Citation Nr: 18140028
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 15-43 624
DATE:	October 2, 2018
ORDER
Entitlement to compensation under 38 U.S.C. § 1151 for residuals of surgery for a left distal radius intra-articular fracture, claimed as due to VA treatment in July 2011, is dismissed as moot.
FINDING OF FACT
The recent grant of service connection for residuals of surgery for a left distal radius intra-articular fracture, claimed as due to VA treatment in July 2011, renders moot the Veteran’s claim for compensation under 38 U.S.C. § 1151. 
CONCLUSION OF LAW
The Veteran’s claim for compensation under 38 U.S.C. § 1151 is moot. 38 U.S.C. §§ 1151, 5107, 7104, 7105; 38 C.F.R. §§ 3.361, 20.1100; Hornick v. Shinseki, 24 Vet. App. 50 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1973 to December 1974.  He testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017; a copy of the transcript of that hearing is of record. 
Entitlement to compensation under 38 U.S.C.A § 1151 for residuals of surgery for a left distal radius intra-articular fracture, claimed as due to VA treatment in July 2011, is moot. 
The Veteran seeks entitlement to compensation under the provisions of 38 U.S.C. § 1151 for alleged additional disability resulting from treatment provided by VA in July 2011.
Under the current provisions of 38 U.S.C. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. 
From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable.
The Veteran asserts that he sought treatment at his local VA medical center for a left wrist fracture on July 4, 2011 and should have undergone left wrist surgery on that date; instead, he did not undergo surgery until July 25, 2011.  His contention is that he currently experiences degenerative changes in his left wrist that constitute additional disability directly attributable to the purported delay in undergoing left wrist surgery.  
The Board notes, however, that the RO in a March 2018 rating decision granted service connection for residuals of a left distal radius intra-articular fracture, i.e., the exact same condition currently claimed pursuant to 38 U.S.C. § 1151.  Moreover, compensation for service-connected disability is a greater benefit than compensation under 38 U.S.C. § 1151.  See Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010).  Thus, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for the left wrist fracture residuals because if any additional disability was incurred from VA medical treatment thereof, he would already be compensated for such residuals.  See 38 U.S.C. §§ 7104, 7105(d)(5).  Simply put, due to the grant of service connection for residuals of a left distal radius intra-articular fracture, the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for that same left wrist disability is moot and is dismissed.
 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Christopher M. Collins, Associate Counsel