Citation Nr: 18151220 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-25 408 DATE: November 16, 2018 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for cervical pain is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for headaches is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left elbow disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right elbow disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left shoulder disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right shoulder disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left wrist disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right wrist disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for loss of arm strength is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for loss of hand strength is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a swallowing disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a respiratory disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for severe neuropathic pain is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a spinal cord disability is denied. FINDING OF FACT The Veteran does not have additional disability that resulted from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for cervical pain are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 2. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for headaches are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 3. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left elbow disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 4. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right elbow disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 5. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left shoulder disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 6. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right shoulder disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 7. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left wrist disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 8. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right wrist disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 9. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for loss of arm strength are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 10. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for loss of hand strength are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 11. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a swallowing disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 12. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a respiratory disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 13. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for severe neuropathic pain are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). 14. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a spinal cord disability are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from November 1975 to November 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. 1151 Eligibility Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or qualifying death of a Veteran in the same manner as if the additional disability or death were service connected. An additional disability or death qualifies for compensation if the disability or death was not the result of the Veteran’s willful misconduct and if 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 VA employee or in a VA facility, and the proximate cause of the disability or death was 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 an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012). The Veteran asserts that he developed cervical pain, headaches, a left elbow disability, a right elbow disability, a left shoulder disability, a right shoulder disability, a left wrist disability, a right wrist disability, loss of arm strength, loss of hand strength, a swallowing disability, a respiratory disability, severe neuropathic pain, and a spinal cord disability as a result of a fall during treatment at a VA facility in July 2011. The evidence shows the Veteran was admitted to the West Haven VA Medical Center in Connecticut in July 2011 to await a surgical procedure. During his admission, he was asked by nursing staff to transfer on his own without the use of a sliding board from his bed. VA treatment records indicate that as a result of that transfer, the Veteran fell and struck his head on a piece of furniture. The Veteran asserts that as a result of this fall, he developed progressively worsening pain and symptomatology related to his cervical spine, headaches, elbows, shoulders, wrists, loss of arm strength, loss of hand strength, swallowing, breathing, neuropathic pain, and spinal cord. A July 2011 VA treatment record indicates that the Veteran was sitting comfortably in his bed and denied any acute complaints immediately following his fall. It was noted that the Veteran bumped his head against the dresser while transferring from the bed. He denied any new complaints, and did not have headaches or dizziness. A handwritten statement by the Veteran indicates that he disagrees with the July 2011 VA treatment record. The Veteran stated that he was never asked about new symptoms following his fall, and that he was not comfortable in the bed at that time. An August 2011 VA treatment record indicates that the Veteran complained of headaches after striking his head against furniture during transfer in the hospital. No new neurological symptoms were noted. Another August 2011 VA treatment record, indicates that the Veteran complained of pain and pins and needles across his shoulders, in his neck, and that his arms and hands were getting weaker. He stated he could not function anymore. Upon examination, there were no focal abnormalities by history or symptoms found 1 month after the fall to suggest any intracranial injury or bleed. The treatment provider indicated that the fall may have caused new neck trauma. It was noted that the majority of the Veteran’s symptoms across his shoulders were consistent with syrinx, and no neurological issues were noted. Another August 2011 VA treatment record indicates that the Veteran complained of persistent pain in the neck and shoulders with various maneuvers, which he attributed to injury during recent hospitalization when he fell back on stretcher during transfer and struck his head against dresser. He indicated he worried about a damaged vertebra. Pain in the sternocleidomastoids was noted. Sleep disturbances as due to pain were noted. A September 2011 private treatment record from Dr. G.S., a private psychologist, indicated that the Veteran reported experiencing increased shooting and stabbing pains, as well as numbness and weakness, since a fall at the West Haven VA Medical Center. The Veteran further reported stabbing pain in his shoulders that radiated into his arms and torso, and insomnia as due to an inability to get comfortable. The Veteran reported being out of breath, and Dr. G.S. indicated that he witnessed the Veteran’s difficulty breathing several times during their encounter. A September 2011 VA treatment record indicates that that the Veteran was seen for a consultation for headaches, dizziness and neck pain, which have been going on for years, but which have been increased since having hit his head and neck against a dresser while he was being transferred from a bed to a stretcher in hospital. It was noted that the reported that since the event when he hit his head and neck in July, he had been having worsening pins and needles sensation in the back of his neck and shoulders. Further, the record indicates the Veteran stated that his arms had been feeling weaker since then. He complained of inability to move his neck, pain all over his body – abdomen, chest, groin, rectum; all of which have been worse since July. MRI imaging of his spine did not show any abnormalities. Another September 2011 VA treatment record indicates that the Veteran complained of additional pathology in his neck that resulted from his fall after PICC placement. It was noted that the Veteran hit the occiput of his head. The major concern was of an odontoid fracture. After imaging studies were conducted, it was shown that no odontoid fracture was found. Degenerative changes were noted in the spine. A November 2011 private neurosurgeon treatment record indicated that no additional pathology for the Veteran’s claimed disabilities were found, with the exception that the Veteran now had headaches. The treatment records indicate that the Veteran had incomplete sensation in his legs, but over the years he developed that neurogenic pain in multiple locations. In June 2015, a VA medical opinion was obtained to determine whether the Veteran had additional disability as a result of his July 2011 fall while admitted to the West Haven VA Medical Center. At that time, the examiner thoroughly reviewed the claims file and cited to all relevant evidence. The examiner found that while the Veteran clearly fell while admitted to the West Haven VA Medical Center, the Veteran did not have additional disability resulting from that fall. Specifically, the examiner opined that it was less likely as not that the Veteran’s had additional disability because of his July 26, 2011, fall. In that regard, the examiner noted that evaluations by multiple physicians (medical attending, spinal cord attending, ED attending, neurology attending, and neurosurgery attending) within one to two months following the incident failed to document any changes in the Veteran’s neurologic or neuroimaging that would be consistent with progression of disease due to an injury suffered in the documented July 26, 2011, fall. In fact, the examiner noted that multiple physicians had stated, or implied in their notes, that the Veteran’s symptoms and medical findings over time were compatible with complications related to his original traumatic injury and multiple subsequent surgical procedures. The examiner cited to an October 2011 neurosurgery note in which it was noted that the Veteran’s symptoms may have been exacerbated by possible trauma to the spinal cord during the fall, but the examiner specifically discounted the statement as it was speculative and did not even rise to the threshold of being at least 50 percent likely. To support discounting the October 2011 treatment note statement, the examiner noted that the fact that there were no changes in his examination or imaging findings following his fall argued more strongly against the fall having caused a permanent worsening. The examiner concluded that as such, the medical evidence did not support that the Veteran had additional disability related to his July 26, 2011, fall at the West Haven VA Medical Center. The examiner went on to state that there was also no evidence that any additional disability resulted from carelessness, negligence, lack of skill, or similar instance of fault on the part of VA; or that additional disability resulted from an event not reasonably foreseeable. The Board finds that the June 2015 VA medical opinion is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical opinion of record to the contrary. As such, the June 2015 medical opinion is the most probative evidence of record. The Board acknowledges that the Veteran has submitted several lay statements in support of his claim. Specifically, in his letters and statements, the Veteran has asserted that his claimed disabilities are as a result of a fall at the West Haven VA Medical Center in July 2011. Moreover, he has asserted that he was a known fall risk, and that the nursing staff negligently asked him to move from the bed to gurney without proper assistance. He contends that as a result of this fall, he developed the claimed disabilities. While the Veteran is competent to report observable symptoms, he is not competent to provide an opinion linking his claimed disabilities to the July 2011 fall at the VA Medical Center. An opinion of that nature would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to compensation pursuant to 38 U.S.C. § 1151 for disabilities of the neck, shoulder, elbow, and wrist; headaches; loss of arm strength; loss of hand strength; neuropathic pain; difficulty swallowing; respiratory disability; or spinal cord impairment is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel