Citation Nr: 0809899	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  04-01 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, 
New York


THE ISSUE

Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for 
additional disability as a result of VA treatment for the 
purposes of accrued benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant and son




ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel


INTRODUCTION

The veteran served on active military duty from February 1941 
to December 1942.  He died in February 1996.  The claimant is 
his widow.

The appeal initially came before the Board of Veterans' 
Appeals (Board) from a rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in New York, New 
York.  The Board remanded this issue in May 2006.  The claim 
has been returned to the Board.

This case has been advanced on the Board's docket pursuant to 
the provisions of 38 C.F.R. § 20.900.


FINDINGS OF FACT

1.  A claim for compensation benefits under the provisions 38 
U.S.C.A. § 1151, was pending at the time of the veteran's 
death in February 1996.

2.  There was no evidence on file at the time of his death 
that the veteran sustained additional disability as a result 
of any or all of the falls the veteran sustained while in VA 
care.




CONCLUSION OF LAW

The criteria for entitlement to compensation pursuant to 38 
U.S.C.A. § 1151 for additional disability as a result of VA 
treatment for the purposes of accrued benefits have not been 
met.  38 U.S.C.A. § 1151 (West 1991); 38 U.S.C.A. §§ 5107, 
5121 (West 2002); 38 C.F.R. §§ 3.358 (1993), 3.1000(a) 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION
I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's 
duty to assist the veteran in the development of a claim.  VA 
regulations for the implementation of the VCAA were codified 
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 
3.326(a).

The notice requirements of the VCAA require VA to notify the 
claimant of any evidence that is necessary to substantiate 
the claim, as well as the evidence VA will attempt to obtain 
and which evidence she is responsible for providing.  
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The 
requirements apply to all five elements of a service 
connection claim: veteran status, existence of a disability, 
a connection between the veteran's service and the 
disability, degree of disability, and effective date of the 
disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).  Such notice must be provided to a claimant before 
the initial unfavorable decision on a claim for VA benefits 
by the agency of original jurisdiction (in this case, the 
RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  However, the VCAA notice requirements may be 
satisfied if any errors in the timing or content of such 
notice are not prejudicial to the claimant.  Id.

Initially, the Board notes that the appellant's claim for 
benefits pursuant to 38 U.S.C.A. § 1151 for accrued purposes 
was filed prior to the passage of the VCAA.  The United 
States Court of Appeals for Veterans Claims (Court) 
acknowledged in Pelegrini that where, as here, the § 5103(a) 
notice was not mandated at the time of the initial decision, 
the agency of original jurisdiction did not err in not 
providing such notice.  Rather, the appellant has the right 
to a content complying notice and proper subsequent VA 
process.  Pelegrini, 18 Vet. App. at 120.  

VA sent the appellant a notice in May 2006, following Board 
remand.  This notice informed her of the evidence necessary 
to substantiate a claim for benefits under the provisions of 
38 U.S.C.A. § 1151, what information and evidence must be 
submitted by the claimant, what information and evidence will 
be obtained by VA, and the need for the appellant to advise 
VA of and to submit any further evidence that was relevant to 
the claim.  This notice also informed her how disability 
evaluations and effective dates are assigned and the type 
evidence which impacts those determinations.  The appellant's 
claim was subsequently readjudicated in an October 2007 
supplemental statement of the case.  This meets the 
requirements of Pelegrini.  See id.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  One of the unique 
circumstances in an accrued benefits claim is the fact that 
only evidence contained in the claims file at the time of the 
veteran's death will be considered when reviewing a claim for 
accrued benefits.  This includes service department and VA 
medical records, which are considered to be constructively in 
the claims file at the date of death, even though they may 
not physically be in the file until after that date.  Hayes 
v. Brown, 4 Vet. App. 353, 360-61 (1993); see also VAOPGCPREC 
6-93 and 12-94, and Conary v. Derwinski, 3 Vet. App. 109 
(1992) (regarding consideration of certain financial 
information).  

At the time of the veteran's death, there were some private 
medical records in the claims file, VA treatment records, and 
the veteran's contentions.  Following the veteran's death, VA 
attempted to get additional VA treatment records, some of 
which were obtained.  There are private medical records that 
the Board would deem as being relevant to the issue on 
appeal; however, it is bound by the applicable statutes and 
regulations pertaining to VA and Court precedent, which would 
not allow the Board to obtain that evidence.  See 38 U.S.C.A. 
§ 5121; 38 C.F.R. § 3.1000(d)(4) (2007).  Specifically, a 
January 14, 1993, letter from a private physician indicates 
that the veteran was hospitalized at LaGuardia Hospital for 
status post cerebral hemorrhage.  (This letter was submitted 
for the purpose of establishing that the veteran was not 
competent to manage his financial affairs, which the 
physician stated was "probably permanent.")  This is prior 
to the injuries the appellant claims caused the additional 
disability.  These records would show the veteran's physical 
condition prior to any of the falls in question; however, 
again, VA cannot now obtain those records.  See id.  They do 
not meet the requirement of being in constructive possession 
of VA at the time of the veteran's death.  VA also cannot 
obtain a medical opinion in connection with this claim or 
consider the medical opinion the appellant submitted in 
December 1998 that addressed a possible additional disability 
for the very same reason-such evidence not in the claims 
file at the time of the veteran's death.  

There are some VA records that VA was unable to obtain.  For 
example, treatment records from the VA Extended Care Center 
in St. Albans, New York, from January 1993 to August 1993 
(the appellant alleges the veteran sustained injuries in 
February 1993 and August 1993).  The St. Albans facility has 
stated that it does not have records from that time period 
(of record are treatment records from September 1993 through 
1995).  There is, however, a computerized report showing that 
the veteran underwent a chest x-ray in February 1993 and 
March 1993, a CT scan of the head in March 1993, an ankle x-
ray in May 1993, and a hip x-ray in August 1993.  Thus, there 
is evidence that the veteran was treated by VA earlier than 
September 1993.  Nevertheless, the Board accepts that the St. 
Albans care center cannot locate the treatment records for 
the period between January 1993 and August 1993, as such 
request has been made on several occasions, and the response 
was that there were no records during that time period.  See 
38 C.F.R. § 3.159(c)(2) (2007).  VA has properly informed the 
appellant of the inability to obtain these records.  The 
appellant was provided with a hearing before the RO in August 
2000.  

The record does not otherwise indicate any additional 
existing evidence that is necessary for a fair adjudication 
of the claim that has not been obtained.  Hence, no further 
notice or assistance to the appellant is required to fulfill 
VA's duty to assist the appellant in the development of the 
claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. 
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).

II.  Analysis

In November 1993, the veteran submitted a claim for 
compensation pursuant to 38 U.S.C.A. § 1151 for alleged 
injuries sustained at a VA facility in February 1993, August 
1993, January 1994, and March 1994.  He subsequently added an 
injury in July 1994.  This claim was not adjudicated before 
the veteran's death in February 1996.  It is before the Board 
as the appellant's claim for accrued benefits.

Accrued benefits are benefits to which a veteran was entitled 
at his death, based on evidence on file at the date of death, 
and due and unpaid for a period not to exceed two years prior 
to the last date of entitlement, and which will be paid to 
survivors as provided by law.  38 U.S.C.A. § 5121 (West 
2002); 38 C.F.R. § 3.1000 (2007).  See Pub. Law No. 108-183, 
§ 104, 117 Stat. 2651 (Dec. 16, 2003) (amending 38 U.S.C.A. § 
5121(a) to repeal the two-year limit on accrued benefits for 
deaths occurring on or after the date of enactment).  The 
substance of the survivor's claim is purely derivative from 
any benefit to which the veteran might have been entitled at 
his death; that is, the survivor cannot receive any such 
attributed benefit that the veteran could not have received 
upon proper application therefor.  Zevalkink v. Brown, 6 Vet. 
App. 483, 489-90 (1994).

Pursuant to 38 U.S.C.A. § 1151, disability benefits may be 
payable to a veteran for non-service connected disability in 
limited circumstances and in the same manner as if the 
disability was service connected.  38 U.S.C.A. § 1151 (West 
1991).

First, the veteran must incur an injury or aggravate an 
injury as the result of hospitalization, medical or surgical 
treatment, submission to a VA examination, or the pursuit of 
a course of vocational rehabilitation.  38 U.S.C.A. § 1151; 
38 C.F.R. § 3.358(a).  In cases of medical care, proof of 
actual causation between the treatment and the injury is 
required; the injury may not be merely coincidental 
therewith.  38 C.F.R. § 3.358(c)(1).  The provisions of § 
1151 contain no requirement of fault on the part of the 
service providers to confer entitlement on the injured 
veteran.  See Brown v. Gardner, 513 U.S. 115 (1994), aff'g 5 
F.3d 1456 (Fed. Cir. 1993), aff'g Gardner v. Derwinski, 1 
Vet. App. 584 (1991).

The Board acknowledges that changes to the applicable law and 
regulations impose a fault or negligence standard on the 
cause of the additional disability.  See 38 U.S.C.A. § 1151 
(West 2002), as amended by Pub. L. No. 104-204, 110 Stat. 
2926 (effective for claims filed on or after October 1, 1997, 
the statute requires negligence as the proximate cause of the 
death or additional disability); 69 Fed. Reg. 46,426 (Aug. 3, 
2004) (amending 38 C.F.R. § 3.358 and adding 38 C.F.R. 
§ 3.361 to implement the changes to 38 U.S.C.A. § 1151, 
effective Sept. 2, 2004).  However, because both the 
veteran's and the appellant's claims were received prior to 
the effective dates of those changes, the new standard does 
not apply.

Second, the injury or aggravation cannot be the result of the 
veteran's own willful misconduct.  38 U.S.C.A. § 1151; 38 
C.F.R. § 3.358(c)(4).

Finally, such injury or aggravation must result in additional 
disability.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(b).  The 
presence of additional injury is determined by comparing the 
state of the veteran's physical condition immediately 
preceding the injury with the subsequent physical condition 
resulting from the injury.  38 C.F.R. § 3.358(b)(1).  
Compensation will be not payable under 38 U.S.C.A. § 1151 for 
the continuance or natural progress of disease or injuries 
for which the training, or hospitalization, etc., was 
authorized.  38 C.F.R. § 3.358(b)(2).

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination, 
the benefit of the doubt is afforded the claimant.  38 
U.S.C.A. § 5107(b).

In the November 1993 claim for benefits (which was filed by 
the veteran through his wife), the appellant stated that the 
veteran had fallen two times while a patient at the VA 
Extended Care Center.  She stated that because of the falls, 
the veteran had been taken to Bellevue Hospital for surgery 
and was back at St. Albans and could no longer walk and was 
on a feeding tube.  She claimed the injuries almost caused 
his death.  Later on, it was clarified that the falls 
reportedly occurred in February 1993, August 1993, January 
1994, March 1994, and July 1994.  

At the August 2000 RO hearing, the appellant testified that 
the veteran had been admitted to St. Albans because he had 
had a stroke and was going to undergo rehabilitation.  She 
stated the stroke occurred in December 1992, and the veteran 
had been hospitalized for approximately one month before 
being transferred to VA.  The appellant testified the veteran 
had left side weakness after the stroke.  She stated the 
veteran fell approximately one week after being admitted to 
St. Albans.  The appellant stated she had spoken to the 
nurse's supervisor, who confirmed the veteran had fallen and 
was subsequently examined by a doctor.  The veteran's son 
indicated that the veteran was unable to communicate with 
them because he was on a feeding tube.  The appellant stated 
the veteran fell again in August 1993 and had bruises on his 
body and face.  She was told that an "incident report" 
would be written.  The appellant reported that the veteran 
had to go to Belleview Hospital because he was suffering from 
a subdural hematoma "due to falls in St. Albans."  See 
Transcript at page 8.  She noted that they did not indicate 
the nexus in writing.  The appellant stated the veteran was 
receiving physical therapy for the subdural hematomas at the 
time he fell.  She stated the veteran had to be transferred 
to a private facility in November 1993 because of a blood 
clot and because he had not been cared for properly.  The 
appellant reported that the third injury occurred in January 
1994.  The veteran had fallen off of a chair and the chair 
had fallen on top of him.  The appellant brought pictures to 
the hearing that were taken after a March 1994 fall.  She 
testified the veteran had to undergo a surgical procedure for 
placing a feeding tube in the veteran due to the shrinkage of 
his stomach.  

The appellant has alleged that because of the injuries the 
veteran sustained while in VA care, he was put on a feeding 
tube and never walked again.  She states that the veteran 
became 100 percent disabled as a result of these falls, 
particularly the ones that occurred in January and March of 
1993.

The Board has carefully reviewed the evidence of record at 
the time of the veteran's death in February 1996 and finds 
that the preponderance of the evidence is against the 
appellant's claim for residuals of injuries due to VA 
treatment for purposes of accrued benefits.  Initially, it 
must be noted that the Board is at a disadvantage because it 
does not have clinical findings of the veteran's physical 
condition prior to his admittance to the VA facility in St. 
Albans.  There is evidence that in January 1993, the veteran 
was hospitalized following a cerebral hemorrhage and was 
determined at that time not to be able to manage his 
financial affairs.  There are multiple VA treatment records 
dated from September 1993 to February 1996.  The veteran had 
been diagnosed with dementia (which was noted in the January 
1993 letter from the veteran's treating physician) and was 
often uncommunicative, even before a feeding tube was placed 
in his mouth.  There is evidence that the veteran had fallen 
while at the St. Albans facility on several occasions and 
around the time the appellant alleges.  However, the Board 
cannot find evidence in the treatment records or in the 
record of the veteran incurring additional disability as a 
result of any of these falls.  See 38 U.S.C.A. § 1151; 38 
C.F.R. § 3.358(b).  Significantly, none of the medical 
records showing treatment attribute treatment to any falls.

The appellant claims that the diagnosis of subdural hematoma 
(diagnosed in August or September 1993) was a result of the 
fall the veteran had in either January 1993 or March 1993 or 
a combination of both, but there is no competent evidence to 
substantiate that allegation.  A March 1993 CT scan of the 
head showed evidence of cerebral and cerebellar atrophy.  It 
also showed an "old infarct" in the insula of the right 
temporal lobe, which would not seem to indicate that this was 
incurred from a recent fall.  Nevertheless, no medical 
professional has stated that the veteran incurred additional 
disability from any fall he had while in VA care.  A 
September 1993 private medical record shows the veteran was 
hospitalized following a diagnosis of chronic subdural 
hematoma, but there is no indication of what caused the 
hematoma.  The Board will not conclude that it was caused by 
the falls in January and August of 1993 without more evidence 
showing such a causal connection.  

The appellant has stated that a private physician has 
concluded that the falls in February 1993 and August 1993 
caused the subdural hematomas.  As noted above, the December 
1998 medical opinion was provided after the veteran had died 
and cannot be used in this current claim for accrued 
benefits.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(d)(4).  
Again, only evidence that was of record (or in constructive 
possession by VA) may be used in a claim for accrued 
benefits.  At the time of the veteran's death in February 
1996, no medical professional had provided an opinion 
regarding any additional disability incurred from falls the 
veteran sustained while in VA care.  As stated previously, 
the Board cannot find evidence from the treatment records in 
the claims file, dated from 1993 to 1996, that the veteran 
incurred additional disability from the falls he had while in 
VA care.

For the reasons stated above, the Board finds that the 
preponderance of the evidence is against awarding 
compensation pursuant to 38 U.S.C.A. § 1151 for additional 
disability as a result of VA treatment for purposes of 
accrued benefits.  The benefit-of-the-doubt rule is not for 
application.  See 38 U.S.C.A. § 5107(b).  

ORDER

Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for 
additional disability as a result of VA treatment for the 
purposes of accrued benefits is denied.


_______________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs