Citation Nr: 18154687 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-21 038A DATE: November 30, 2018 ORDER Compensation pursuant to 38 U.S.C. § 1151 for a traumatic brain injury and right shoulder disability as a result of a fall sustained at the New Orleans VA Medical Center (VAMC) on August 17, 2005 is denied. REMANDED The issue of entitlement to service connection for a left hip disability, to include necrosis, is remanded. FINDING OF FACT There is insufficient probative evidence of record establishing the Veteran suffered a fall at the New Orleans VAMC on August 17, 2005 causing injuries to his head and right shoulder. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for a traumatic brain injury and right shoulder disability as a result of a fall sustained at the New Orleans VAMC on August 17, 2005 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran retired from service with the United States Navy after serving on active duty from January 1963 to April 1970 and February 1984 to October 1993. 1. The issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for a traumatic brain injury and right shoulder disability as a result of a fall sustained at the New Orleans VAMC on August 17, 2005. The Veteran contends that he injured himself at the New Orleans VAMC on August 17, 2005. See November 2008 Letter from the Veteran (the Veteran stated he injured himself on August 17, 2008, but clarified it was two weeks prior to hurricane Katrina, which occurred at the end of August 2005). More specifically, the Veteran asserts that he sustained injuries to his head and right shoulder when he decided to take the stairs following a group counseling session for post-traumatic stress disorder. While he was descending the stairs, his legs gave out and he tumbled down the stairs. He first hit his head and then his right shoulder on the steps. Initially, he did not realize the extent of his injuries. He was taken to the emergency room and treated by Dr. P., who ordered an x-ray examination as well as a magnetic resonance imaging (MRI). September 2011 Statement in Support of Claim; November 2011 Letter from the Veteran. While the x-ray examination was conducted, the MRI was never completed due to the hurricane. According to him, because of the hurricane his x-ray examination report and all related records were destroyed. Compensation may be paid for a qualifying additional disability in the same manner as if the disability were service-connected in accordance with 38 U.S.C. § 1151. A qualifying additional disability must not have been the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361. Further, it must have been caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the VA, by a VA employee or in a VA facility and the proximate cause of the disability was due to carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(d). A review the Veteran’s VA treatment records confirms that he attended a Chronic Pain Management Group session at the New Orleans VAMC on August 17, 2005. August 17, 2005 VA Psychology Note. Although the medical evidence of record document his numerous reports of falls, it is silent as to any treatment at an emergency room or any other medical facility, whether at the VA or through a private provider, for a fall resulting in a head and right shoulder injuries on August 17, 2005 or in the days immediately following. For instance, an April 2005 VA Nursing Telephone Triage Note documented the Veteran’s complaint of right shoulder pain since falling out of a car one week before. April 2005 VA Nursing Telephone Triage Note; see also April 2005 VA Primary Care Physician Note (reported falling on his right shoulder the Friday before and receiving treatment at R.W.H.); April 2015 VA Imaging Study (noted history of a fall on April 8, 2005). At that time, he also indicated he hit his head during the fall. April 2005 VA Nursing Telephone Triage Note. Thereafter, an October 2005 VA Primary Care Note recorded the Veteran’s report of falling on his right shoulder in June that year. In December 2005, the Veteran stated he sustained head trauma after falling two weeks prior. December 2005 R.W.M.C. Radiology Consultation. That same month, in a December 2005 letter to the Department of Labor’s Office of Worker’s Compensation, the Veteran described two incidents during which his leg gave way and he fell. The first, he stated occurred while getting into a van at church. December 2005 Letter from the Veteran. As a result of this fall, he relayed that he sustained a right rotator cuff tear. The second, he stated occurred at a VA hospital. During this incident, he reported he was going to the parking lot when he fell. Due to this fall, he averred that he sustained an injury to his left rotator cuff while attempting to protect his head. Subsequently, in February 2006, the Veteran relayed suffering from a recent fall, which led to a rotator cuff tear which required surgery in January 2006. February 2006 VA Physical Medicine Rehab Initial Evaluation Note. Unfortunately, he did not indicate when or where this fall occurred. Notably, at that time, he relayed that he fell all the time hitting his head and shoulder because he had equilibrium problems. A review of the January 2006 R.W.M.C. Operative Report confirms the Veteran underwent surgery due to a right rotator cuff tear as well as right subacromial impingement. However, at that time, the treatment provider indicated he was suffering from pain after a history of injury while engaging in postal work many years before. The January 2006 R.W.M.C. Operative Report is negative for any reports of recent falls. Later in March 2006, the Veteran described experiencing a fall in April 2005 and December 2005. March 2006 Dr. C.B. Treatment Note. At that time, while he stated he had some vision problems just before hurricane Katrina, he did not report a fall or an injury to his head or shoulder just before hurricane Katrina. Notwithstanding the Veteran’s claim the x-ray examination report and all records related to the August 17, 2005 injury were destroyed, the Board observes there are VA treatment records associated with the claims file from August 17, 2005 as well as from August 23, 2005. See August 23, 2005 VA Psychology Note. While he avows that an x-ray examination and MRI were ordered following the fall on August 17, 2005, his VA treatment records only disclose a computed tomography of the shoulder and MRI of the brain were obtained just prior to August 17, 2005. See August 16, 2005 VA Telephone Encounter. There is no reference to a Dr. P. among his VA treatment records whatsoever. The Board acknowledges the Veteran has not explicitly indicated whether Dr. P. was a VA treatment provider or a private treatment provider. The Board notes no requests for medical records from a private treatment provider by the same name have been made. Nevertheless, given his unequivocal assertion that all his x-ray examination report and all related records were destroyed, the Board finds a remand would be unproductive. Given the inconsistencies in the Veteran’s own lay statements and the inconsistencies between his lay statements and the other evidence of record outlined above, the Board is unable to accord his claim that he suffered a fall on August 17, 2005 at the New Orleans VAMC any probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Similarly, while the Veteran’s wife, M.B., submitted a Buddy Statement in July 2013 corroborating his assertion that he suffered a fall in August 2005 at the New Orleans VAMC, the Board is unable to accord her lay statements any probative value because there is no indication she was present for the incident and her lay statements are inconsistent with the Veteran’s other lay statements of record and with the other evidence of record detailed above. July 2013 Statement in Support of Claim; see also Madden, supra; Caluza, supra. Aside from the Veteran’s and his wife’s lay statements, there is no evidence of record demonstrating or suggesting that he suffered a fall on August 17, 2005 at the New Orleans VAMC, much less that he suffered a fall resulting in injuries to his head and right shoulder. Even if the Board accepted the Veteran’s claim that he suffered a fall on August 17, 2005 at the New Orleans VAMC, at no time did he ascribe any fault to the VA leading to his fall despite submitting multiple statements describing the incident. Cf. January 2008 Letter from the Veteran; November 2008 Letter from the Veteran; December 2008 Letter from the Veteran; September 2011 Statement in Support of Claim; November 2011 Letter from the Veteran. Significantly, each time, he either relayed that his leg just went limp or gave out leading to the fall. Moreover, the evidence of record suggests he had a history of falls well before August 2005. The Board need not consider whether the Veteran’s claimed fall was not reasonably foreseeable because his claim does not involve any treatment provided by a VA healthcare provider. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d). An event not reasonably foreseeable, is an event that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(b). Considering the above, the Board finds the preponderance of the evidence weighs against his claim for compensation pursuant to 38 U.S.C. § 1151 for a traumatic brain injury and right shoulder disability as a result of a fall sustained at the New Orleans VAMC on August 17, 2005. Cf. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. § 3.102 (2017); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). REASONS FOR REMAND 1. The issue of entitlement to service connection for a left hip disability, to include necrosis, is remanded. The Veteran contends that he has necrosis of the left hip, which stems from his active duty service. Although a review of the claims file is negative for any diagnosis of necrosis of the left hip, the Board notes he has been diagnosed with arthralgia of the left hip and has continued to complain of left hip pain during the pendency of this appeal. October 2004 VA Primary Care Physician Note; February 2013 VA Primary Care Note; see also Saunders v. Wilkie, 886 F.3d 1356 (2018). A review of his service treatment records reveals complaints of left hip and buttock pain and tenderness in service. See September 1985 Chronological Record of Medical Care. To date, he has not been afforded a VA examination with respect to this claim. As the McLendon elements necessitating a VA examination have been met, a remand is necessary to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Contact the Veteran to determine if there are any relevant, outstanding private treatment records. If so, undertake all appropriate development necessary to obtain a copy of these records from each private treatment provider and/or facility identified by him. 2. Obtain all relevant, outstanding VA treatment records. 3. Once the first and second requests have been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed left hip disability. After reviewing the record, the examiner should: (a.) Identify all current and prior diagnoses of a left hip condition, to include arthralgia and necrosis. (b.) Reconcile all prior diagnoses of a left hip condition with the current findings. If a prior diagnosis cannot be reconciled with the current findings, explain why. (c.) As to each current diagnosis and prior diagnosis that cannot be reconciled with the current findings, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to the Veteran’s active duty service, to include his complaints of left hip and buttock pain and tenderness in service in September 1985, and explain why. (d.) If there is no current diagnosis, but there is evidence of pain with limitation of motion or function, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to the Veteran’s active duty service, to include his complaints of left hip and buttock pain and tenderness in service in September 1985, and explain why. (e.) In rendering an opinion, the examiner should consider and weigh the Veteran’s relevant lay statements of record. 4. Once the above requests have been completed, to the extent possible, readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel