Citation Nr: 1343191 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-10 430 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of a fractured right leg due to a fall at a VA medical facility in November 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1954 to July 1957. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision in which the RO denied entitlement to what was then characterized as "service connection for residuals of a fractured right leg,"although the analysis addressed the matter of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of a fractured right leg. In November 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2011. In July 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. Also during the Board hearing, the Veteran submitted additional lay statement evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2013). In November 2013, the undersigned Veterans Law Judge advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. A review of the Virtual VA folder reveals additional evidence and argument pertinent to the present appeal. As a final preliminary matter, the Board notes the Veterans assertion, during the July 2013 hearing, that he is also seeking a rating in excess of 50 percent for service-connected generalized anxiety disorder (claimed as post-traumatic stress disorder(PTSD)., Although testimony on this matter was taken during the Board hearing, as the undersigned clearly indicated, this was subject to later verification that the matter was, in fact, in appellate status. However, closer inspection of the record reveals that the RO awarded service connection and an initial 50 percent rating for the disability in an April 2011, but that the Veteran did not even initiate an appeal of that decision with a timely-filed NOD-much less, perfect an appeal of the initial rating assigned; hence, the Board does not jurisdiction over the matter. Nonetheless, as the matter of a higher rating has now been raised, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Any additional disability from the Veteran's fall inside a VA medical facility in November 2006 was not the result of VA hospital care, medical or surgical treatment, or an examination rendered by VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151, for residuals of a fractured right leg due to a fall at a VA medical facility in November 2006, are not met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that although section 1151 claims are not service connection claims, disability benefits under that section are awarded as if service connected. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. With regard to the Veteran's claim for compensation under the provisions of 38 U.S.C.A. §1151, a September 2009 letter provided notice to the Veteran regarding the information and evidence needed to substantiate his claim before it was denied in a rating decision issued in October 2009. This letter also informed the Veteran of what information and evidence would be obtained by VA. In addition, this letter provided notice pertaining to the assignment of disability ratings and effective dates-in the event compensation, pursuant to 38 U.S.C.A. § 1151, was awarded-as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence, to include VA treatment records, have been associated with the paper claims file. Also of record and considered in connection with the claim is the transcript of the Board hearing, as well as various written statements made by the Veteran, and by his friend and representative on his behalf, The Board finds that no further RO action on this claim, prior to appellate consideration, is required. As discussed in detail below, no examination or opinion has been obtained in connection with this claim; however, on these facts, no such examination or opinion is required to fulfill the duty to assist the Veteran in this case. The Board also points out that the Veteran was provided full opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the July 2013 hearing, the undersigned noted the issue on appeal. Information was solicited regarding the event in question, and his subsequent medical care and problems. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the claim on appeal. As such, the Board finds that, consistent with Bryant, there has been compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. 38 U.S.C.A. § 1151 Claim The Veteran filed a claim August 14, 2009, requesting "service connection for residuals of a right leg fracture which occurred on November 2006 at Hines VA Medical Center (VAMC), due to careless, negligence of the facility." The Veteran indicated that he walked into the emergency entrance during the time when the floors had been mopped, and the floor was wet. He asserted that there were no signs posted stating "caution, wet floor." The Veteran stated that he slipped, fell, and broke his right leg. The day after the accident, the Veteran indicated that the fracture was examined and x-rayed. Thereafter, he was placed in a cast he wore for over 6 months approximately per his statements. The Veteran indicated that he was operated on at Jesse Brown VAMC in 2007, placed in another cast, and underwent physical therapy after the cast was removed. In 2008, the Veteran indicated that he was operated on again to remove the pins that were placed during the first operation, placed in a cast, and underwent therapy again. The Veteran indicated in his claim that he was still being treated for his right leg at Jesse Brown VAMC. In his November 2009 notice of disagreement, the Veteran disagreed with the RO's denial of his claim, and the conclusion that his fall was not the fault of the VA medical center. He indicated that he would request the police report that noted the incident that occurred. He again asserted that the fall was because the floors were wet and he slipped and fell. In his April 2011 substantive appeal, the Veteran stated that he wished to appeal the continued denial for service connection of his right leg fracture, claimed as due to his slipping on a wet floor at Hines VAMC. The Veteran indicated that he fractured his leg at the Hines VAMC on November 20, 2006, but was not aware that he had fractured it. On his way home, he began to experience chronic pain in his leg and had to use his left foot to drive. The Veteran returned to Hines on November 21, 2006 for emergency care. The Veteran indicated that he had a statement from the person who was with him when he fell at Hines VAMC. During the July 2013 Board hearing, the Veteran testified that he was with a friend, S.S., who witnessed his fall on the wet floor. No medical personnel or VAMC personnel witnessed his fall, according to the testimony. The Veteran was using a walker when he fell, and also when he returned to Hines VAMC the next day to follow up on his leg. The Veteran indicated that the doctor wanted to operate the day he went for follow up, but he had additional appointments at Jesse Brown VAMC for later in the week so he saw a doctor at Jesse Brown VAMC for his leg. In a statement submitted during the Board hearing, S.S. indicated that he and the Veteran went in to visit a friend [at the Hines VAMC.]. S.S. stated that they came outside, and there was a rug and a bare floor. The area was a little bit wet also, according to S.S. Per S.S., there was nothing to indicate that the place was in disarray. The Veteran was walking and he slipped according to S.S.'s statement. S.S. stated that he heard the Veteran's leg crack as he hit the floor. S.S. reported that the Veteran said at the time that he was fine. However, even on the ride home, about 35 miles, his leg became very swollen, according to S.S. There was absolutely nothing there to let them know the floor was wet, per S.S. He indicated that the Veteran was using a walker, and they are not secure. According to S.S., the Veteran lost his balance as he was pushing it. As for the medical evidence of record, VA treatment records dated prior to November 20, 2006 are silent for any mention of right leg fracture, residuals, or treatment. In addition, the claims file does not reflect treatment on November 20, 2006. An emergency department treatment note from Hines VAMC noted a chief complaint of right ankle/leg pain on November 21, 2006. The history of present illness indicated that the Veteran was a 73-year-old Jesse Brown VAMC patient who used a walker, who complained of a fall yesterday, secondary to right leg weakness. According to the history, the Veteran stated that all of a sudden his right leg felt weak and he fell over, landing on his right side. He indicated that he was with a friend at the time. Reportedly, there was no loss of consciousness, no head trauma, no chest pain, and no shortness of breath. The Veteran felt like his heart was beating hard, according to the history. The Veteran had continued right leg pain, primarily in the lateral part of his left thigh and upper calf. He indicated that his ankle was swollen the day before, but had now improved. The plan of care was to x-ray the Veteran's pelvis, right hip, right femur, right knee, and right ankle, and put him in a cast. An addendum note from the attending physician noted a positive distal fibula fracture. A subsequent VA operative note dated on November 30, 2006 indicates that the Veteran had a right lateral malleolus displaced fracture, and an open reduction and internal fixation of the lateral malleolus fracture was performed. Indications for the operation note that the Veteran was status post fall. VA treatment notes dated after November 2006 include few mentions of any residuals of the right leg fracture. No additional statements were provided about the incident when the fracture occurred. 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; 38 C.F.R. § 3.361. Under 38 U.S.C.A. § 1151, it is necessary to show that disability or death was the result of carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or an event not reasonably foreseeable. Id. To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately prior to the beginning of medical or surgical treatment to the Veteran's condition after such care has ceased. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). If a Veteran receives treatment by or through VA and sustains disability in addition to that for which he was being treated, VA compensation may be awarded as if the additional disability was service-connected. 38 U.S.C.A. § 1151. To qualify, the additional disability cannot be a result of the veteran's willful misconduct and must have been caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA. The proximate cause of the disability must be (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. Id. In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability; 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. 38 C.F.R. § 3.361. 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. 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). Generally, all patient care furnished by VA shall be carried out only with the full and informed consent of the patient or, in appropriate cases, a representative thereof. In order to give informed consent, the patient must have decision-making capacity and be able to communicate decisions concerning health care. 38 C.F.R. § 17.32(b). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). 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). Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that any claimed residuals of the reported November 20, 2006 slip and fall are not due to VA hospital care, medical or surgical treatment, or examination, and that, therefore, compensation benefits pursuant to 38 U.S.C.A. § 1151 are not warranted in this case. In order for an additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability 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. Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). The additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA. Id. at 101. In Loving, the Veteran was undergoing a VA examination when a metal ceiling grate fell on him. The Court held that the claimed knee injury resulting from the fallen grate was coincidental to the examination, and not caused by it, and concluded that the Veteran's claim for compensation under §1151 "lies beyond the ambit of section 1151." Id. at 100-101. In support of its conclusion in Loving, the Court made reference to the case of Sweitzer v. Brown, 5 Vet. App. 503 (1993), in which the Court affirmed a Board decision denying §1151 benefits for a Veteran who claimed that, while waiting for a VA examination, an unidentified patient in a motorized wheelchair struck him and knocked him to the ground. The Court, in Sweitzer, held that §1151 contemplated recovery only for disability resulting from the examination itself, and not for disability sustained while merely waiting in the building for an examination. In Sweitzer, the Court emphasized that §1151 "does not address disabilities that are merely coincidental with the receipt of VA treatment or which are not the result of actions by the VA." Id. at 505. The Court also noted that the legislative history reinforced the conclusion that compensation under §1151 is to be awarded only for an increase in disability that is the result of action by VA, and not from a coincidental event. Id.; see also VAOPGCPREC 7-97 (Jan. 29, 1997) (concluding that the provisions of §1151 effective prior to October 1, 1997, do not cover injuries which were merely incurred during or coincident with hospitalization but not as a result of hospitalization); see also VAOPGCPREC 1-99 (Feb. 16, 1999) (holding that the provisions of §1151, effective prior to October 1, 1997, authorize compensation only for disability resulting from treatment or examination itself at a VA facility, and not for disability due to such intervening causes as a sexual assault or another intentional tort). Although §1151 was amended in 1997 to add the element of fault, the intent of Congress to provide compensation for disability related to VA treatment or examination has not changed. Here, the record reflects that the Veteran had a positive distal fibula fracture according to emergency department notes from Hines VAMC on November 21, 2006, and subsequently underwent an open reduction and internal fixation of the lateral malleolus fracture. The Veteran asserted in his claim and other supporting statements that he fractured his leg due to a slip and fall at Hines VAMC on a wet floor November 20, 2006. The record does not reflect, nor is it alleged, that the Veteran's fall resulted from examination or treatment; rather, based on the Veteran's and his witness' statements, he slipped on a wet floor in the emergency department at Hines VAMC while on the premises visiting a friend November 20, 2006. The Board also notes that the Veteran reported that he fell due to right leg weakness when he sought treatment at Hines VAMC on November 21, 2006, and did not assert that he slipped and fell on a wet floor at the facility the day before. Hence, the Board finds that the injury did not result from actual VA medical treatment or examination, or from an incident that was merely coincident with treatment. Even if the fall occurred during an examination or while the Veteran was receiving other VA medical care, as was the situation in Loving, there is no evidence that he fell because of any VA treatment or examination. As described above, VA precedential law is clear that such an incident is "beyond the ambit of Section 1151", even where additional disability is incurred. Loving, 19 Vet. App. at 100-101. As for providing an examination and opinion, the Board finds that no such examination and opinion are required under the facts of this case. When adjudicating a 38 U.S.C.A. § 1151 compensation claim and determining whether an examination is warranted, "the Board must analyze the evidence of record to determine whether it indicates that the disability or symptoms may be associated with the hospital care, medical or surgical treatment, or examination furnished the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), or as part of an approved rehabilitation program under chapter 31 of title 38, or a program (known as a "compensated work therapy program") under 38 U.S.C. § 1718." Trafter v. Shinseki, 26 Vet. App. 267, 280 (2013); 38 U.S.C. §§ 1151(a)(1), (a)(2), 5103A(d)(2)(B); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the evidence-to include the Veteran's own statements and those of his friend, S.S., clearly indicates that the Veteran does not have current additional disability/symptoms that may be associated with hospital care, medical or surgical treatment, or examination furnished the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), or as part of an approved rehabilitation program under chapter 31 of title 38, or a program (know as a "compensated work therapy program") under 38 U.S.C. § 1718. As such, no examination or medical opinion was required to fulfill the duty to assist the Veteran. For all the foregoing reasons, the Board finds that the claim for compensation benefits pursuant to 38 U.S.C.A. § 1151, for residuals of a fractured right leg due to a fall at a VA medical facility in November 2006, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In denying this claim, the Board makes no determination as to whether the Veteran is able to recover against VA in a tort action. See, e.g., Federal Tort Claims Act, 28 U.S.C.A. §§1346(b), 2672-2680. ORDER The claim for compensation benefits pursuant to 38 U.S.C.A. § 1151, for residuals of a fractured right leg due to a fall at a VA medical facility in November 2006, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs