Citation Nr: A21017015 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 200817-104067 DATE: October 20, 2021 REMANDED Compensation pursuant to 38 U.S.C. § 1151 for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to October 1973. His claim for a cervical spine disability was denied in a November 2019 rating decision. In appealing the determination to the Board of Veterans' Appeals (Board), he requested the hearing review option. This allows for consideration of evidence of record at the time of the rating decision as well as the evidence submitted at or within 90 days following the hearing, which was before the undersigned in May 2021. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302. Cervical Spine Disability In the modernized appeal system, the Board may remand an issue back to the agency of original jurisdiction (AOJ) for correction of errors made in satisfying a regulatory or statutory duty if correction has a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a). The duty to notify claimants of a decision includes, among other things, a summary of the applicable laws and regulations. 38 U.S.C. § 5104. 38 U.S.C. § 1151 (benefits for persons disability by treatment or vocational rehabilitation), along with its corresponding regulation 38 C.F.R. § 3.361 (benefits under 38 U.S.C. § 1151 for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program), concerns compensation for disability attributable to VA. The Veteran filed an "1151 claim" for a cervical spine condition, contending it is the result of an injury he sustained at an December 2018 eye appointment with the VA in Portland, Oregon. He specifically indicates he was lying back in the examination chair when the head rest suddenly dropped. This caused his head to fall backward with a snap, which produced pain and tightness. His eye doctor tried to fix the head rest, but it suddenly dropped twice more before the Veteran was switched to another examination chair in another room. VA treatment records document the Veteran's eye appointment in Portland in December 2018. While no mention was made of the examination chair head rest dropping at that appointment, a June 2021 email from the chief of the Portland VA eye department acknowledged such has occurred. J.L., another Veteran who receives eye care there, also indicated in a July 2021 letter that it happened to him in August 2015. A January 2019 private treatment record further reflects the Veteran's complaint of left upper back and neck pain which onset 3 weeks prior when his head snapped back while he was sitting in a chair for a VA examination. The assessments made were segmental and somatic dysfunction of the thoracic and cervical regions. The Veteran continued to receive private treatment through May 2019. There are no more recent treatment records, whether VA or private, which he explains by conveying his reluctance to seek care during the coronavirus pandemic. At the outset, the Board observes that the Veteran's competence to recount all of the aforementioned is undisputed. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (individuals are competent to relate personal experiences). The Board also finds him credible in reporting an examination chair head rest malfunction and symptoms which began immediately thereafter and have continued ever since. Indeed, these reports have been made consistently. They are in agreement with the other evidence. The Veteran's veracity finally was patent at the hearing. In the November 2019 rating decision, however, the AOJ noted being unable to verify the examination chair head rest malfunction and consequent injury. The 1151 claim thus implicitly was denied. Yet there was no discussion of the criteria for such claims (additional disability, fault on the part of VA, an event not reasonably foreseeable). 38 U.S.C. § 1151 and 38 C.F.R. § 3.361 additionally were not even cited, much less summarized, as applicable in the November 2019 rating decision. In fact, no statutes at all were referenced. The only applicable regulation summarized was 38 C.F.R. § 3.303 (principles relating to service connection), while 38 C.F.R. § 3.304 (direct service connection; wartime and peacetime) was cited but not summarized. The Veteran's claim correspondingly was characterized as one of service connection and denied. The Board, in conclusion, corrects this obvious error by recharacterizing the claim as one for compensation pursuant to 38 U.S.C. § 1151 herein. However, the Board cannot correct the underlying error of failing to summarize the applicable laws and regulations (and, thus, the failure to discuss the relevant criteria for 1151 claims). A remand is needed for the AOJ to undertake this correction. (Continued on the next page) This matter is REMANDED for the following action: Adjudicate the Veteran's claim as one for compensation pursuant to 38 U.S.C. § 1151 for a cervical spine disability. To comply with 38 U.S.C. § 5104, notice of the decision made must include a summary of the applicable laws and regulations. 38 U.S.C. § 1151 and its corresponding regulation 38 C.F.R. § 3.361, at a minimum, therefore must be summarized. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becker 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.