Citation Nr: 1339059 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-20 837 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability from right hand and right arm injuries, claimed to have been incurred as a result of a fall at Grand Island VA Medical Center (VAMC) on September 6, 2011. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955 and had subsequent service in the Army National Guard. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the RO in Lincoln, Nebraska, that denied compensation under 38 U.S.C.A. § 1151 for additional disability claimed as injuries to the right hand, right arm, and right ankle incurred in a fall at Grand Island VAMC on September 6, 2011. In July 2013, the Board remanded the issues of entitlement to compensation for these injuries under 38 U.S.C.A. § 1151 to the RO via the Appeals Management Center (AMC) for additional development. In a September 2013 rating decision, the AMC granted the Veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a right ankle disability incurred during the incident at issue, rated as 10 percent disabling from September 6, 2011. As a result, that issue is no longer before the Board. The case was subsequently returned to the Board, and the remaining issue on appeal is as listed on the first page of this decision. The record before the Board consists of an electronic (VBMS) claims file and a Virtual VA folder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was shown to have abnormality of the right thumb many years prior to the September 2011 fall that is the subject of this appeal. 2. On September 6, 2011, the Veteran slipped on a coffee spill at a VAMC and fell, injuring his right hand and arm. 3. The weight of the competent and credible evidence shows that the right hand and arm injuries have healed, and the Veteran does not have additional disability of the right hand and arm as a result of the fall at the Grand Island VAMC on September 6, 2011. CONCLUSION OF LAW Compensation under the provisions of 38 U.S.C.A. § 1151 for claimed additional disability of the right arm and right hand is not warranted. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all elements of a claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this case, a pre-adjudication VCAA notice letter was sent to the Veteran in October 2011 prior to adjudication of the claim for compensation under § 1151 claim in December 2011. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). This letter informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence. He was also advised of the "downstream" disability rating and effective date elements of his claim. As the pleading party attacking the agency's decision, the appellant, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in timing or content and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA also fulfilled its duty to assist him by obtaining all potentially relevant evidence in support of this claim that is obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his VA treatment records (including after his September 2011 slip and fall), and all relevant lay statements. A VA medical opinion was obtained in July 2013 concerning this claim. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The July 2013 VA opinion was provided by a medical professional, and the associated report reflects review and discussion of the appellant's prior medical history. Therefore, the Board concludes that the appellant was afforded an adequate examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There has been compliance with the Board's July 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). The Board finds that there has been substantial compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Concerning this, the Board directed that the RO/AMC obtain the relevant VA medical records, and this has been done. The Board also directed that a VA medical opinion should be obtained regarding the claim on appeal, and this has also been done. The medical opinion is responsive to the questions posed in the remand, and the VA medical opinion report and the other evidence of record provide the necessary evidence to adjudicate this appeal. Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and that appellate review may proceed without prejudicing the Veteran. Analysis The Board has reviewed all of the evidence in the Veteran's electronic VBMS file and Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the appellant's claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Compensation under 38 U.S.C.A. § 1151 The Veteran contends that he has additional disability of the right hand and arm due to a slip and fall incident at the Grand Island VAMC. Specifically, in a September 2011 written statement, he said he was at the Grand Island VAMC on September 6, 2011 to pick up his medication, when he slipped and fell due to a spill of coffee on the hallway floor. He contended that he hurt his hand and ankle in the fall. He said nurses helped him and took him for X-rays. He was told that his hand and arm were not broken, and they checked his ankle and sent him to pick up a topical cream for his ankle pain. He said his ankle became very swollen and hurt for a week. He was seen a week later, his ankle was X-rayed, and he was told his ankle was not broken. He was given a boot for his ankle. In an August 2012 substantive appeal, the Veteran contended that the VAMC was negligent because it did not post a warning of the spilled liquid on the floor or clean it up, and thus he slipped and fell. As noted above, the AMC has already awarded compensation under 38 U.S.C.A. § 1151 for a right ankle disability incurred during the September 6, 2011 incident at issue. The AMC determined that compensation was warranted for a right ankle injury and resulting disability, because this disability resulted from VA's negligence in a VA facility, based on the evidence including findings in a July 2013 VA examination. The question remaining on appeal is whether the Veteran also has additional right hand and right arm disabilities incurred due to this incident. Governing law and regulation provides that a Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012). See also 38 C.F.R. § 3.361(c), (d)(1), (d)(2) (2012). To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b) (2012). VA considers each involved body part or system separately. Id. In Viegas v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); §§ 1151(a)(1)(A), 1151(a)(1)(B). Thus, section 1151 contains two causation elements-a veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. However, section 1151 does not extend to the "remote consequences" of VA medical treatment, and a Veteran is not entitled to obtain section 1151 disability benefits simply because he was in a VA medical facility at the time he sustained an injury. Viegas, supra, citing Brown v. Gardner, 513 U.S. 115, 119, 115 S. Ct. 552, 130 L.Ed.2d 462 (1994). In Viegas, the Federal Circuit Court stated that "Congress intended to encompass not simply the actual care provided by VA medical personnel, but also treatment-related incidents that occur in the physical premises controlled and maintained by the VA." Id., at 1378 (Fed. Cir. 2013). In determining whether the Veteran's disability was actually caused by VA hospital care or medical treatment, only a causal connection, and not direct causation, is required. Viegas, 705 F.3d at 1380; see also Brown v. Gardner, 513 U.S. 115, 119 (1994). However, a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2012). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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. 38 C.F.R. § 3.361(d)(1) (2012). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2) (2012). 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. Id. 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). Here, for the reasons and bases below, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for claimed additional disability of the right hand and arm due to a fall on September 6, 2011, as the evidence does not show that this fall is an actual cause of any additional disability of the right hand and right arm. See Viegas, 705 F.3d 1380; 38 C.F.R. § 3.361(c)(1); see also 38 U.S.C.A. § 1151(a). Medical records dated prior to the September 6, 2011 incident reflect that the Veteran had an abnormality of the distal phalanx of the right thumb for many years prior to the incident. A February 1984 VA treatment record reflects that the Veteran had a partial amputation of the distal phalanx of the right thumb since childhood. This abnormality was also noted in a July 1984 VA treatment record, when the Veteran presented with chest pain and a complete physical examination was performed. A September 6, 2011 nursing intake clinic note reflects that the Veteran reported that he slipped on coffee by the coffee pot as he was leaving on the first floor. He said his right elbow hurt and he rated the pain as 8/10. He said his wrist was tender but did not hurt, and his third finger on his right hand hurt. The nurse noted redness and tenderness on the top of the right wrist. A September 6, 2011 primary care clinic note reflects that the Veteran reported that he slipped on coffee that morning. He stated that he was walking by the coffee pot, did not see that there was coffee on the floor, and he fell down. He did not pass out and did not hit his head. He said he fell forward and landed on his right arm. On examination, his right arm was tender along the mid-radius and ulna, he was able to hand grasp with no pain, but his middle finger was tender if it was extended. The diagnostic assessment was a fall, secondary to coffee on the floor; with no breaks seen. He was told to use Ben-gay or heat to the right arm as needed for pain. A September 6, 2011 X-ray study of the right forearm showed osteopenia, mild negative ulnar variance, moderate degenerative changes at the scaphotrapezium joint, small osseous excrescences extending from the olecranon process and distal humerus, and no fracture or dislocation. The diagnostic impression was chronic osseous findings as discussed above, with no acute findings. A September 6, 2011 X-ray study of the right hand showed diffuse osteopenia, moderate degenerative changes at the radiocarpal joint and scaphotrapezium joint, diffuse, mild degenerative changes of the interphalangeal joints. The examiner stated that the deformity of the distal phalanx of the thumb was presumably secondary to remote trauma. There was no acute fracture and no dislocation. The diagnostic impression was osteopenia and degenerative changes as discussed above. There was no acute osseous abnormality. The next day, the Veteran telephoned the VA to state that his right ankle was very swollen last evening, and felt he must have "twisted" it when he fell the previous day. He reported that his arm and finger were still sore, but better today. On September 12, 2011, the Veteran's only complaint pertained to his right ankle. A September 16, 2011 VA mental health note reflects that the Veteran reported financial difficulty and said that that he sprained his right ankle when he recently slipped and fell in primary care due to coffee being spilled on the floor. He said he had been encouraged to get a lawyer for this but would prefer to have someone at the VA help him with this situation. He wanted compensation for this since it was affecting his employability. He did not mention any right arm or hand complaints. In a December 7, 2011 neurosurgery consult note, the Veteran reported a history of low back pain for years. On musculoskeletal examination, upper extremity strength was strong and equal throughout at 5/5. On neurologic examination, upper extremity deep tendon reflexes were equal and symmetrical bilaterally. The examiner did not diagnose any disabilities of the right hand or arm. The diagnosis was L4-L5 spondylolisthesis. VA medical records dated from October 2011 to July 2013 reflect treatment for a variety of medical conditions, including a right ankle condition status post a fall, but are negative for complaints, treatment or diagnosis of a right hand or arm disability. In developing this claim for § 1151 compensation, VA has obtained a VA medical opinion in July 2013. In its remand for this VA medical opinion, the Board asked the examiner to identify any additional disability resulting from the fall, to include possible ankle, right arm and hand, and back conditions. In a VA medical opinion dated in July 2013, the examiner stated that he reviewed the Veteran's electronic claims file and medical records, and summarized relevant medical records, noting that the Veteran apparently fell on some coffee at the Grand Island facility, but the manner in which he fell was not documented or observed by others. He stated that based upon his review, the Veteran's right elbow and wrist and the right third finger, and possibly the right ankle were specifically injured during the initial fall. The examiner noted that two months after the incident, the Veteran complained of back pain for "years," which indicated that that the back problems were present prior to the September 2011 fall. The examiner also indicated that many of his back findings can come from natural progression with age, given the Veteran's current advanced age. The examiner stated that it appeared that only the right hand, right wrist, and the right third finger were injured, and likely the right ankle. He stated that the Veteran had additional disability of the right ankle due to the fall, specifically ongoing right ankle complaints and intermittent swelling and pain. No other additional disability from the fall was diagnosed. The examiner stated that it appeared that the other issues have healed. He based his opinion on a review of all of the Veteran's medical records and electronic claims file. The evidence shows that in the course of obtaining prescriptions at the Grand Island VAMC on September 6, 2011, the Veteran was injured when he slipped on a coffee spill and fell, injuring his right hand, right arm and right ankle. However, the Board finds that this claim must fail as the evidence does not show that the Veteran has incurred a "qualifying additional disability" of the right hand and arm, as required by governing law and regulation. See 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.361. In this regard, the Board notes that X-ray studies of the right hand and arm performed on September 6, 2011 shortly after the fall revealed no acute fracture and no dislocation. In fact, there were no acute findings, only chronic osseous findings such as osteopenia and degenerative changes, and the previously noted remote trauma to the distal phalanx of the right thumb. That same day, a primary care physician examined him and noted tenderness, hand grip without pain, and no breaks. The following day, the Veteran said his hand and arm symptoms were improving. Extensive subsequent VA medical records show that from then on, he did not complain of any right hand or arm symptoms, including when he was specifically discussing the fall with his therapist. Instead, his complaints related to his right ankle and several other conditions, and recent treatment records do not reveal any additional disability of the right hand and arm. Moreover, the Veteran has never claimed any back injuries or symptoms either at the time of his initial treatment on September 6, 2011 or afterward, and the examiner has opined that his back findings are likely due to age. The July 2013 VA examiner opined that his right hand and arm injuries from the incident had healed, after reviewing all of his medical records, and other than the right ankle disability, did not diagnose any other additional disability due to the fall. The Board finds that this medical opinion is competent and highly probative. The Veteran has not presented or identified any medical evidence refuting the VA examiner's unfavorable conclusions. The Veteran is certainly competent, even as a layman, to comment on things within the perception of his five senses, such as injury to his right hand and arm after a fall. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, although he reported injuries to these areas, he has never identified any additional chronic disability of the right hand or arm that resulted from the initial acute injury to these areas on September 6, 2011 after a slip and fall at a VAMC. In the absence of demonstrated additional disability of the right hand and right arm, the Board therefore finds that the preponderance of the evidence is against the claim of entitlement to § 1151 compensation for additional disability of the right hand and arm due to a slip and fall at a VAMC on September 6, 2011. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Accordingly, the appeal of this claim must be denied. ORDER The claim of entitlement to 38 U.S.C.A. § 1151 compensation for additional disability of the right hand and arm claimed to be due to a slip and fall at a VAMC on September 6, 2011 is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs