteran reported that the day after entering the Brockton, Massachusetts VA Medical Center in February 1995, he fell out of a wheelchair while leaning over and was injured. He said that he told the attendant that he was OK because he did not want to make a big deal of it. He stated that the next day when he woke he could not move, and that on examination he was found to have a bruise on his right arm, shoulder and hip. He stated that he went to St. Luke's Hospital the day after release for X-ray examination which revealed a cracked hip due to the fall. He brought the X- rays with him to Washington DC and gave them to a Liaison Officer at the VA and the X-rays were then lost. During a March 1998 Board hearing before the undersigned member of the Board, the veteran testified that during hospitalization at a VA facility from February 13 to March 1, 1995, he went to visit a doctor in a wheelchair to show him something and tripped over him landing upside down injuring his right shoulder and hip. He stated that had become drowsy and disoriented due to medications. He further testified that at that time a very heavyset nurse and a gentleman offered him a small pill and asked him how he was. Later at 2 A.M. he begged for Tylenol to a nurse named Steven, who gave him three. He testified that the day after discharge from the hospital he went to St. Luke's and the X-ray revealed, and later testing found, that he had damage to his right shoulder, a torn rotator cuff. During a September 1999 VA examination for joints, the veteran presented with complaints that he hurt his right hip and right shoulder in 1995 in a fall at the Brockton VA Clinic, and subsequently received no treatment for the hip but received Cortisone for the shoulder. The hip and shoulder gradually got worse. He was later operated on for the right shoulder, and since then he had had increased pain in the shoulder and neck. The report noted that X-ray examination of the right hip showed degenerative change that was very marked, and that X-ray examination of the right shoulder showed some acromioclavicular degenerative changes. After examination the diagnoses were right hip degenerative change, and right shoulder acromioclavicular degenerative changes, status post impingement surgery. The report of a March 2001 VA examination of the joints shows that the veteran said that while at the Brockton Hospital, he had fallen over a wheelchair and was injured and hurt his right shoulder and right hip. On examination, the examiner found that the range of motion of the hip was normal and the veteran did not display any pain and did not complain of pain during the range of motion testing. Later in the examination the veteran said that maybe it did hurt a little bit. The examiner noted that during the examination the veteran needed to retrieve a portfolio he had left in the cafeteria. The examiner noted that the veteran then excused himself and ran down the corridor with no limping and no hesitancies and no antalgia, and made a sharp turn without difficulty. X-ray examination showed a mild degenerative joint disease on the left and moderate degenerative joint disease on the right. The examiner noted his review of the claims file. The examiner also noted the veteran's diagnosis of conversion reaction and wondered if this diagnosis had to do with the report of a hip problem. In this regard the examiner opined that it was clear to him that the veteran's "condition" did not interfere with the veteran's activities of daily living or ability to earn a living, or interfere in any way with any other work the veteran might do that could conceivably be required of a 77-year-old man. The examiner opined that he saw no disability, and that it was true the veteran had mild degenerative joint disease in one hip and moderate on the other but the degree was no more or even less than one would expect to find in a 77-year-old man. The report contains a diagnosis of mild degenerative joint disease left to moderate degenerative joint disease right which do not explain his complaints. During a September 2002 hearing at the RO the veteran testified regarding his injury during VA hospitalization, and subsequent treatment. He stated that his wife brought him a gift at the hospital and when he went to show the doctor he fell over the wheelchair. Testimony was also given by D. B. Analysis When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.358 (2002). 38 U.S.C.A. § 1151 has been amended, and the amended statute indicates that a showing of negligence or fault is necessary for entitlement to compensation for claims filed on or after October 1, 1997. However, for claims filed prior to October 1, 1997, as here, a claimant is not required to show fault or negligence in medical treatment. See generally Brown v. Gardner, 513 U.S. 115 (1994); see also Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2) (in effect prior to October 1997). Several conditions govern the determination of whether any additional disability resulted from VA hospitalization or treatment. First, it is necessary for the veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, an examination, or medical or surgical treatment. Second, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or treatment administered. 38 C.F.R. § 3.358(c)(3) (in effect prior to October 1997). The appellant is seeking compensation benefits under 38 U.S.C. § 1151 for residuals of a right hip fracture and right shoulder rotator cuff tear. The veteran asserts that during hospitalization in February and March 1995, he tripped over a wheel chair and fell and injured himself, resulting in the claimed right hip and right shoulder disorders. To summarize, the Board has given consideration to the appellant's evidentiary assertions. Where the issue is factual in nature, that is, whether an incident occurred during service or whether a clinical symptom is present, the appellant and other lay parties are competent to make assertions in that regard. Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, the appellant is not qualified to make assertions in this area as he lacks the necessary medical expertise or experience. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The first aspect of the claim to be determined is whether the veteran did sustain an injury while hospitalized at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995. In this regard, progress notes show that during this hospitalization the veteran twice reported complaints which he attributed to a fall. Additionally, when seen at a private facility in March 1995 soon after that hospitalization he continued to complain of pain in the right shoulder and right hip, which the veteran linked to a fall in February 1995 at the VA facility. As such, the Board is satisfied that the veteran did sustain a fall while hospitalized at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995. The next aspect of the claim to be determined is whether the fall occurred during VA hospitalization. In Sweitzer v. Brown, 5 Vet. App. 503 (1993), the United States Court of Appeals for Veterans Claims (Court) affirmed the Board's decision denying § 1151 benefits for a veteran who had claimed that while he was waiting for a VA examination, an unidentified patient in a motorized wheelchair, struck the claimant in the lower torso, and knocked him to the ground. The Court in Sweitzer held that § 1151 contemplated recovery only for disability resulting from the examination itself, and not also for disability sustained while waiting for an examination. However, a later VA Office of General Counsel Precedent Opinion, VAOPGCPREC 7-97 stated that if the circumstances or conditions of hospitalization gave rise to the risks out of which the injury arose, the injury may be considered to have resulted from the hospitalization. The Opinion further stated that in making this determination, it is necessary to identify, to the extent possible, the specific cause of the incident causing the injury, and to determine whether that cause is attributable to the circumstances or conditions of the hospitalization. The Opinion states that if the hospitalization created a "zone of danger" out of which the injury arose, there would be a basis for concluding that the hospitalization caused the injury. The Opinion further notes that a fall which is caused by the claimant's own inadvertence would not be considered to have resulted from hospitalization. However, where the precipitating cause of the fall may be reasonably attributed to conditions or circumstances of the hospitalization, rather than some circumstance originating with the claimant, the resulting injuries would be said to be the result of hospitalization, rather than the result of some circumstance originating with the claimant. In this case the veteran indicated that he was showing a gift to a doctor who was in a wheel chair and fell over wheelchair and injured his right shoulder and hip. Additionally, during his hearing before the Board he stated that he was disoriented due to the medications he was taking. In this regard the VA hospital records show that on admission the veteran was started on Trazodone and Buspar. Adverse effects of the Trazodone include blurred vision, dizziness, and drowsiness. Adverse effects of the Buspar include blurred vision and dizziness. Physicians Desk Reference (PDR Electronic Library version). These adverse effects are not inconsistent with the circumstances surrounding the veteran's fall as related during his hearing. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the Board finds that the evidence is in equipoise as to whether the fall occurred during hospitalization. As such the benefit of the doubt is in the veteran's favor. The final aspect of the claim to be determined is whether the fall resulted in chronic additional disability. In this regard, there is no indication that the veteran was experiencing significant problems with his right shoulder prior to the hospitalization. He was seen on two occasions for right shoulder complaints related to the injury while hospitalized, diagnosed as capsulitis and tendonitis. Additionally, his complaints persisted and he began receiving treatment at private facilities for right shoulder complaints in March 1995 shortly after his left the VA hospital. Eventually, in December 1995 he underwent surgery at a private facility for fibrocartilage with fragmentation consistent with clinical history of rotator cuff tear. The Board finds that the medical evidence shows continuity of right shoulder symptoms following the inservice injury resulting in chronic additional disability. Accordingly, it is the judgment of the Board that compensation benefits for a right shoulder disorder pursuant to 38 U.S.C.A. § 1151 is warranted. Concerning the right hip, there is no indication that the veteran was experiencing significant problems with his right hip prior to the hospitalization. He was seen on two occasions during his hospitalization at VAMC for right hip complaints related to the injury, diagnosed as bursitis. He was seen in March 1995 soon after that hospitalization at a private facility with continued complaints of pain in the right hip. The diagnosis was trochanteric fracture. However, x-rays of the right hip in March 1995 showed no fracture. Additionally, the subsequent private medical records deal primarily with treatment for the right shoulder disorder. The private treatment provider in October 1995 noted that the right hip examination was normal and films showed a congenital variation of the hip joint with a slightly decreased neck shaft angle and good preservation of the joint space; and a separate ossicle in the top of the greater trochanter that the physician supposed could represent an earlier injury, but in short, the hip examination was normal. Subsequent VA x-rays showed degenerative joint disease of the right hip. However, the VA examiner in March 2001 rendered an opinion regarding the right hip indicating that he saw no disability, and that while it was true that the veteran had mild degenerative joint disease in the left hip and moderate in the right hip, the degree was no more or even less than one would expect to find in a 77-year-old man. The examiner's opinion is not contradicted by the current medical evidence. Accordingly, it is the judgment of the Board the injury to the right hip during the hospitalization at the Brockton, Massachusetts VA Medical Center from February 13 to March 1, 1995 did not result in any chronic additional disability. The Board finds that the preponderance of the evidence is against the veteran's claim and compensation benefits for a right hip disorder pursuant to 38 U.S.C.A. § 1151 are not warranted. ORDER The claim of entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a right shoulder disability is granted. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a right hip disability is denied. ____________________________________________ ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.