Citation Nr: 1035532	
Decision Date: 09/20/10    Archive Date: 09/28/10

DOCKET NO.  05-19 864	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South 
Carolina


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for left 
shoulder rotator cuff repair with surgical repair.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the 
United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel

INTRODUCTION

The Veteran served on active duty from September 1971 to 
September 1991.

This matter is before the Board of Veterans' Appeals (Board) on 
appeal from a May 2005 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Columbia, South 
Carolina, which denied the 38 U.S.C.A. § 1151 claim.

The Veteran provided testimony at a hearing before the 
undersigned in July 2006.  A transcript of this hearing has been 
associated with the Veteran's VA claims folder.

In May 2007, the Board remanded this case for further development 
to include obtaining additional records and a VA orthopedic 
examination to address his 38 U.S.C.A. § 1151 claim.  Additional 
records were added to the file, an examination was conducted in 
February 2010, and all other development directed by the May 2007 
remand appears to have been accomplished.  Accordingly, a new 
remand is not required to comply with the holding of Stegall v. 
West, 11 Vet. App. 268 (1998).

The Board notes that, in addition to the aforementioned 
38 U.S.C.A. § 1151 claim, the Veteran had also perfected appeals 
on the issue of entitlement to ratings in excess of 10 percent 
for service-connected disabilities of the right and left knees, 
as well as service connection for posttraumatic stress disorder 
(PTSD) and sleep apnea.  However, the Board denied the knee and 
sleep apnea claims in May 2007, and nothing reflects the Veteran 
appealed that decision to the United States Court of Appeals for 
Veterans Claims (Court).  As such, the Board no longer has 
jurisdiction over those issues.  In regard to the PTSD claim, the 
Board directed further development also be conducted on this 
issue as part of the May 2007 remand.  Service connection was 
subsequently established for PTSD by a March 2010 rating 
decision, and nothing indicates the Veteran has disagreed with 
the initial rating assigned or effective date thereof.  In view 
of the foregoing, this issue has been resolved and is not on 
appeal before the Board.  See generally Grantham v. Brown, 114 
F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 
(Fed. Cir. 1997).

As an additional matter, the Board notes that it referred 
the issue of service connection for a left shoulder 
disorder secondary to the service-connected knee 
disabilities to the RO for appropriate development.  
However, the documents assembled for the Board's review do 
not reflect such development has been conducted.  Further, 
statements from the Veteran submitted while the case was 
on remand reflect he has raised new increased rating 
claims for his service-connected knee disabilities as well 
as his service-connected back disorder, a claim of service 
connection for chronic obstructive pulmonary disease 
(COPD) to include as due to asbestos exposure, and a claim 
of entitlement to special monthly compensation based on 
the need for regular aid and attendance or being 
housebound.  Based upon a review of the record, none of 
these claims appears to have been adjudicated and/or 
addressed by the RO (the Agency of Original Jurisdiction 
(AOJ) in this case).  Therefore, the Board does not have 
jurisdiction over these claims, and they are referred to 
the RO for appropriate action.  


FINDINGS OF FACT

1.  All reasonable notification and development necessary for the 
equitable disposition of the instant case have been completed.

2.  The record reflects the Veteran sustained a left shoulder 
injury in September 2002 while attempting to mount a stationary 
bicycle while undergoing physical therapy at a VA Medical Center 
(VAMC).

3.  The left shoulder injury incurred as a result of the 
September 2002 VA physical therapy was not the result of 
carelessness, negligence, lack of proper skill, error in 
judgment, or lack or appropriate supervision.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for left 
shoulder rotator cuff repair with surgical repair are not met.  
38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.159, 3.361 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans 
Claims Assistance Act of 2000 (VCAA), VA has an obligation to 
notify claimants what information or evidence is needed in order 
to substantiate a claim, as well as a duty to assist claimants by 
making reasonable efforts to get the evidence needed.  See 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002).  

The Court has held that adequate notice, as required by 38 U.S.C. 
§ 5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction decision on a claim 
for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 
(2004).  In this case, the Veteran was sent pre-adjudication 
notice via a letter dated in March 2005, which is clearly prior 
to the May 2005 rating decision that is the subject of this 
appeal.  He was also sent additional notification via a May 2007 
letter, followed by readjudication of the appeal by an April 2010 
Supplemental Statement of the Case which "cures" the timing 
problem associated with inadequate notice or the lack of notice 
prior to the initial adjudication.  Mayfield v. Nicholson, 20 
Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d 
at 1333-34.  

Taken together, the aforementioned VCAA letters informed the 
Veteran of what was necessary to substantiate his current 
appellate claim, what information and evidence he must submit, 
what information and evidence will be obtained by VA, and the 
need for the Veteran to advise VA of or to submit any evidence in 
his possession that was relevant to the case.  As such, this 
correspondence fully complied with the notice requirements of 38 
U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the Court's holding in Quartuccio, supra.  
Moreover, the May 2007 letter included information regarding 
disability rating(s) and effective date(s) as mandated by the 
holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective 
May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The 
amendments apply to applications for benefits pending before VA 
on, or filed after, May 30, 2008.   The amendments, among other 
things, removed the notice provision requiring VA to request the 
veteran to provide any evidence in the veteran's possession that 
pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and 
that claimants are given the opportunity to submit information 
and evidence in support of their claims.  Once this has been 
accomplished, all due process concerns have been satisfied.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. 
App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  
In view of the foregoing, the Board finds that the Veteran was 
notified and aware of the evidence needed to substantiate his 
38 U.S.C.A. § 1151 claim and the avenues through which he might 
obtain such evidence, and of the allocation of responsibilities 
between himself and VA in obtaining such evidence.  Accordingly, 
there is no further duty to notify.

In addition, the Board finds that the duty to assist a claimant 
in the development of his or her case has been satisfied.  The 
Veteran has had the opportunity to present evidence and argument 
in support of his claim, to include at the July 2006 Board 
hearing.  Various records were obtained and considered in 
conjunction with this case, and nothing indicates the Veteran has 
identified the existence of any other relevant evidence that has 
not been obtained or requested.  Moreover, he was accorded VA 
medical examinations regarding this case in May 2005 and February 
2010, the latter of which included an opinion that addressed the 
criteria for compensation under 38 U.S.C.A. § 1151.  As this 
opinion was based upon both a medical evaluation of the Veteran, 
and an accurate understanding of his medical history based upon 
review of his VA claims folder, the Board finds it is supported 
by an adequate foundation.  No competent medical evidence is of 
record which specifically refutes the findings of the February 
2010 VA examination, and the Veteran has not otherwise identified 
any prejudice therein.  Accordingly, the Board finds that this 
examination is adequate for resolution of this case.  
Consequently, the Board finds that the duty to assist the Veteran 
has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in 
conjunction with this case.  Although the Board has an obligation 
to provide reasons and bases supporting this decision, there is 
no need to discuss, in detail, the extensive evidence submitted 
by the appellant or on his behalf.  See Gonzales v. West, 218 
F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the 
entire record, but does not have to discuss each piece of 
evidence).  Rather, the Board's analysis below will focus 
specifically on what the evidence shows, or fails to show, on the 
claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) 
(noting that the Board must analyze the credibility and probative 
value of the evidence, account for the evidence which it finds to 
be persuasive or unpersuasive, and provide the reasons for its 
rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of a 
matter, the benefit of the doubt shall be given to the claimant.  
38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding 
service origin, such doubt will be resolved in the favor of the 
claimant.  Reasonable doubt is doubt which exists because of an 
approximate balance of positive and negative evidence which does 
not satisfactorily prove or disprove the claim.  38 C.F.R. § 
3.102.  The question is whether the evidence supports the claim 
or is in relative equipoise, with the claimant prevailing in 
either event, or whether a fair preponderance of the evidence is 
against the claim, in which event the claim must be denied.  
Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Legal Criteria

Under the current provisions of 38 U.S.C.A. § 1151 compensation 
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. For 
purposes of this section, 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-

(1) 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 as defined in 
section 1701(3)(A) of this title, and the 
proximate cause of the disability or death 
was:

(A) 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

(B) an event not reasonably foreseeable.

From the plain language of the statute, it is clear that to 
establish entitlement to Section 1151 benefits, these factors 
must be shown: (1) Disability/additional disability; (2) that VA 
hospitalization, treatment, surgery, examination, or training was 
the cause of such disability; and (3) that there was an element 
of fault on the part of VA in providing the treatment, 
hospitalization, surgery, etc., or that the disability resulted 
from an event not reasonably foreseeable.

The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 
3.361, in pertinent part also provides that

(1) Care, treatment, or examination.  To 
establish that carelessness, negligence, 
lack of proper skill, error in judgment, or 
similar instance of fault on VA's part in 
furnishing hospital care, medical or 
surgical treatment, or examination 
proximately caused a veteran's additional 
disability or death, it must be shown that 
the hospital care, medical or surgical 
treatment, or examination caused the 
veteran's additional disability or death 
(as explained in paragraph (c) of this 
section); and (i) VA failed to exercise the 
degree of care that would be expected of a 
reasonable health care provider . . . .

38 C.F.R. § 3.361(d).

Analysis

The Veteran essentially contends that he incurred his left 
shoulder disorder due to VA physical therapy in September 2002.  
Specifically, in the course of receiving physical therapy at a 
VAMC for his knee disabilities, he was told to mount an exercise 
bicycle in spite of the fact that he clearly indicated to the 
attending VA therapist or technician that he could not lift his 
leg high enough to do that.  He contends that he fell and injured 
his left shoulder while mounting the exercise bicycle at the 
direction of that VA clinical employee, and that this occurred 
after the clearly indicated warning by the Veteran that he was 
unable to so mount the bicycle.  That injury to his left 
shoulder, he furthermore recounts, tore the rotator cuff in his 
left shoulder and required surgical treatment.

A VA physical therapy treatment record dated in September 2002, 
includes the Veteran's complaint that he hurt his left shoulder 
while mounting an exercise bicycle during physical therapy at a 
VAMC.  A September 2002 Kinesiotherapist's note recorded the 
finding that the Veteran had slipped on a bicycle pedal while 
attempting to mount the bicycle, after which the patient's left 
arm fell into a stationary bicycle arm guard.  Ice was applied to 
his left shoulder for 30 minutes, after which no increased 
symptoms were detected.  Also on file is a March 2004 incident 
report the Veteran filed with VA regarding the circumstances of 
this injury.

An October 2002 rehabilitation medicine outpatient consult notes 
that the Veteran had reported to an emergency room subsequent to 
the injury occurring.  The October 2002 VA treatment record also 
records the findings of an X-ray of the left shoulder.  The 
examination was suboptimal secondary to underpenetration. No 
gross fracture was found.  However, there were degenerative 
changes along the superior lateral aspect of the humoral head.  A 
review of radiographs from a VA orthopedic evaluation conducted 
the previous day revealed some changes around the greater 
tuberosity sufficient to suggest possible cuff avulsion.  The 
problem assessed at the time was pain and limitation of motion of 
the left shoulder secondary to biceptal tendonitis.  A partial 
tear of the cuff, it was stated then, could not be excluded.

In October 2003, the Veteran underwent outpatient surgery for the 
repair of the left rotator cuff.  The operation performed 
included left shoulder diagnostic arthroscopy, left shoulder 
arthroscopic subacromial decompression, and left shoulder 
arthroscopic rotator cuff repair.  Post-operative diagnoses were 
left shoulder impairment syndrome and left shoulder full 
thickness rotator cuff tear.

A May 2005 VA examination of the Veteran's left shoulder recorded 
the Veteran's complaint that his condition had become 
progressively worse since the injury.  X-ray findings of the left 
shoulder taken at the time revealed a surgical device at the 
humoral head; no arthritic changes were noted.  Diagnosis was 
left rotator cuff tear with surgical repair.

Initially, the Board notes that, as detailed above, there appears 
to be no dispute that the Veteran sustained a left shoulder 
injury while attempting to mount a stationary bicycle while 
undergoing physical therapy at a VAMC.  Further, there is no 
indication of a left shoulder disability prior to this injury, no 
other injuries are demonstrated in the record, and the Veteran 
underwent surgery for left rotator cuff tear subsequent to the 
September 2002 injury.  As such, the Board finds that the first 
two elements necessary for compensation under 38 U.S.C.A. § 1151 
are met: (1) disability/additional disability; and (2) VA 
hospitalization, treatment, surgery, examination, or training was 
the cause of such disability.  Therefore, the resolution of this 
claim depends upon whether the third element is satisfied: (3) 
that there was an element of fault on the part of VA in providing 
the treatment, hospitalization, surgery, etc., or that the 
disability resulted from an event not reasonably foreseeable.

In this case, the Board finds that the left shoulder injury 
incurred as a result of the September 2002 VA physical therapy 
was not the result of carelessness, negligence, lack of proper 
skill, error in judgment, or lack or appropriate supervision.  No 
competent medical opinion appears to be of record to that effect 
to include the May 2005 VA examination.  In fact, no opinion had 
been requested at the May 2005 VA examination, nor was one 
proffered; and the examiner reported that the claims file was not 
reviewed.  Consequently, the Board remanded this case for a new 
examination and opinion to address the requisite elements of this 
38 U.S.C.A. § 1151 claim.

In accord with the Board's remand directives, the Veteran 
underwent a new VA medical examination in February 2010.  
Diagnosis was left shoulder rotator cuff tear and impingement 
syndrome.  Following evaluation of the Veteran and review of his 
VA claims folder, the examiner opined that it was less likely as 
not that the Veteran's left shoulder disorder was attributable to 
carelessness, negligence, lack of proper skill, error in 
judgment, or any fault of the VA treatment providers.  The 
examiner stated that this was an unfortunate event, but 
essentially what occurred was an accident, and the examiner 
believed it was not the fault of the VA or any of the providers 
at the VA.  To substantiate this opinion, the examiner noted the 
Veteran had the exact same condition occur in 2005 when he was 
getting out of the bathtub and fell and tore his right rotator 
cuff, apparently when he had some sort of contact with the toilet 
after falling.  The examiner also stated that the Veteran was 
susceptible to falls, and believed that the susceptibility was 
most likely secondary to morbid obesity, which was a problem list 
and was seen on examination.  Moreover, the examiner emphasized 
there was no data whatsoever to say there was any sort of 
negligence or this was the fault of VA.  Essentially what happed 
is that the Veteran fell and it was an accident, but no one at VA 
was to blame just like no one was to blame when he injured his 
right shoulder.

The Board acknowledges that the February 2010 VA examiner's 
opinion did not explicitly state whether the Veteran's left 
shoulder injury was due to an event not reasonably foreseeable.  
However, the examiner did note this element as part of the 
question he was asked to answer.  As such, he was aware of this 
issue, and it appears that this element was included as part of 
his description of fault on the part of the VA.  Such an 
interpretation is consistent with the relevant regulatory 
provisions, and the Board's own description of the elements of a 
38 U.S.C.A. § 1151 claim detailed above.  Moreover, the examiner 
emphasis on the injury being an accident goes to a finding that 
the VA therapist in this case did exercise the degree of care 
that would be expected of a reasonable health care provider.  
Consequently, the examiner's opinion is sufficient to address all 
elements of this U.S.C.A. § 1151 claim.  

No competent medical evidence is of record which refutes the 
conclusions of the February 2010 VA medical examiner, to include 
the rationale in support thereof.

In view of the foregoing, the Board finds that the preponderance 
of the evidence is against a finding that there was an element of 
fault on the part of VA in providing the treatment, 
hospitalization, surgery, etc., in this case or that the left 
shoulder disability resulted from an event not reasonably 
foreseeable.  Therefore, the preponderance of the evidence is 
against the claim of entitlement to compensation under 38 
U.S.C.A. § 1151, and it must be denied.  As the preponderance of 
the evidence is against this claim, the benefit of the doubt 
doctrine is not for application in the instant case.  See 
generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. 
Cir. 2001).


ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for left 
shoulder rotator cuff repair with surgical repair is denied.


____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs