Citation Nr: 21008568 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-42 264 DATE: February 17, 2021 ORDER Compensation for right trochanter fracture under 38 U.S.C. § 1151 is denied. Compensation for a thoracolumbar spine disorder under 38 U.S.C. § 1151 is denied. Compensation for a cervical spine disorder under 38 U.S.C. § 1151 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 1979 to May 1981. 2. The Veteran did not sustain a permanent, chronic, additional disability, to include right trochanter fracture, thoracolumbar spine disorder, or cervical spine disorder, as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation pursuant to 38 U.S.C. § 1151 for right trochanter fracture have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5121A (2012); 38 C.F.R. § 3.361 (2020). 2. The criteria for compensation pursuant to 38 U.S.C. § 1151 for thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5121A (2012); 38 C.F.R. § 3.361 (2020). 3. The criteria for compensation pursuant to 38 U.S.C. § 1151 for cervical spine disorder have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5121A (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When the case was previously before the Board of Veterans’ Appeals (Board) in April 2019, it was remanded for additional development. There has been substantial compliance with the remand’s directives and the Board will proceed with the appeal. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). Turning to the relevant laws and regulations, a veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the appellant’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the appellant under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. In determining whether a veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the condition after the care or treatment is rendered. The additional disability or death must not have been due to the veteran’s failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that he or she has an additional disability or died does not establish cause. 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the appellant’s or, in appropriate cases, the appellant’s representative’s informed consent. The second prong of proximate causation requires that the appellant’s additional disability or death be an event that was not reasonably foreseeable. This fact is 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 § C.F.R. § 3.361(d)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Turning to the evidence, the Veteran underwent a right hip total arthroplasty revision surgery on April 10, 2013, at a private hospital. No fractures or other abnormalities were noted on the surgical report and the surgery was unremarkable. He was seen by VA for post-operative rehabilitation service. The Veteran claims that he experienced additional disabilities, namely a fracture of the right trochanter, a thoracolumbar spine disorder, and a cervical spine disorder, as a result of VA care on April 28, 2013. Specifically, he alleges that due to the negligence and lack of proper care of a VA hospital employee/volunteer who was pushing his wheelchair, the wheelchair hit uneven pavement, resulting in injury. The Board will accept for purposes of this decision, that he was under VA care at the time of the wheelchair incident. The record reflects several different descriptions of the April 28, 2013, wheelchair incident. A medical note recorded contemporaneous with the incident, reported the Veteran’s reflections as follows: Earlier today when I was coming back from church, the escort asked if I would like to go outside. Well we hit a bump of unlevel sidewalk and my right pedal hit it and my leg jarred. I felt it from my [heel] to my hip. I just think it should be documented in case I have any trouble with it in the future. I mean it doesn’t hurt unless I stand or walk. But I suppose you should document it. Objective examination revealed no sign of injury and the Veteran indicated that the discomfort was no different compared to that which he normally experienced status/post right hip surgery. Subsequently, the Veteran has reported the incident as being thrown out of the wheelchair in a standing position and experiencing back pain after that and as being thrown out of the wheelchair, jamming his hip and body into the ground. An April 29, 2013, private treatment record stated that the Veteran was three weeks status/post hip revision. It was noted that the VA Hospital had removed certain dressing and he had been doing physical therapy at VA. It was also noted that certain exercises were contraindicated and should be discontinued. X-rays taken showed slight migration of the trochanter with “what appears to be a new fracture anteriorly. Otherwise, the hip appeared to be stable. There did not appear to be significant displacement of the trochanter at this point.” It was indicated that he would be seen again in four weeks to follow up. An April 29, 2013, VA physical therapy treatment record noted that the Veteran had seen his private orthopedist that day and was to discontinue squats and abduction exercises. His weight bearing was increased to full weight bearing. The Veteran felt confident that he could return home and continue his progress. An April 30, 2013, VA physical therapy treatment record noted that he had no new complaints. It was indicated that he underwent a regular morning and evening physical therapy regimen. A May 1, 2013, VA physical therapy note stated that the Veteran ambulated more than 1000 feet using a front wheeled walker, independently, both indoors and outdoors. It was also noted that he had followed up with his orthopedist and was told to refrain from hip abduction and squat type exercises. It was stated that he felt he was ready to return to his home and would continue with exercise programs independently. A May 1, 2013, VA physical therapy telephone call note indicated that the Veteran had been discharged from VA physical therapy on April 30, 2013. It was noted that he sounded tired on the telephone. He stated that yesterday was a big day and he was taking it easy today. His pain was 8/10 but it was “under control.” A May 13, 2013, VA urgent care note stated that the Veteran was seen for the chief complaint of lower back pain since April 28, 2013. It was noted that he contacted VA on April 28, 2013, and was told to be seen that day, but he reported that he could not get a ride until May 13, 2013. The Veteran reported that on April 28, 2013, he was being pushed in a wheelchair as he was recovering from a total hip replacement, when the wheelchair went into a hole and almost tipped over. Since then he reported lower back pain/sharp compression in his back that does not get better. It was noted he was on Percocet. X-rays of the spine were taken. He was told there was no sign of acute bony injury, but that X-rays could not assess for soft-tissue injuries. He requested Vicodin instead of Percocet, so a prescription was written for 30 tablets. He was instructed that this was the maximum he could get from Urgent Care. He was also prescribed Methylprednisolone for 3 days to reduce inflammation in the lower back. A May 21, 2013, VA treatment record indicated that the Veteran was seen for follow up for hyponatremia. He shared that while he was recovering from right total hip replacement, he went to church and a volunteer was pushing him back in a wheelchair. He stated that it was a really nice day, so they decided to go outside. The Veteran reported it was a bumpy ride and he ended up hitting a pothole, tipping forward and all of his weight landed on his right heel. He felt a jarring pain go all the way up his spine. He reported that he continued to have low back pain, rated at 8/10 with movement. He also had a little right hip pain; however, he felt that he had gotten somewhat better and he expected to have some pain there, since he was only about 6 weeks post-operative. A May 29, 2013, private treatment record stated that the Veteran was eight weeks status/post right hip revision surgery. It was noted that he had been getting along reasonably well but on April 28, 2013, he had an axial loading of his right hip injury. He was seen on April 29, 2013, and X-rays did not show the underlying problem, but he continued to have pain since that time. Examination revealed mild tenderness over the right greater trochanter with palpation. X-ray studies revealed that there was new callus formation laterally along the femur up at the trochanter and also a crack in the trochanter, which was just mildly displaced. He was advised to continue to use the cane and walker to protect the crack. He was also advised against doing abduction exercises. He was to be seen again in four weeks. A June 2013 private treatment record indicated that the Veteran was seen for follow-up nearly three months after his right hip revision surgery. It was indicated that he had improved in his ability to ambulate and get around since the incident with the wheelchair. X-rays revealed what appeared to be a healing trochanteric fracture and lateral bone formation on the right hip. He was advised to continue increasing activities as tolerated. He was instructed to return in two to three months. A July 2013 private treatment record noted that the Veteran was seen for increasing right hip/groin pain. Right hip X-rays showed no evidence of any fracture and there was no change in position and alignment of components. The evaluating physician felt that the Veteran had soft-tissue or muscle strain in the right hip. A July 2013 VA treatment record noted that he reported that during the wheelchair incident he had been thrown out of the wheelchair to a standing position and had some back pain because of it. He also reported that he broke a bone in his pelvis as a result. An October 2013 private treatment record stated that his right hip pain was much improved and he did not have any problems with low back pain. There are several medical opinions of record regarding the Veteran’s claims. A July 2014 VA medical opinion report indicated that it was less likely as not that the Veteran had any chronic residuals from the claimed incident with the wheelchair hitting uneven pavement which he claims caused the fracture of the trochanter in hip/thigh and back injury. The examiner stated that the Veteran underwent right total hip arthroplasty revision at an outside hospital in April 2013 and came to VA for rehabilitation; however, no operative report was available for review. Post-operative notes discussed slight migration of the trochanter. The examiner indicated that it was unclear from available X-rays if the Veteran had a trochanteric osteotomy at the time of surgery or if he suffered later injury. The examiner concluded that with no operative report to review, the current findings were not due to an additional injury. In a September 2020 VA medical opinion reports, the clinician interpreted the wheelchair incident as a low impact event because there was no record of a “flying out of a wheelchair injury.” The clinician stated that on April 29, 2013, the Veteran was seen for post-operative routine visit and he ambulated without incident or symptom change from April 28, 2013. The clinician noted that in May 2013, the Veteran mentioned in a telephone call that there was pain. It was recommended that he go to urgent care, which he did 10 days later. The clinician considered this to be a NOS event. The clinician challenged a private opined by Dr. N. that used the word “may,” which the clinician found was not sufficient to establish causation related to the April 28, 2013, event. The clinician also stated that there is no continuity or chronicity of objective nexus to a subsequent lumbosacral spine, cervical spine, or hip diagnosis change shown in the claims file. The VA clinician noted that on review, VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met. The clinician opined that “it is less likely as not that the claimed condition was caused by or became worse as the result of VA treatment, additional disability from carelessness, negligence, lack of skill or similar instance of fault on part of the attending VA personnel or additional disability resulted from an event that could not reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress.” The Veteran also submitted medical opinions from three private treatment providers. First, a December 2018 letter from a private chiropractor, B.V., stated that the Veteran had been treated for pains related to his low back, neck, and hips. B.V. opined that after reviewing “previous cervical and lumbar images and previous notes” the Veteran’s April 28, 2013, hip injury was the cause of his problems. It was noted that on examination he had an altered gait and musculoskeletal balance. B.V. concluded that sustaining injury from a fall off a wheelchair and jamming his hip/body into the ground was consistent with the injuries seen. A September 2013 letter from Dr. J.N. indicated that the Veteran’s X-rays were reviewed. Dr. J.N. opined that it was likely that the April 28, 2013, injury where the Veteran’s leg got jammed into the ground and he was propelled forward when his wheelchair hit a pothole may have caused a non-displaced fracture of his trochanter which would not have been visible on his April 29, 2013, X-rays. However, the May 2013 follow-up X-rays showed evidence of a healing fracture. This was noted to be consistent with a fracture that may have been caused by the injury but was not radiographically apparent until there was evidence of a healing callus. A December 2013 letter from D.T., a physician’s assistant, stated that the Veteran sustained a fracture of his right trochanter when the wheelchair he was riding in was jammed into the ground, and he was propelled forward, with a twisting motion. Since that time, he had complained of neck and back pain. After examining him and reviewing his cervical and lumbar imaging, D.T. opined that the April 28, 2013, injury was the source of the neck and low back pain. Upon careful consideration of the evidence of record, the preponderance of the evidence is against the claims for compensation under 38 U.S.C. § 1151 for right trochanter fracture, thoracolumbar spine disorder or cervical spine disorder. The threshold question is whether the Veteran has any additional disability as a result of the wheelchair incident. While the record reflects that he reported increased right hip pain and back pain many days after the April 28, 2013, wheelchair incident, he did not report any significant pain or injury immediately after the incident, and at the time only documented it as a jarring injury. The Veteran specifically noted that he did not have increased pain on April 28, 2013, and the next several days he had physical therapy as usual and appeared to be ambulating well. On April 30, 2013, it was specifically indicated that he had no new complaints. The Veteran first called VA and reported back pain and radiating right hip pain on May 13, 2013, over a week after the wheelchair incident. While he indicated that the pain had been present since April 28, 2013, private and VA treatment records dated from April 29, 2013, do not corroborate such ongoing symptoms and May 13, 2013, X-rays revealed no acute back injury. Further, there was no diagnosis of any related thoracolumbar spine or cervical spine disability in any records. To the contrary, the October 2013 private treatment record indicated that the Veteran denied back problems. Further, he did not report any neck pain in conjunction with the wheelchair incident and no related neck disorder was ever diagnosed in the contemporaneous records. Further, the VA medical opinions do not reference any specific thoracolumbar or cervical spine disorder diagnosis and, although the private opinions refer to thoracolumbar and cervical spine pain and indicate that X-rays were reviewed, the private providers do not provide a specific diagnosis of any thoracolumbar spine or cervical spine disorder. However, subsequent VA and private treatment records revealed diagnoses of thoracolumbar and cervical spondylosis in 2014 and 2015. Further, an April 29, 2013, X-ray study revealed a slight migration of the trochanter with what appeared to be a new fracture anteriorly, and a June 2013 X-ray study revealed a healing trochanteric fracture and lateral bone formation on the right hip. Therefore, although subsequent records do not reflect any chronic right trochanter disability (a July 2013 private treatment record stated that X-rays showed no evidence of any fracture and there was no change in position and alignment of components and an October 2013 private treatment record reflected that his right hip pain was much improved), and it appears that the right trochanter fracture healed without complications, merely showing that the Veteran received care or treatment and that he had an additional disability such as right trochanter fracture, thoracolumbar spondylosis, and cervical spondylosis, but does not establish cause. As such, the second criterion certainly has not been met. In this regard, the evidence does not show that the VA care on April 28, 2013, was characterized by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care. Additionally, evidence has not been submitted establishing that the right trochanter fracture, thoracolumbar spine disorder, and/or cervical spine disorder was the result of an event not reasonably foreseeable. According to the VA opinions, the April 28, 2013, wheelchair incident did not result in any increased or additional disability due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA care providers. Simply put, the medical evidence does not show that the Veteran failed to receive adequate VA medical treatment or that he received inadequate, careless, or negligent care by VA. Importantly, the private medical opinions did not implicate careless, negligent, etc., VA treatment. The Veteran has not put forth any evidence, apart from his own lay opinion, showing that the proximate cause of any such right trochanter fracture, thoracolumbar spine disorder, or cervical spine disorder was carelessness, negligence, lack of proper skill, error in judgment, a similar instance of fault on the part of VA, or was not reasonably foreseeable. The incident on April 28, 2013, was not described by the Veteran as a severe injury at the time and the Veteran was ambulating and continuing to perform physical therapy without problems in the days after the incident. It is important to note that the private opinions are based on an inaccurate factual premise in that they reference the wheelchair incident in terms of the Veteran coming out of the wheelchair, jamming his hip/body into the ground. As his own words (documented in the April 28, 2013, VA treatment record and in the records in the days following), do not relate that the wheelchair incident was this severe, these private opinions are afforded lesser probative value. Moreover, the private opinions merely stated that the additional disabilities “may” be related or are “likely” related to the wheelchair incident. They do not indicate that the VA care on April 28, 2013, was characterized by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. Further, the private opinions do not reflect review of the VA treatment records, which (as noted above) do not reflect that the Veteran came out of the wheelchair or jammed his hip into the ground, or review of the VA/private treatment records days after the wheelchair incident which reflected that he was ambulating well. For the reasons and bases discussed above, the requirements of 38 U.S.C. § 1151 have not been met for the Veteran’s right trochanter fracture, thoracolumbar spine disorder and cervical spine disorder, because there is no indication that the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, a similar instance of fault, or an event not reasonably foreseeable. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.