Citation Nr: 1013583 Decision Date: 04/09/10 Archive Date: 04/29/10 DOCKET NO. 08-34 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a fall, to include a right hip disability, right ankle disability, and depression. REPRESENTATION Appellant represented by: Maine Veterans' Services ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. FINDING OF FACT The Veteran did not incur an additional disability as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of a fall, to include a right hip disability, right ankle disability, and depression, as a result of VA medical treatment are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.310(a), 3.361 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking compensation under 38 U.S.C. § 1151 for residuals of a fall, including a right hip disability, right ankle disability, and depression. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, as the Board concludes below that the preponderance is against the Veteran's compensation claim, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot. Therefore, despite any inadequate notice provided to the Veteran on these two elements, the Board finds no prejudice to the Veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran was provided VCAA notice by letter mailed in March 2007, prior to the initial adjudication of his claim. The Board also notes that service treatment records have been obtained, as well as pertinent VA medical records, and lay statements from the Veteran's wife and VA van driver. Moreover, a VA examiner reviewed the record and provided an opinion in connection with the Veteran's claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Compensation under 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. See 38 C.F.R. § 3.361. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis A September 2001 VA X-ray report indicates that the Veteran gave a history of right foot pain due to an injury 10 days before. The report indicated no acute fracture, but erosive arthritic changes of the second digit distal interphalangeal joint, compatible with a given history of psoriatic arthritis, and possibly other erosive arthropathies such as gout. VA treatment records from February 2004 to April 2006 indicate treatment for numerous complaints of pain, including right ankle and foot pain due to trauma, which were noted in the record originally to have been the result of an injury in 2004, when he slipped in the shower. A May 2004 VA X-ray report indicates that the Veteran gave a two day history of right ankle pain, which resulted from twisting while stepping on a a water drain, and the Veteran was noted to have had a negative X-ray study. A November 2004 X-ray study of the right foot indicates destructive arthropathic change with suspected new involvement at the fourth digit proximal interphalangeal joint. A December 2004 VA X-ray of the right hip for complaints of right hip pain indicated a moderate- sized spur projecting from the left femoral neck, and mild degenerative changes to the right hip. A February 2005 VA bone scan of the right foot for chronic right foot pain and possible Lisfranc injury indicted increased flow and soft tissue activity in the mid right foot, and increased osseous uptake in the right foot including trauma, inflammation, and degenerative involvement. In February 2006, the Veteran underwent a first metatarsocuneiform joint (MCJ) fusion for a chronic Lisfranc injury of the right forefoot. A March 2006 VA X-ray of the right foot indicates post-operative change and destructive arthropathy. May 25, 2006 VA treatment records indicate that the Veteran reported falling while exiting a VA shuttle that morning and that he complained of moderately severe right hip pain. The Veteran reported that he stepped out of the shuttle and did not realize how close the van was to the curb. He reported that he caught his right foot partly on the curb and landed on the side of his right hip. He also reported having pain on the outer edge of the right foot and the bottom of the foot. It was noted that right hip pain was his main complaint. The Veteran was assessed as having right hip pain and right ankle pain. An X-ray of the right hip taken on May 25, 2006 indicated a mild deformity at the tip of the greater trochanter, that the possibility of fracture was not totally excluded, that the hip joint space was well-maintained, and that the osseous and soft tissue structures appeared otherwise similar to the previous study. The X-ray report also indicates that, although possibly projectional, the possibility of fracture of the tip of the greater trochanter was not excluded. However, a May 25, 2006 VA treatment note indicates that X-rays of the right hip and ankle were negative for fracture. A statement dated in February 2007 from the Veteran's wife indicates that, at the time that the Veteran fell on May 25, 2006, the VA van had not pulled up to the front door because it had been newly topped and a crosswalk was in front of the doors. The Veteran's wife stated that because of this they parked away from where they usually got out, and that while her husband was trying to exit the van onto the sidewalk he caught the curb, lost his balance, and fell on his right hip. His wife furthermore stated that neither she nor the driver could reach the Veteran in time. A statement received in May 2007 from the driver of the van indicates that the driver was helping an elderly gentleman out of the car when he heard a small commotion behind him and saw that the Veteran was on the sidewalk with his wife trying to help him. The driver then assisted the Veteran into a wheelchair. The driver stated that the Veteran fell due to a curb being beside the van door he exited, and that the curb was there because there was no flat area for the Veteran to step onto because other vehicles were unloading patients in the same area. VA treatment records from May 2006 to October 2007 indicate continued treatment for the Veteran's right foot. On June 1, 2006, the Veteran underwent an excision of a screw in his right foot. June and July 2006 VA treatments records indicate that the Veteran had a long term ilioinguinal neuropathic right foot pain, which the Veteran reported had been exacerbated by his May 25, 2006 fall. In January 2007, the Veteran reported that his foot and hip had not been the same since his fall, and it was noted that the Veteran had recently had an operation on his right foot, which appeared to have been extensive. In August 2007, it was noted that the Veteran had slipped getting out of the bath tub and injured his ankle acutely, and that he complained of worsening bilateral hip pain and right ankle pain and instability. In November 2007, a VA physician reviewed the record, and determined that it was unlikely that the Veteran's claimed injuries of the right hip and right ankle and depression were due to the fall at the VA Medical Center on May 25, 2006, where the Veteran caught his foot on the curb and lost his balance while trying to get onto the sidewalk from the shuttle van. The examiner opined that there were no disabilities secondary to the fall that were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. The examiner noted that the medical records revealed a long history of myofascial pain involving the upper and lower trunk, and that a pain clinic note, dated May 31, 2006, indicated that that the soft tissue injury sustained by the Veteran a few days before seemed to have caused a recurrence of his right ilioinguinal myofascial pain. The examiner also noted that there was a long history of chronic pain in the right foot area due to retained hardware, which had been removed, and that there was no description of focal trauma to the right hip, right ankle, or subsequent depression due to the fall. The examiner furthermore noted that and the X-rays taken at the time of the fall revealed no fractures. The examiner opined that the Veteran's fall did not substantially or materially aggravate his pre-existing conditions. After reviewing the record, the Board finds a preponderance of the evidence to be against the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a fall. The competent medical evidence indicates that the Veteran did not incur any additional disability as the result of his fall on May 25, 2006. The only competent medical opinion of record is that of the November 2007 VA physician, who reviewed the record and opined that there were no disabilities secondary to the fall that were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an even not reasonably foreseeable. While noting that the May 31, 2006 pain clinic note indicated that that the soft tissue injury sustained by the Veteran a few days before seemed to have caused recurrence of his right ilioinguinal myofascial pain, the examiner noted that there was a long history of chronic pain in the right foot area due to retained hardware, and that there was no description of focal trauma to the right hip or ankle, and that X-rays revealed no fractures. The examiner opined that the fall did not substantially or materially aggravate pre-existing conditions. The November 2007 examiner's reasoning is supported by the Veteran's long history of treatment for the right hip, ankle and foot, both before and after his May 25, 2006 injury. The Board notes the Veteran's assertion that his pre-existing ankle and hip problems were exacerbated by his May 25, 2006 fall. However, the VA examiner recognized that such conditions were acutely exacerbated by the fall, as described in a May 31, 2006 treatment note, but opined, based on the record, that the fall did not substantially or materially aggravate any pre-existing conditions. There is no contradictory medical opinion indicating that the Veteran incurred additional disability as a result of his fall on May 25, 2006. Furthermore, even assuming that the Veteran incurred any additional right ankle or hip disability from his May 25, 2006 fall, the record does not reflect, and the Veteran has not identified, any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical care, or that his fall was an event not reasonably foreseeable. Statements by the Veteran, his wife, and the driver of the van on May 25, 2006 are essentially consistent and do not identify or suggest any negligence on the part of VA. While being treated on May 25, 2006, the Veteran reported stepping out of the shuttle, not realizing how close the van was to the curb, and catching his right foot on the curb, causing him to fall. The February 2007 statement from the Veteran's wife indicates that the VA van was unable to pull up to the front door and parked back away from where they usually got out, that the Veteran caught the curb, lost his balance, and fell on his right hip while trying to get out of the van, and that neither she nor the driver could reach the Veteran in time. The van driver's May 2007 statement indicates that the driver was helping an elderly gentleman when the Veteran fell and then assisted the Veteran into a wheelchair, and that the reason the Veteran tripped on the curb was that there was no flat area for him to step onto because other vehicles were unloading patients in the same area. None of these statements identifies any instance of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. Significantly, in order to be entitled to compensation under 38 U.S.C.A. § 1151, the evidence must show that it was VA hospital care, or medical or surgical treatment that resulted in the additional disability. See Jackson v. Nicholson, 433 F.3d 822, 826 (Fed. Cir. 2005) (The term "hospital care" implies the provision of care by the hospital specifically, as opposed to the broader, more general experience of a patient during the course of hospitalization). Because in this case any injuries sustained by the Veteran were merely coincidental to his reporting for VA treatment, he is not entitled to compensation under the provisions of 38 U.S.C.A. § 1151. See id. Finally, the Veteran asserts that his depression is secondary to the alleged ankle and hip injuries sustained as a result of his fall. However, as the Board has determined that the Veteran is not entitled to compensation for those injuries, compensation for depression on a secondary basis is not warranted. As the preponderance of the evidence weighs against the Veteran's claim, it must be denied. ORDER Compensation under 38 U.S.C. § 1151 for residuals of a fall, to include a right hip disability, right ankle disability, and depression, is denied. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs