Citation Nr: 1120899 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 08-26 589 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees and laceration of the forehead, claimed to have been sustained while in pursuit of a program of Department of Veterans Affairs (VA) vocational rehabilitation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to May 1988. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2008 rating decision, by the North Little Rock, Arkansas, Regional Office (RO), which denied the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees and laceration of the forehead, claimed to have been sustained while in pursuit of a program of Department of Veterans Affairs (VA) vocational rehabilitation. In August 2009, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (VLJ) sitting at the RO. A transcript of this hearing has been prepared and associated with the claims folder. At the hearing, the Veteran submitted additional evidence along with a waiver of original jurisdiction. 38 C.F.R. § 20.1304 (2010). In a Statement in Support of Claim (VA Form 21-4138), dated in July 2010, the Veteran raised a claim of entitlement to service connection for arthritis in the wrists and knees. That issue has not been developed for appellate review and is referred to the agency of original jurisdiction (AOJ) for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (noting that the Board does not have jurisdiction of issues not yet adjudicated by the AOJ). In statements submitted by the Veteran in March 2011, he appears to be making a motion to advance his appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a) (2) (West 2002). However, that motion has been effectively rendered moot in light of the Board's adjudication of the claim. FINDINGS OF FACT 1. The Veteran was injured while riding a bicycle. Riding a bicycle was not a necessary component of the training or services program authorized for the Veteran. 2. A preponderance of the evidence demonstrates that the Veteran's multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees and laceration of the forehead, were not caused by an essential activity or function of his VA training program. CONCLUSION OF LAW The requirements for entitlement to compensation under 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees and laceration of the forehead, facial and dental injuries sustained while in pursuit of a program of VA vocational rehabilitation have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in July 2007 from the RO to the Veteran, which was issued prior to the RO decision in February 2008. That letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty-to-assist requirements of the VCAA and the implementing regulations. Neither the Veteran nor his representative has contended that any evidence relative to the issue decided herein is absent from the record. A VA opinion has not been sought because, as shown below, there is no medical evidence or opinion that would be relevant to or alter the Board's determination that the Veteran's claim lies beyond the ambit of section 1151 because, even fully crediting his testimony and assuming the existence of all claimed disabilities, his claimed injuries were not caused by VA care, treatment, or examination. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. Therefore, no useful purpose would be served in remanding the issues decided herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. By a rating action in February 2005, the RO granted service connection for bilateral sensorineural hearing loss, evaluated as 20 percent disabling, effective October 6, 2004; service connection was also granted for tinnitus, evaluated as 10 percent disabling, effective October 6, 2004. The Veteran had a combined evaluation of 30 percent. The Veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 (VA Form 21-4138) was received in June 2007. Submitted in support of the claim was an accident report, dated June 8, 2007, which indicates that the Veteran was on his bicycle when he was struck by an automobile making a right turn at an intersection; the police department report noted that the Veteran was ejected onto the car and went tumbling onto the pavement. It was determined that the driver of the automobile was at fault for failure to yield and careless driving. Attached to this report was the statement of a witness, who stated that the Veteran was on his bike when he was struck by the car. Also submitted in support of the claim were treatment reports from Baxter Regional Medical Center dated in June 2007. It was noted that the Veteran presented to the emergency department after being involved in a motor vehicle versus bicycle accident; he reported being hit by an oncoming car and thrown from his bicycle. It was observed that he had a large laceration superior left skull. He had deformities of both wrists, large contusion on the left cheek, multiple abrasions on the lower extremities, and significant amount of swelling in the right hand. Following a physical evaluation, the impressions were bicycle accident with car collision, left frontal scalp laceration and repair; and bilateral upper extremity fractures in severe comminuted type fractures, with displacement. Of record is a statement from C. M., a professor at Arkansas State University, dated in June 2007, indicating that the Veteran attended his World Geography class on Thursday June 7, 2007; he noted that the class began at 10:00 AM and the Veteran left sometime after 11:00 AM. In another lay statement, dated in June 2007, the Director of Student Services at Arkansas State University confirmed that the Veteran was a first summer term student at the University. The director further noted that the route the Veteran took on his bicycle from his home to the university is the safest and most expeditious route. The Veteran was afforded a VA examination in August 2007. It was noted that the Veteran was in the Chapter 31 program and was coming out of a class on June 7, 2007 when he was run over and sustained bilateral fractures to his forearms, wrists, and the third, fourth, and fifth metacarpals of the right hand. He also sustained lacerations to his knees and his left forehead. The laceration to his right knee was sutured. The left knee laceration did not require sutures. The laceration to his left forehead did receive 10 sutures; those were all healing well. Following an evaluation, the pertinent diagnoses were bilateral wrist and forearm fractures, comminuted, status postoperative open reduction and internal fixation; fractures, right third, fourth, and fifth metacarpals, requiring stabilization with open reduction and internal fixation to the fifth metacarpal; lacerations to knees, healed without scarring; and residuals of laceration to left forehead with a scar. The examiner stated that the diagnoses regarding the joints are justified. He noted that the Veteran wears splints on both forearms and wrists; he was in school up until the above mentioned accident. The joints are painful on motion; however, there is no additional limitation following three repetitions. The examiner related that the Veteran's symptoms are pretty much the same day to day, and he usually does not have flare-ups. A functional capacity evaluation was performed in April 2008. The Veteran again reported that he was injured when a car struck the bicycle he was riding on June 7, 2007 when he was struck on Bomber Blvd and Hwy 62E. He stated that he was thrown up over the vehicle and landed on both arms. He spent five days in intensive care as he sustained a fracture of the radius shaft and multiple fractures of the metacarpals as well as an open wound to the scalp and abrasions. It was noted that the Veteran demonstrated the ability to perform work within the light work level according to the guidelines established by the U.S. Department of Labor guidelines with restrictions related to his bilateral upper extremities. A neuropsychological evaluation was conducted in January 2009. The examiner stated that the Veteran's clinical history, mental status examination and neuropsychodiagnostic test profile date revealed a pattern of abnormal responses and pathnomonic indices consistent with the presence of impaired brain function of moderate severity. At his personal hearing in August 2009, the Veteran testified that he used his own vehicle to drive back and forth to school in participation of his Chapter 31 program; he did not receive any reimbursement. The Veteran explained that, on June 7, 2007, at approximately 12 noon, he had finished a test and had had a cup of coffee when he left the University on a bicycle; he was about one mile away when a girl ran a red light and ran him over in a crosswalk. The Veteran indicated that he suffered broken arms from the tips of his fingers to his elbows; he also lost a lot of blood from his skull from the impact of his head hitting the pavement. The Veteran reported that he suffered a traumatic brain injury as a result of the incident. The Veteran stated that he has not worked since the incident. The Veteran maintained that the incident occurred while he was participating in a vocational rehabilitation training program. The Veteran stated that he has been dropped from the training program because he is unable to function properly. It was argued that the vocational rehabilitation program requires that the Veteran attend classes; therefore, his coming and going using his bicycle should be considered as part of the program. Submitted at the hearing was an internet citation to a court case, filed in January 2007, regarding the "coming and going rule" under the Workers' Compensation Act. Submitted in August 2010 was a copy of a Social Security Administration (SSA) award, dated in July 2010, indicating that, on May 7, 2010, it was determined that the Veteran was found to have become disabled beginning on June 7, 2007. III. Legal Analysis. The veteran is seeking compensation under the provisions of 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees and laceration of the forehead sustained in a June 2007 bicycle accident. The Veteran in essence contends that because he was injured while riding his bicycle home from a VA vocational rehabilitation class, he is entitled to § 1151 benefits. Pertinent Laws and Regulations. The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. VA regulations codifying the requirements for claims requesting benefits under 38 U.S.C.A. § 1151 (a) filed on or after October 1, 1997, became effective September 2, 2004. A review of the record reveals that the Veteran's claim for compensation benefits was received in June 2007. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361 (2010). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of training and rehabilitation services or compensated work therapy (CWT) upon which the claim is based to the veteran's condition after such care or treatment. See 38 C.F.R. § 3.361(b) (2010). To establish causation, the evidence must show that the veteran's participation in an essential activity or function of the training or services program provided or authorized by VA proximately caused the disability. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training or services program that VA provided or authorized. See 38 C.F.R. § 3.361(d) (3) (2010). Proximate cause is defined as the "action or event that directly caused the disability or death, as distinguished from a remote contributing cause." See 38 C.F.R. § 3.361(d) (2010). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis. The Veteran does not allege, nor does the record indicate, that he was injured through any fault on the part of VA. He was not on VA property, nor was he actually participating in any VA program, when the bicycle accident occurred. However, per Jackson, negligence on the part of VA need not necessarily be demonstrated. As noted above, to establish that the provision of training and rehabilitation services proximately caused the Veteran's disability, it must be demonstrated that his participation in an "essential activity or function of the training" program proximately caused his disability. The Veteran does not need to show that VA approved that specific activity or function, as long as the activity is generally accepted as being a "necessary component of the training or services" program that VA provided or authorized. See 38 C.F.R. § 3.361(d) (3) (2010). Accordingly, in order to establish entitlement to compensation under 38 U.S.C.A. § 1151, the Veteran must demonstrate that riding a bicycle was an essential activity or function of his training program (or a necessary component thereof). The Veteran has argued that traveling from his residence to class was an essential activity or function of his VA training. The Veteran does not allege that bicycle riding, per se, or indeed any form of exercise or transportation, was a requirement of his vocational rehabilitation course, and there is nothing in the record to suggest otherwise. It is undisputed that the Veteran was not injured while studying or attending class. Instead, he was injured on his commute home. He was attending classes for a Vocational rehabilitation training program. It is manifestly obvious that riding a bicycle was not an "essential activity or function" of this training, nor was it a "necessary component" of the training he was receiving. Riding a bicycle was merely a way to get to and from his classes; significantly, in his June 2007 statement, the director of student services confirmed that the route that the Veteran takes on his bicycle form home to the University is the safest and most expeditious route. The director did not say that riding the bicycle was essential to the Veteran's training program. The Veteran's bicycle accident was wholly removed from any substantive aspect of the Veteran's training program. In Jackson v. Nicholson, 433 F. 3d 822 (Fed. Cir. 2005), the Federal Circuit noted that a "causal connection" must exist between the VA program and the claimed injury. No such causal connection exists here. The VA training program did not cause the Veteran's injuries; misadventure and a careless driver of another vehicle on a public highway did. In the accident report, dated in June 2007, a police officer specifically stated that the operator of the vehicle was at fault in causing the accident for failure to yield and careless driving. In essence, the Veteran has presented a "but for" argument, to the effect that but for his participation in VA training, he would not have been commuting from classes, and if he had not been commuting he would not have been injured. There is nothing in the law, regulations or court decisions which make VA an insurer with respect to injuries sustained via activities which are only tangentially connected with VA programs, such as traveling to and from such programs. A "causal connection" must exist. In this case, such a "causal connection" does not. In summary, the Veteran's bicycle riding was not an essential activity or function of his training program. Nor was it a necessary component thereof. Furthermore, there is no proximate causal connection between the multiple injuries, involving the wrists, forearms, knees and left forehead, sustained in the June 2007 bicycle accident and an essential activity or function which was within the scope of the VA vocational rehabilitation course. As such, there is no legal basis for compensation for the injuries resulting from the bicycle accident, and the appeal is denied. See 38 C.F.R. § 3.361 (2010). In a case like this, where the law, but not the evidence, is dispositive, the Veteran's claim should be denied because of the lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1996). Since the Veteran seeks compensation under 38 U.S.C.A. § 1151 for additional injuries to the wrists, forearms, fingers, knees and forehead, all of which allegedly incurred as a result of an intervening cause not resulting from treatment or examination rendered by the VA, these claims, which are without legal merit, must be denied. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees and laceration of the forehead, sustained while in pursuit of a program of vocational rehabilitation is denied. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs