Citation Nr: 1309537 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 08-00 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for residual of a fracture of the left ankle. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1968 and from December 1968 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing the undersigned Veterans Law Judge in December 2012. A copy of the December 2012 hearing transcript is contained in the Veteran's virtual VA folder. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDING OF FACT The Veteran's residuals of a left ankle fracture did not result from hospital care, medical or surgical treatment, or examination furnished by VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for the residuals of a left ankle fracture have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In December 2006, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In January 2007 the Veteran submitted a statement that he had no further information or evidence to give the VA in support of his claim. He requested that VA decide his claim as soon as possible. As to the duty to assist, VA has associated with the claims folder the Veteran's VA records. The record reveals that immediately following his left ankle fracture the Veteran was taken to a private hospital for left ankle surgery. In August 2007 and February 2008 letters the RO requested that the Veteran provide information and authorization so that VA could obtain the Veteran's private treatment records. No response was received from the Veteran. The Board notes that corresponding to VA's duty to assist the Veteran in obtaining information is a duty on the part of the Veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the appellant in developing his claim, rather than a duty on the part of VA to develop the entire claim with the appellant performing a passive role. See Turk v. Peake, 21 Vet. App. 565, 568 (2008). Without the Veteran's cooperation on this matter, VA is unable to request the Veteran's private medical records and must adjudicate the Veteran's claim based on the evidence currently of record. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran asserts that he should be granted compensation for residuals of a left ankle fracture pursuant to 38 U.S.C.A. § 1151. The evidence of record indicates that the Veteran was a resident at a VA domiciliary on November 2, 2006, when he was found on the ground with a severely swollen left ankle. The Veteran reported that he fell off the 2nd floor balcony and injured his left ankle. The record reveals that the Veteran was a resident at a VA domiciliary while enrolled in a substance abuse treatment program (SATP). A November 2, 2006 VA domiciliary note states that the Veteran fell off the 2nd floor balcony trying to get out of his room. Another record states that the Veteran was found on the ground stating that he fell off the 2nd floor balcony and injured his left ankle. It was noted that the Veteran was taken to a private hospital where he underwent open reduction, internal fixation (ORIF) for a left pilon fracture of the left ankle. Afterwards he was admitted to the Temple VA Medical Center. The Veteran testified that he was taking a smoke break on a second floor balcony of the VA domiciliary. He said that it was customary for veterans to go out and take a smoke break before coming in for head count. He reported that he leaned over the balcony too far and fell. He said that no one saw him fall. He stated that since then VA has corrected the problem that allowed him to lean over the balcony and fall. He asserted that this was evidence of VA negligence in having a situation that allowed him to fall from the balcony and injure his ankle. Under 38 U.S.C.A. § 1151 (West 2002), compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. A disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished under the law administered by the Secretary, and (3) the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. Given the above, the record clearly shows that the Veteran's injury occurred coincidentally to his participation in an SATP program while residing at a VA domiciliary. The evidence does not show that the Veteran's left ankle fracture was caused by the actual provision of hospital care, medical or surgical treatment, or examination at the VA domiciliary. Applicable regulations define "domiciliary care" as the furnishing of a home to a veteran, embracing the furnishings of shelter, food, clothing, and other comforts of home, including necessary medical services. 38 C.F.R. § 17.30(b). While it is certainly possible for a veteran to undergo medical treatment while a resident at a VA domiciliary, the facts in this case indicate that the Veteran was taking a smoke break and that he was alone at the time. He was not receiving any actual VA medical care during the incident, and he was not undergoing any examination. Simply put, the mere fact that a claimant is harmed by an event that occurs coincidentally during domiciliary residence is not sufficient to establish causation. See Mangham v. Shinseki, 23 Vet. App. 284 (2009). The Board has considered the recent U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decision, Viegas v. Shinseki, No. 10-0568, 2011 WL 5865451 (Vet. App. Nov. 23, 2011). In this case a veteran participated in a prescribed aquatic therapy session at a VA medical center. After one of these sessions, he stopped to use a restroom located in the VA facility. While in the restroom, the grab bar he was using to lift himself into his wheelchair became loose from the wall and he fell to the ground, causing him to sustain additional injuries to his upper and lower extremities. In this case, the Federal Circuit stated that the veteran's injuries were proximately caused by VA's failure to properly install and maintain the grab bar in the VA medical facility's restroom. The Federal Circuit noted that there was nothing in the plain language of section 1151 that required a veteran's injury to be "directly" caused by the "actual provision" of medical care by VA personnel. Instead, the statute requires only a "causal connection," which includes injuries that occur in a VA facility as a result of VA's negligence. Accordingly, the Federal Circuit found that there was nothing to indicate that Congress had intended to preclude compensation for injuries stemming from VA's failure to properly install and maintain the equipment necessary to provide health care services. The instant case can be clearly distinguished from the holding of the Federal Circuit in Viegas. In Viegas, the use of the medical facility's restroom was a predictable and necessary component of the veteran's medical treatment. In contrast to Viegas, the Veteran went out on a balcony to take a smoke break. The use of the balcony, for whatever purpose, was clearly not a component, necessary or otherwise, of medical treatment. Thus, there is no indication that the Veteran's injuries stemmed from VA's failure to properly install and maintain the equipment necessary to provide health care service. In other words, the holding in Viegas specifically noted that section 1151 does not extend to the "remote consequences" of hospital care or medical treatment provided by the VA. The evidence of record in the instant case clearly shows that the Veteran's fall was a remote consequence of the Veteran's SATP treatment and was not an injury resulting from VA's failure to properly maintain the equipment necessary for the provision of health care services. Consequently, the Veteran is not entitled to compensation benefits under 38 U.S.C.A. § 1151 for the residuals of a fracture of the left ankle that occurred at the VA domiciliary facility. The Board has considered the Veteran's assertions of negligence on the part of VA due to the VA's failure to properly fortify a balcony to prevent accidental falls. However, because the evidence does not demonstrate that actual hospital care, medical or surgical treatment, or examination provided by VA caused the claimed left ankle disability, and does not demonstrate that the balcony is equipment necessary for the provision of health care services, the analysis need not advance to the question of proximate cause. See 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). In light of the above, the Board finds that the criteria for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a left ankle fracture have not been met, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (Continued on next page.) ORDER Compensation under 38 U.S.C.A. § 1151 for residuals of a fracture of the left ankle is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs