Citation Nr: 1323017 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 06-18 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right foot disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left foot disability. 3. Entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a stomach disability, to include as due to a service-connected left knee disability and the medications prescribed to treat it. 6. Entitlement to service connection for a left shoulder disability. 7. Entitlement to an initial rating greater than 20 percent for left knee instability. 8. Entitlement to an initial rating greater than 10 percent for left knee degenerative joint disease. 9. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for neck and lumbar injuries claimed as due to treatment at the Albuquerque Department of Veterans Affairs Medical Center (VAMC) in April 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from November 1981 to July 1982. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In November 2009, the Veteran testified at a hearing before RO personnel. A transcript of that hearing is associated with the claims file. In March 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In December 2012, the Board remanded these matters to schedule the Veteran for Travel Board hearing at the RO. FINDINGS OF FACT 1. In March 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of claims for service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), a right knee disability, a stomach disability, and a left shoulder disability; claims to increased initial ratings for left knee instability and left knee degenerative joint disease; and the claims that new and material evidence has been received to reopen claims for service connection for a right foot disability and a left foot disability. 2. The Veteran is not shown to have an additional neck and lumbar spine disability that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospitalization or medical treatment at the Albuquerque VAMC in April 2008, or that the proximate cause of any additional neck and lumbar spine disability was an event which was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The requirements for compensation under 38 U.S.C.A. § 1151 for neck and lumbar injuries claimed to be caused by treatment provided by the VA at the Albuquerque VAMC in April 2008 are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal During the March 2013 hearing before the Board, the Veteran stated that he wanted to withdraw claims on appeal for service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), a right knee disability, a stomach disability, and a left shoulder disability; claims to increased initial ratings for left knee instability and left knee degenerative joint disease; and claims that new and material evidence has been received to reopen claims for service connection for a right foot disability and a left foot disability. In a March 2013 statement, received by the Board in May 2013, the Veteran reiterated his withdrawal request, noting that he was only continuing with his appeal for compensation for neck and back injuries under 38 U.S.C.A. § 1151. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R §§ 20.202, 20.204(b) (2012). Withdrawal may be made by the Veteran or the authorized representative. 38 C.F.R. § 20.204(c) (2012). As a result of the Veteran's withdraw of his appeals, no allegation of error of fact or law remains before the Board for consideration. Therefore, the Board finds that the Veteran has withdrawn the claims on appeal except for the claim for compensation under 38 U.S.C.A. § 1151. Therefore, the Board does not have jurisdiction to review the appeal as to those issues, and they are dismissed. Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in February 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent April 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. The Veteran's Virtual VA electronic records were also reviewed and considered. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Benefits Pursuant to 38 U.S.C.A. § 1151 When a Veteran suffers injury or aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the Veteran's own willful misconduct or failure to follow instructions, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded the same manner as if the additional disability or death were service connected. 38 U.S.C.A. § 1151 (West 2002). A disability is a qualifying disability if it was not the result of the Veteran's willful misconduct, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA, 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a) (West 2002). When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). VA hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2012). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2012). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2012). In essence, a claimed disability is a qualifying additional disability if such disability was not the result of the Veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and the proximate cause of the disability was due to either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance 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 (West 2002). Based upon the evidence of record, the Board finds that entitlement to compensation under 38 U.S.C.A. § 1151 for neck and lumbar spine injuries is not warranted. The Veteran contends that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 for neck and back injuries sustained while hospitalized in April 2008 at the Albuquerque VAMC. A December 2007 VA examination x-ray report shows that the Veteran believed he had arthritis of the lower back and required narcotics for the pain. An x-ray of the lumbar spine revealed moderate degenerative changes at L5-S1 with compression of the disc space and osteophyte formation. Lumbar spine was otherwise unremarkable. A March 5, 2008, VA physical medicine record notes that the Veteran was referred for chronic low back pain and bilateral knee pain. On March 28, 2008, the Veteran arrived at the Albuquerque VAMC by ambulance after threatening to jump off a bridge. The Veteran stated he was feeling suicidal due to his chronic pain, described as his pain in his knees and back. He was admitted to the hospital for safety and stabilization. A March 31, 2008, record notes that the Veteran was on Ward 7 of the psychiatric unit. An April 7, 2008, VA police report shows that operations was notified of a crisis team on Ward 7. A Ward 7 employee told the investigating officer that a patient was not reacting well to his medication and heard another patient say something about his time in service in the war to a friend on the phone. "Redacted" became upset and walked up behind "redacted" after he got off the phone and grabbed "redacted" shoulders and neck and started yelling. "Redacted" picked "redacted" up out of his wheelchair as Ward 7 staff rushed in and separated the two patients. "Redacted" told the investigating officer that he did not fight back and did not know why "redacted" reacted the way he did. The investigating officer noted that he did not speak with "redacted" since he had been placed in the seclusion room and was not responding to the staff's questions. An April 7, 2008, VA nursing note shows that the Veteran had an altercation with another patient. According to other patients, the Veteran provoked the other patient with barbs concerning his military duty, insulted other patient, and "goaded" the other patient into provocative action. The Veteran denied the other patients' account of what happened. It was also noted that the other patient grabbed the Veteran around his neck, lifted the Veteran from his chair and proceeded to place the Veteran in an extremely dangerous choke hold from behind. They were separated by staff. The Veteran continued to deny being provoking in any way. An April 7, 2008 VA psychiatry record notes that the Veteran was involved in a physical fight with another patient in the day room. The Veteran was grabbed by the neck after another patient got angry at him due to his continued "nagging." The Veteran stood up from the wheel chair trying to defend himself. He was caught by the neck. Nursing staff presented to the scene immediately and the Veteran and other patient were separated. The Veteran complained of exacerbation of chronic knee and back pain, although he denied sustaining an injury to the above mentioned areas. Physical examination revealed minimal scratches to the neck area and the lower back was symmetrical, tender to palpation. A VA hospital summary shows that the Veteran was discharged from the hospital on April 8, 2008. It was noted that on admission the Veteran was feeling depressed and suicidal, attributing his feeling to worsening back and ankle pain after narcotics were discontinued. On admission, the Veteran was complaining of severe back and knee pains and muscle cramps. The Veteran was restarted on narcotics. During his inpatient care, the Veteran was felt to be splitting the staff and was demanding. He was involved in a physical fight with another patient that apparently started with the other patent assaulting the Veteran in response to inappropriate comments made by the Veteran. It was noted that the Veteran was remorseful and motivated for treatment. An April 8, 2008, outpatient VA medical record noted that the Veteran complained of increased back pain and wanted a new back brace. On April 10, 2008, the Veteran presented to the emergency department with complaints of neck pain, nausea, and dizziness. The Veteran stated that he had been grabbed by the neck by another patient on Ward 7 two days prior. Physical examination revealed diffuse tenderness to the neck both paraspinous with mild spasms on movement, decreased range of motion secondary to pain. An x-ray of the cervical spine revealed a normal examination for the Veteran's age. The clinical impression was neck pain and the Veteran was sent home with a prescription. An April 16, 2008 VA internal medical record shows that the Veteran was seen on follow up for neck pain. The Veteran complained of dizziness since his fight with the other patient, but it was getting better. In April 2008, the Veteran through his representative, submitted a claim for benefits pursuant to 38 U.S.C.A. § 1151 for cervical spine and lumbar spine disabilities secondary to the assault. The Veteran stated that while on Ward 7 he was unable to use his knee and ankle braces, so he had a wheelchair. Another patient grabbed him by the neck and pulled him out of the wheelchair, dragging him about 5 feet and threw him on another chair. He contends he hit his back and that was when the staff came into the room. In a June 2008 letter, the Veteran stated that while in the care of the Albuquerque VAMC, he was physically assaulted without provocation by another patient. He reiterated his prior assertions, stating that the other patient caused further damage to his back and neck. He further stated that there were no health care personnel present when the incident took place. Medical records from the William Beaumont Army Medical Center, dated in June and July 2008, show that the Veteran was seen for complaints of low back pain. The Veteran stated that his pain was a result of an assault while at the VAMC in Albuquerque in April 2008. The clinical impressions were chronic low back pain and acute myofascial strain of the lumbar region. A March 2009 VA medical record shows that the Veteran had multiple complaints of neck pain and low back pain. He reported that his upper extremity problem started in April 2008 after he was assaulted by another patient at the VAMC. The assessment was chronic low back pain and neck pain with a muscle spasm component likely. A September 2009 VA medical record notes that a recent cervical MRI was undertaken. He was assessed with cervical degenerative joint disease. It was noted that the Veteran gave a history of injury to his neck last year at the VAMC and blamed most of his pain on that. The examiner noted that the Veteran had well-documented chronic pain before then. The impression was moderate to severe left neuroforaminal stenosis at C5-C6 due to facet degenerative changes and moderate left central protrusion at C6-C7 with an extruded component. A July 2010 VA chiropractic consultation record shows that the Veteran complained of chronic cervical and back pain from being assaulted as a patient on Ward 7 in April 2008. A June 2011 VA medical record shows that the Veteran was assessed with cervical stenosis with left upper extremity radiculopathy and lumbar DJD. During the March 2013 Board hearing, the Veteran testified that he was in a dining area and was approached by another patient who proceeded to grab him by his neck, picked him up and threw him against some chairs. He stated that his neck and back hit the chairs, and there was no staff around until a few minutes went by. The Veteran clarified that his contention was that the VA hospital was responsible for the altercation because they didn't step in since they were not present for several minutes after the altercation began and that after seeking treatment, VA stopped caring for his neck and lumbar spine complaints. The Veteran also testified that he did not have problems with his back prior to this altercation. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the credibility of the Veteran's lay statements are called into question. Although the Veteran testified that he did not have back problems prior to the altercations in April 2008 at the Albuquerque VAMC, the medical evidence of record is replete with findings that the Veteran had chronic low back pain, which was in part the reason he attempted suicide leading to his hospitalization in April 2008. After a careful review of the record, the Board finds that the pertinent evidence fails to show that the Veteran sustained an additional disability to his neck and back that was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in the Veteran's April 8, 2008 hospitalization. While the evidence shows that the Veteran is currently diagnosed with cervical stenosis and lumbar DJD, there is no medical evidence or medical opinion that indicates the Veteran has cervical spine and lumbar spine disabilities, or any aggravation of disabilities, that are the result of or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or that it was caused by an event that was not reasonably foreseeable. On the contrary, the accounts in the medical records from other patients on Ward 7 support a finding that due to the Veteran's misconduct in provoking another patient, the Veteran was involved in an altercation. Even if the altercation was not the result of the misconduct of the Veteran, it was the result of the actions of another patient, not of any VA employee. In order for additional disability to be compensable, it must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. The additional disability must have been the result of injury flowing directly from the actual provision of care, treatment, or examination furnished by VA. Loving v. Nicholson, 19 Vet. App. 96 (2005). The mere fact that a claimant is harmed by an event that occurs coincidentally with VA care, treatment, or an examination is not sufficient to establish causation. The relevant issue is whether VA's direct actions caused harm. Mangham v. Shinseki, 23 Vet. App. 284 (2009). For example, incidents that were found to be coincidental to, and not actually caused by VA care, treatment, or examination were where a Veteran was hit by another patient in a wheelchair while waiting for his appointment in a VA medical center; where a ceiling grate of panel fell on a Veteran during outpatient treatment; and where a Veteran incurred mental distress due to a shooting that occurred at the VA mental health domiciliary at which he was living. Sweitzer v. Brown, 5 Vet. App. 503 (1993); Loving v. Nicholson, 19 Vet. App. 96 (2005); Mangham v. Shinseki, 23 Vet. App. 284 (2009). However, where a Veteran was injured due to negligent supervision of hospital patients in a lock-down psychiatric facility, there was actual causation by VA care. Bartlett v. Shinseki, 24 Vet. App. 328 (2011). The Board finds that the preponderance of the evidence does not support entitlement to compensation under 38 U.S.C.A. § 1151 because the Veteran's alleged injury was not caused by VA care, treatment, or examination. Therefore, there is no actual causation. To the contrary, any injuries sustained to the Veteran's injury was caused by his misconduct during his stay on Ward 7, in which he provoked another patient. If not misconduct, his injuries were caused by the actions of another patient, not be the actions of VA. While the Veteran has claimed negligent supervision, the record shows fast response by VA personnel to separate the incident. The Board finds that the Veteran's statements are inconsistent with the evidence of record, and therefore, his assertions lack credibility and probative weight. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jones v. Derwinski, 1 Vet. App. 210 (1991). Although the Veteran asserts that there was no health care personnel present when the incident took place, that is in direct contradiction to VA nursing records, a VA police report, and VA psychiatry records documenting that VA staff were immediately involved in breaking up the altercation. Further, the facts of this case are distinct from in that there is absolutely no evidence of negligent supervision by the VA staff on Ward 7. Bartlett v. Shinseki, 24 Vet. App. 328 (2011). In this case, the Veteran's alleged injuries are analogous to the injuries incurred when being hit by another patient's wheelchair or a falling ceiling tile. Sweitzer v. Brown, 5 Vet. App. 503 (1993); Loving v. Nicholson, 19 Vet. App. 96 (2005). The injury was unrelated to the provision of any care by VA. Bartlett v. Shinseki, 24 Vet. App. 328 (2011) (if Veteran were arguing that he is entitled to benefits simply because he was in a VA hospital at the time another patient injured him, his argument would fail). As there is no actual causation, the Veteran's claim must fail. Accordingly, the Board finds that the Veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for neck and low back injuries due to medical care at the Albuquerque VAMC in April 2008, must be denied. The Board finds that the preponderance of the evidence is against the Veteran's claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER The issue of whether new and material evidence has been received to reopen the claim for service connection for a right foot disability is dismissed. The issue of whether new and material evidence has been received to reopen a claim of service connection for a left foot disability is dismissed. The claim of entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression, is dismissed. The claim of entitlement to service connection for a right knee disability is dismissed. The claim of entitlement to service connection for a stomach disability is dismissed. The claim of entitlement to service connection for a left shoulder disability. The claim of entitlement to an initial rating greater than 20 percent for left knee instability is dismissed. The claim of entitlement to an initial rating greater than 10 percent for left knee degenerative joint disease is dismissed. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for neck and lumbar injuries claimed as due to hospitalization and medical care at the Albuquerque VAMC in April 2008 is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs