Citation Nr: 1802330 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-63 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for fractured ribs. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for punctured lungs. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1954 to February 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was held before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is of record. The undersigned Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence; to date, no additional evidence has been submitted by the Veteran or his representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT The preponderance of the competent and credible evidence of record shows that the hospital care given by a VAMC to the Veteran resulted in injury and additional disability, namely fractured ribs and punctured lungs, and the proximate cause of the disability was negligence in furnishing the hospital care. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a punctured lung and broken ribs injury, have been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Section 1151 compensation is awarded for qualifying additional disability in the same manner as if such additional disability were service-connected. The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). For purposes of establishing entitlement to section 1151 benefits, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and: (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (a) First, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). VA considers each body part or system separately. The additional disability must not be the result of the Veteran's willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). In this case, the Veteran was treated for pneumothorax and fractured ribs after his fall. See December 2014 VA treatment record. Thus, the Board finds that there was an additional disability. Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA. 38 C.F.R. § 3.361 (c). In Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013), the Federal Circuit found that there was no question that the Veteran's injury met section 1151's second causation element since it was proximately caused by VA's failure to properly install and maintain the grab bar in the VA medical facility's restroom. The sole remaining issue was whether his injury was "caused" by the medical treatment or hospital care he received from VA. After reviewing the language of the statute and its legislative history, the Federal Circuit noted that there was nothing in the plain language of section 1151 that required a veteran's injury to be "directly" caused by the "actual provision" of medical care by VA personnel. Instead, the statute requires only a "causal connection," which includes injuries that occur in a VA facility as a result of VA's negligence. Additionally, the Federal Circuit stated that if Congress had wanted to impose a requirement that the "direct" cause of a veteran's injury must be the "actual" medical treatment provided by VA personnel, it could readily have inserted such a requirement into the statutory text. In this case, there is evidence that the Veteran's additional disabilities occurred in a VA facility as a result of VA's negligence. In that regard, the record reflects that the Veteran was at the Temple VA health care system to pick up a scooter that he uses to ambulate when he fell. See December 2014 VA treatment record. As discussed below, the record reflects that the Veteran fell after he slipped on water. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be 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 that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). In this case, there is evidence that the current disability was proximately caused by the negligence of VA. In that regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran's punctured lung and fracture ribs were proximately caused negligence of VA. The law is clear; pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (2012). Although there is some evidence against the claim, insofar as the Veteran appears to have given some inconsistent and contradictory theories regarding the cause of his fall, a December 2014 VA treatment note supports the Veteran's initial contention that he slipped on water and fell on his left side. In that regard, the treatment note stated that the Veteran's fall was witnessed by a bystander who stated that the Veteran did slip on water and fell on his left side. That same note provided further support to help explain the Veteran's somewhat inconsistent statements. In that regard, the note indicated that the Veteran did not remember the details of his fall. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran's lung and rib disabilities were proximately caused by the negligence of VA insofar as he slipped and fell on water causing his injuries. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, entitlement to compensation under the provisions of 38 U.S.C. § 1151 for fractured ribs and punctured lungs is granted. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for fractured ribs is granted. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for punctured lungs is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs