Citation Nr: 1339012 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 06-09 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for spinal disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from November 1965 to November 1967. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a May 2009 decision, the Board denied the Veteran's claim for benefits pursuant to 38 U.S.C.A. § 1151 for spinal disability. The Veteran appealed the Board's May 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Memorandum Decision, the Court affirmed the Board's determination. The Veteran appealed the Court's November 2011 Memorandum Decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In a January 2013 decision, the Federal Circuit reversed the Court's decision and remanded the matter to the Court for further proceedings. In a June 2013 Memorandum Decision, the court reversed the Board's finding that the appellant's injury was not compensable under section 1151, vacated the Board's November 3, 2009 decision, and remanded the matter to the Board for further proceedings, consistent with its decision. A copy of the court's Memorandum Decision is in the claims file. FINDINGS OF FACT 1. In May 2004, the Veteran participated in a prescribed aquatic therapy session at a VA medical center (VAMC) after which he used a restroom at the VA facility. He fell in the bathroom as a result of a faulty grab bar and sustained injuries to his upper and lower extremities. 2. Resolving doubt in the Veteran's favor, the evidence of record supports a finding that his upper and lower extremity injuries sustained in the accident in the restroom of the VAMC in May 2004 were caused by the medical treatment or hospital care he received from VA. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for spinal disability are met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.6, 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that the Veteran is entitled to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for spinal disability, i.e., the benefit sought on appeal is granted. Therefore, no further discussion of the VCAA is warranted in this case as any deficiency has been rendered moot. Moreover, although the Veteran's claim for benefits pursuant of 38 U.S.C.A. § 1151 is being granted, no disability rating or effective date will be assigned and there can be no possibility of prejudice to the Veteran. The RO will again provide appropriate notice as to the rating criteria and effective date to be assigned prior to the making of a decision on this matter. The facts of this case are not in dispute. The Veteran served on active service from November 1965 to November 1967. After service, he was injured in a diving accident. As a result, he suffered from "incomplete" quadriplegia. He contends that he sustained injury to his neck and shoulder at the VAMC in Palo Alto that resulted in upper and lower extremity disabilities. The Veteran maintains that, while he was at the VAMC, he used a handicapped bathroom support bar that ripped from the wall and caused him to fall to the floor. Records show that, in May 2004, the Veteran participated in a prescribed aquatic therapy session at the Palo Alto VAMC. Afterward, he stopped to use a restroom in the VA facility. While he was in the restroom, the grab bar he was using to lift himself up into his wheelchair came loose from the wall, and he fell to the ground. See May 25 and 27, 2004 VA treatment records and June 11, 2004 Fall Report. As a result of his fall, the Veteran sustained injuries to his upper and lower extremities. See May 28, 2004 VA emergency room record. His condition deteriorated after his fall. See July 12, 2004 VA neurosurgery consult and November 12, 2004 VA medical record. Prior to the fall, he was occasionally able to walk with a walker but, since the accident, he was only able to stand with assistance. See July 21, 2004 VA medical record In his July 2004 claim for benefits pursuant to the provisions of to 38 U.S.C.A. § 1151, the Veteran asserted that, as a result of the fall in the VA restroom, he "incurred severe injury to his shoulder and neck resulting in loss of use of his lower extremities and impairment of his upper extremities." Title 38, United States Code, Section 1151 provides that, where a veteran suffers an injury or aggravation of an injury resulting in additional disability or death by reason of VA medical or surgical treatment, compensation shall be awarded in the same manner as if such disability or death were service connected. See Anderson v. Principi, 18 Vet. App. 371, 376 (2004); see also Kilpatrick v. Principi, 16 Vet. App. 1, 3 (2002). The appellant does not contend, nor does the evidence reflect, that consideration under any other theory of entitlement is warranted. 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 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 recently foreseeable. 38 U.S.C.A. § 1151. It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and that VA failed to exercise the degree of care that would be expected of a reasonable health-care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. 38 C.F.R. § 3.361(d)(1)(ii). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable in each claim is 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 (2013). 38 C.F.R. § 3.361(d)(2). Under 38 U.S.C.A. § 1151, there are two causation elements, a veteran's disability must not only be "caused by" the hospital care or treatment he received by VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." Here, the Federal Circuit found that there was "no question" that his injury met § 1151's second causation, since it was proximately caused by VA's failure to properly install and maintain the grab bar in a restroom at its Palo Alto VAMC, and that the "sole issue presented on appeal" was whether the Veteran's "injury was 'caused by' the medical or hospital care he received from VA." The Federal Circuit held that the first "causation element is satisfied not only when an injury is directly caused by the actions of VA employees, but also when that injury occurs 'in a [VA] facility' as a result of the VA's negligence." In this case, the Veteran came to the Palo Alto VAMC to participate in a recently-prescribed therapy session designed to help him manage his incomplete quadriplegia. He was injured because VA failed to properly install and maintain the equipment necessary to provide him with medical treatment. According to the Federal Circuit, the Veteran's injury was not "merely 'coincident' with his prescribed physical therapy but was, instead, caused by the VA's failure to properly maintain and install the equipment required so that treatment could take place." Citing Bartlett v. Shinseki, 24 Vet. App. 328, 334-5 (2011) (to the effect that section 1151 covered an injury incurred as the result of VA's failure to properly supervise patients hospitalized in a VA psychiatric facility); see also Sweitzer v. Brown, 5 Vet. App. 503, 507 (1993) (emphasizing that when a veteran goes to a VAMC for examination he remains under VA's "control and authority while on VA premises" and the VA bears responsibility "for taking all reasonable precautionary measures to assure" his safety). There was nothing in the plain language of 38 U.S.C.A. § 1151 that required that an injury be "directly" caused by the medical care provided by VA personnel. Rather the statute requires only a "causal connection." Citing Brown v. Gardner, 513 U.S. 115, 119, 115 S. Ct. 552 L.Ed 2d 462 (1994). Reviewing its holding in Jackson v. Nicholson, the Federal Circuit observed that it interpreted § 1151 expansively, and noted that "[t]he statute uses broad language and allows for compensation any time there has been an injury that results from hospitalization." Citing Jackson v. Nicholson, 433 F. 3d 822, 825 (Fed. Cir. 2005). In Jackson, the Federal Circuit held that the fact that a causal connection was required for compensation did not mean that the cause must be VA personnel. Thus, in Jackson, because the veteran would not have been injured had she not been hospitalized, her injury was the result of her hospitalization. In the Veteran's case, there was no dispute that the medical treatment provided by VA normally involves direct involvement with VA staff. The Veteran's physical therapy, for example, presumably involved direct interaction with VA personnel. The Federal Circuit concluded that the fact that VA medical treatment normally involved interaction with VA personnel did not mean that such treatment "only" encompasses the actions of VA employees. If, for example, a veteran who suffered from an infection visited a VAMC and obtained an antibiotic, his "medical treatment" would presumably include not only the actions of the VA physician who prescribed the antibiotic, but also the drug itself. The Federal Circuit held that, while the medical treatment provided by VA typically includes "direct involvement with VA staff," this does not mean that it does not also include the medications and equipment necessary to provide such treatment. Accordingly, for all the reasons stated above, the Board finds that the Veteran's May 2004 fall and subsequent upper and lower extremity disabilities were caused by VA medical treatment or hospital care. At the time of his fall, the Veteran's use of the restroom was part of medical treatment or hospital care provided by VA. His injury was caused by VA's failure to properly maintain and install the equipment required so that treatment could take place. Resolving all doubt in the Veteran's favor, compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for spinal disability is granted. 38 U.S.C.A. § 5107(b). ORDER Compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for spinal disability is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs