Citation Nr: 1341690 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 06-27 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from March 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2012. A transcript is of record. This claim was previously before the Board in October 2009 and January 2013, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Please note 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 The Veteran's low back disability did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a low back disability have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims decided herein, a letter dated in November 2003 satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim for entitlement to compensation under Section 1151 is being denied, no effective date will be assigned, so there can be no possibility of any prejudice to the Veteran. With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in May 2013 in conjunction with his claim. The examiner provided well-reasoned rationales for her opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. Analysis Pursuant to 38 U.S.C. § 1151, a Veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C. § 1151(a) (West 2002 & Supp. 2013); 38 C.F.R § 3.361 (2013). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the Veteran's condition after such treatment. 38 C.F.R § 3.361(b). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R § 3.361(c)(1). When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment. 38 C.F.R § 3.361(c)(3). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. 38 C.F.R § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable," but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R § 3.361(d)(1). The Veteran contends that he hurt his back when he slipped in August 1997 on water in a patio area at the VA Medical Center in Long Beach, California while there for treatment. August 1997 VA treatment records show that the Veteran fell in a patio area and that his complaints included back pain. X-rays showed marginal spurs in the lumbar spine, a small ossification, and vascular calcification. The Veteran had an evaluation with Dr. Roberts, a private orthopedic surgeon, in December 2000 at which he reported falling on water at a VA hospital, landing on his right knee, and immediately thereafter noticing pain in his low back. Dr. Roberts noted that a December 2000 EMG and nerve conduction study was consistent with L5-S1 motor radiculopathy. The Veteran complained of low back pain radiating down the back of the right lower extremity. X-rays showed degenerative disc disease and disc space narrowing. Dr. Roberts diagnosed the Veteran with a lumbar strain with radiculopathy, right lower extremity, and opined that the Veteran sustained significant injuries to the lumbar spine as a direct result of the August 1997 slip and fall accident. At August 2001 VA rehabilitation treatment the Veteran complained of low back pain since the August 1997 fall. An April 2002 report from a reevaluation with Dr. Roberts indicated an August 1997 injury but did not provide a further opinion on etiology. Subsequent VA treatment records show complaints of back pain without opinions on etiology, although November 2006 treatment records indicate a history of chronic back pain and that the Veteran then had radiating back pain after falling down steps. The Veteran had a VA examination in May 2013 at which he reported injuring his back in August 1997 and that he was told at that time that x-rays showed arthritis. The examiner opined that it was less likely as not that the Veteran's low back disability had its onset from the August 1997 slip and fall accident. The rationale was that an acute condition would result in objective signs such as ecchymoses, swelling, or fractures but the degenerative changes noted on the Veteran's x-rays were a chronic condition that would have been present prior to an acute fall. The examiner continued that degenerative arthritis is a common finding in the natural course of aging that will progress, while the Veteran's 1997 fall caused an acute soft tissue condition that resolved. The fall described in 1997 along with the treatment and findings do not support it being the source of a chronic aggravating factor of the Veteran's pre-existing back condition. The Board finds that the Veteran is not entitled to compensation under 38 U.S.C.A. § 1151 for a low back disability. There is a positive nexus opinion of record from Dr. Roberts. However, the Board cannot give it probative value because there was no rationale provided by Dr. Roberts as to why he felt that the Veteran sustained significant injuries to the lumbar spine as a result of the August 1997 slip and fall accident. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its reasoning" and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). In contrast, the May 2013 VA examiner analyzed the x-rays from the time of the August 1997 fall to conclude that the findings were caused by a chronic condition, arthritis, that is a common part of aging, rather than by an acute condition. Furthermore, the examiner concluded from the treatment records that the 1997 fall caused only an acute soft tissue condition that resolved. It played no role in the subsequent record of treatment. Therefore, the competent and probative opinion of record do not show that it is at least as likely as not that the Veteran's low back disability was caused or chronically aggravated by his August 1997 fall at a VA facility. While the Veteran has made statements to the effect that his low back disability is due to falling at a VA facility in August 1997, he is not competent to make such a determination. His statements on etiology are therefore not afforded probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Based on the foregoing, the Board finds that entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a low back disability is not warranted. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for a low back disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs