Citation Nr: 20021625 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-51 100 DATE: March 26, 2020 ORDER Compensation benefits under 38 U.S.C. § 1151 for an additional lumbar spine disability are denied. FINDING OF FACT The weight of the competent and probative evidence is against finding the Veteran manifested an additional lumbar spine disability due to treatment at a VA medical facility in June 2014. CONCLUSION OF LAW The criteria for compensation benefits under 38 U.S.C. § 1151 for an additional lumbar spine disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to December 1972 and July 1975 to March 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. Under § 1151, when a veteran suffers a qualifying additional disability or death as the result of hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished by VA, compensation will be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The additional disability or death must have been directly caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. 38 C.F.R. § 3.361(c), (d). This standard will be met if VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or if VA furnished treatment, care, or examination without the informed consent of the veteran. 38 C.F.R. § 3.361(d)(1). Alternatively, compensation will be awarded if additional disability or death was directly caused by an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). The Veteran contends that compensation benefits are warranted under 38 U.S.C. § 1151 sustaining a separate disability to his low back after being dropped on a bed rail during a bed transfer performed by a single male nurse at a VA hospital in June 2014. The Veteran claims additional disability in the form of constant lower back pain that makes him unable to walk or sit without pain for more than 10 to 15 minutes, obtain employment, and requires constant use of an electric wheelchair. January 2020, Hearing transcript. Initially, the Board notes that a claim under 38 U.S.C. § 1151 is merely a separate theory of entitlement to compensation, and the Veteran’s service-connected disabilities have been found to warrant a total rating due to individual unemployability. Further, the Veteran’s multilevel degenerative disc disease, previously rated as low back degenerative changes, are already service connected. Prior to June 2014, the claims file contains numerous complaints from the Veteran of chronic low back pain and difficulty walking. VA examination notes the Veteran’s complaints of constant and worsening low back pain since he sustained an in-service injury to his low back from being accidently hit with a steel beam. VA examinations dated June 1985, October 1992, and December 2008. In March 2005, the Veteran complained of low back pain with pain intensity greater than 10. In July 2013, the Veteran complained of severe back pain, crying, and stated he could not walk. Prior to 2014, the Veteran also received various low back pain treatments to include pain medications, ice packs, physical therapy, acupuncture, and a back brace. See VA treatment records dated June 1986 through July 2013. In June 2015, a VA examiner reviewed imaging of the Veteran’s spine which showed no progression of the disease of the back. The examiner also noted neurologist and others indicated the Veteran complained of severe episodes of back pain similar to that described in the June 2014 progress notes on a weekly basis. The examiner then opined it is less likely than not that there was a permanent increase in disability based on the incident. June 2015, VA examination. In light of the above, the Board finds that the weight of the competent and probative evidence is against finding the Veteran manifested an additional lumbar spine disability due to treatment at a VA medical facility in June 2014. The Board acknowledges lay testimony that the Veteran’s symptoms include low back pain and difficulty walking after being dropped at a VA medical facility in June 2014; however, the Veteran’s current service-connected back disability includes compensation for residuals of and treatment for the Veteran’s thoracic and lumbar spine, as well as pain or mobility issues. Stated differently, the Veteran is seeking entitlement to a benefit of which he is already in receipt. Accordingly, the claim of compensation under 38 U.S.C. § 1151 due to treatment at a VA medical facility in June 2014 is not warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.