Citation Nr: 21075391 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-24 039 DATE: December 20, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a lower back condition contended to be due to VA treatment from January 1, 2016, to December 1, 2017, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for boils (groin area and under arms) contended to be due to VA treatment from January 1, 2016, to December 1, 2017, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a right knee disability contended to be due to VA treatment from January 1, 2016, to December 1, 2017, is denied. REMANDED Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. During the Veteran's medical treatment from January 1, 2016, to December 1, 2017, the evidence of record does not indicate that the VA may have failed to timely diagnose or properly treat his low back condition or otherwise cause an additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or that there was an event not reasonably foreseeable. 2. After the Veteran's medical treatment from January 1, 2016, to December 1, 2017, he did not have an additional disability related to boils or the right knee for the purposes of compensation under 38 U.S.C. § 1151. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a lower back condition contended to be due to VA treatment from January 1, 2016, to December 1, 2017, have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for boils (groin area and under arms) contended to be due to VA treatment from January 1, 2016, to December 1, 2017, have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right knee disability contended to be due to VA treatment from January 1, 2016, to December 1, 2017, have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to June 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from August 2014 and March 2018 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office (RO). By way of background, the Board previously remanded these claims in October 2019 and May 2020 for additional development. The Board finds substantial compliance with the remand directives has been met pertaining to the Veteran's pending 38 U.S.C. § 1151 claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the Veteran's service connection claims, however, remand is again necessary to ensure substantial compliance with the October 2019 and May 2020 remand directives pertaining to obtaining the Veteran's military personnel records. The Board notes while the Veteran's military personnel records may be pertinent to the pending service connection claims, this Stegall violation does not impact the Veteran's pending 38 U.S.C. § 1151 claims as they are based upon treatment after separation from service and unrelated to active duty. As such, the Board will proceed to the merits of the 38 U.S.C. § 1151 claims. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1151 ELIGIBILITY Under VA laws and regulations, when a veteran suffers additional disability as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The veteran must show some degree of fault, and more specifically, that the proximate cause of his or her disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, 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 program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnosis and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). 1. Entitlement to compensation under 38 U.S.C. § 1151 for a lower back condition contended to be due to VA treatment from January 1, 2016, to December 1, 2017, is denied. The Veteran asserts that she is entitled to compensation for a lower back condition pursuant to 38 U.S.C. § 1151 for treatment at a VA facility from January 1, 2016, through December 1, 2017. The Board finds compensation under 38 U.S.C. § 1151 is not warranted. Turning to the relevant evidence of record, beginning in 2013, the Veteran's treatment records reference complaints of experiencing lower back pain. See December 2013 VA treatment records. Complaints of lower back pain continued through 2014. See March and October 2014 VA treatment records. Imaging in 2014 revealed no fracture, dislocation, spondylosis, or spondylolisthesis. See December 2014 VA treatment records. The Veteran filed a claim for Social Security benefits in 2014 based, in-part, on a lumbar spine impairment. See SSA records. The Veteran continued to endorse experiencing lower back pain in 2015. See September 2015 VA treatment records. In 2016, she continued to complain of lower back pain. See October 2016 VA treatment records. The Veteran was referred to an orthopedic surgeon for evaluation in September 2016. During the evaluation, she stated that she has experienced back pain that has been "going on for years on end." See September 2016 treatment records. Imaging obtained in November 2016 revealed degenerative disc disease of the lumbar spine. See November 2016 treatment records. Thereafter, the Veteran did not see the non-VA provider for a year until December 2017 when she again endorsed back pain. See December 2017 treatment records. The Board acknowledges that the Veteran has not been afforded a VA examination that specifically addresses her 1151 claim for a lower back condition but finds no such examination is required. Indeed, upon review, the Board finds the Veteran has not shown any indication that the proximate cause of her disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care including referral to a non-VA facility or was an event not reasonably foreseeable. Rather, treatment records reflect the Veteran continued to report symptoms of lower back pain from 2013 through 2016 prompting referral for an orthopedic surgery consult during which imaging was obtained revealing degenerative disc disease of the lumbar spine. Thereafter, treatment was recommended. Upon review, however, the Veteran has not contended or indicated that the VA treatment or referral during this time period resulted in an additional disability. Indeed, the Board again notes merely showing that a veteran received care, treatment, or examination and that she has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Indeed, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Here, the record lacks any evidence indicating the VA failed to timely diagnose or properly treat the Veteran's lower back condition or otherwise caused an additional low back disability. Additionally, there is no indication that any VA treatment was administered without the Veteran's implied consent. Moreover, in December 2017, VA requested from the Veteran additional evidence to support her claim including identifying the condition for which she was treated. In response, the Veteran referenced treatment records from October 2016 to November 2017 and cited the relevant condition as "MRI Back." See December 2017 Statement. To date, the Veteran has not identified any additional disability from which she suffers or cited specific treatment on the part of the VA, including referral, that is contended to be the cause of said additional disability. In fact, the Veteran has never provided insight as to what her contentions are or why she believes she is entitled to compensation for a back condition under 38 U.S.C. § 1151 and the record does not otherwise indicate. The Board notes the burden is on the claimant to demonstrate entitlement to benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009). Here, despite being informed of the additional information necessary to substantiate her claim of entitlement to compensation under 38 U.S.C. § 1151 for a low back disability, the Veteran failed to provide the necessary information. Therefore, based on the evidence of record, the Board finds a VA medical opinion is not necessary to decide this claim as the evidence of record does not indicate there may be a causal connection between a current low back disability and VA treatment. See Trafter v. Shinseki, 26 Vet. App. 267, 277; see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i)(C); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board also notes, as an aside, the Veteran filed a claim for compensation under 38 U.S.C. § 1151 for a low back disability. As part of her notice of disagreement (NOD), however, she checked "service connection" as the area of disagreement. Claims for service connection are separate and distinct from claims for compensation under 38 U.S.C. § 1151. Anderson v. Principi, 18 Vet. App. 371 (2004) (holding there is a legal distinction between filing a claim for service connection for a disability pursuant to 38 U.S.C. § 1110 and a claim for compensation derived from a grant of compensation pursuant to 38 U.S.C. § 1151); Trafter, 26 Vet. App. at 285 (finding the Court's case law has consistently distinguished claims made pursuant to section 1151 and claims for disability compensation pursuant to section 1110). As such, only the Veteran's claim for compensation under 38 U.S.C. § 1151 is properly before the Board. Should the Veteran wish to file a claim for benefits under a service connection theory of entitlement, she is invited to do so in accordance with 38 C.F.R. § 3.155. Thus, absent credible evidence indicating the Veteran developed an additional lower back disability that was caused by her VA treatment from January 1, 2016, through December 1, 2017, or VA failed to timely diagnose or properly treat the lower back condition, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to compensation under 38 U.S.C. § 1151 for boils (groin area and under arms) contended to be due to VA treatment from January 1, 2016, to December 1, 2017, is denied. 3. Entitlement to compensation under 38 U.S.C. § 1151 for a right knee disability contended to be due to VA treatment from January 1, 2016, to December 1, 2017, is denied. The Veteran also asserts that she is entitled to compensation for boils and a right knee disability pursuant to 38 U.S.C. § 1151 for treatment at a VA facility from January 1, 2016, through December 1, 2017. The Board finds compensation under 38 U.S.C. § 1151 is not warranted for either disability. Regarding boils, in 2013, the Veteran was treated for a boil in the genital area that was assessed as a skin lesion probably from folliculitis. See July 2013 VA treatment records. Nearly a month later, she again endorsed "getting boils" on the genital area for a month. In March 2016, a dermatology consult was placed for a "nonspecific skin eruption." See March 2016 VA treatment records. In July 2016, the Veteran was noted to have elevated skin at the left axillary area and lesions along the symphysis pubis. See July 2016 VA treatment records. Treatment records then in 2018 through 2020 reference abscesses and skin lesions including in the genital area and under arm. Regarding the right knee, treatment records beginning in 2013 referenced right knee pain. See October 2013 VA treatment records. Imaging in 2014 revealed no meniscal or ligamentous tear, tiny PCL ganglion, and questionable mild chronic patellar tendinosis. See February 2014 VA treatment records. The Veteran continued to endorse right knee pain in 2014 and 2015 stating that it is so severe at times, she cannot sleep. In 2015, imaging revealed mild degenerative medial compartmental narrowing in the right knee. See June 2015 VA treatment records. The Veteran stated that she has had right knee pain "for years." See September 2015 VA treatment records. During a 2016 VA examination for service connection for a right knee disability, the Veteran was noted to have right knee pain and degenerative arthritis with a diagnosis of 2013. See May 2016 VA examination. In 2016, treatment records referenced that the Veteran continued to endorse right knee pain and received injections. See March 2016 VA treatment records. Also, in 2016, she stated that she has had right knee pain "going on for years on end." See September 2016 treatment records. Treatment records referenced atrophy of the right quadricep. See September 2016 treatment records. In 2017, the Veteran reported worsening of her right knee symptoms including giving way and increased pain. See June and August 2017 VA treatment records. The Board acknowledges that the Veteran has not been afforded a VA examination that specifically addresses her 38 U.S.C. § 1151 claim for boils or a right knee condition but finds no such examination is required. Indeed, upon review, the Veteran has not shown any indication that the proximate cause of her disabilities was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. Rather, treatment records reflect the Veteran reported symptoms of both conditions prior to 2016 and continuing thereafter. Regarding boils, the evidence of record clearly establishes that the onset occurred prior to January 1, 2016. Indeed, treatment records reference complaints of and treatment for boils as early as 2013. Regarding the right knee, treatment records reference complaints of pain in 2013 with a diagnosis of arthritis in 2015. Moreover, upon review, the Veteran has not contended or indicated that the VA treatment during this time period resulted in an additional boils or right knee disability. The Board notes hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Here, the record lacks any evidence indicating the VA failed to timely diagnose or properly treat the Veteran's boils or right knee condition or otherwise cause an additional disability. Additionally, there is no indication that any VA treatment was administered without the Veteran's implied consent. Of note, in December 2017, VA requested from the Veteran additional evidence to support her claim including identifying the conditions for which she was treated. In response, the Veteran referenced treatment records from October 2016 to November 2017 and cited the relevant condition as "MRI both knee," "right knee had water in service" and "boils: groin area and under arms." See December 2017 Statement. To date, the Veteran has not identified any additional disabilities from which she suffers or cited specific treatment on the part of the VA that is contended to be the cause of said additional disabilities. In fact, the Veteran has never provided insight as to what her contentions are or why she believes she is entitled to compensation for boils or a right knee disability under 38 U.S.C. § 1151 and the record does not otherwise indicate. The Board notes the burden is on the claimant to demonstrate entitlement to benefits. See Skoczen, 564 F.3d at 1324. Here, despite being informed of the additional information necessary to substantiate the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for boils and a right knee disability, the Veteran failed to provide the necessary information. Therefore, based on the evidence of record, the Board finds a VA medical opinion is not necessary to decide this claim as the evidence of record does not indicate there may be a causal connection between a current boil or right knee disability and VA treatment. See Trafter, 26 Vet. App. at 277; see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i)(C); McLendon, 20 Vet. App. at 81. Regarding boils, the Board notes the Veteran filed a claim for compensation under 38 U.S.C. § 1151. As part of her NOD, however, she checked "service connection" as the area of disagreement. Claims for service connection are separate and distinct from claims for compensation under 38 U.S.C. § 1151. Anderson, 18 Vet. App. 371; Trafter, 26 Vet. App. at 285. Thus, only the issue of compensation under 38 U.S.C. § 1151 for boils is properly before the Board. Should the Veteran wish to file a service connection claim for boils, she is invited to do so in accordance with 38 C.F.R. § 3.155. Thus, absent credible evidence indicating the Veteran developed additional boils or a right knee disability that was caused by her VA treatment from January 1, 2016, through December 1, 2017, the claims for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claims, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Service connection for a heart condition is remanded. 2. Service connection for a left knee disability is remanded. 3. Service connection for a right knee disability is remanded. As part of the Board's October 2019 decision, the RO was directed to ensure that the Veteran's complete military personnel records were associated with the claims file. Within the Board's May 2020 decision, it was noted that the evidence of record did not show that the RO attempted to obtain the Veteran's military personnel records, as directed by the October 2019 Board remand. To date, the evidence of record still does not show that the RO attempted to obtain the Veteran's military personnel records. As such, these claims are remanded to ensure substantial compliance with the Board's previous remand directives. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Request complete service personnel records for the Veteran's period of active duty service. If the RO concludes, after continued efforts to obtain said records, that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA shall provide the Veteran with oral or written notice of the fact. Said notice shall be documented in the claims file and specifically include: (a) a notification to the claimant of the specific records that VA is unable to obtain; (b) an explanation of the efforts VA has made to obtain that evidence; and (c) a description of any further action VA will take with respect to the Veteran's claims. The claimant must then be given an opportunity to respond. 2. After the above development, and any other development deemed necessary, readjudicate the claims. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.