Citation Nr: 21012984 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-37 613 DATE: March 8, 2021 ORDER The claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for groin, scrotum, neck, shoulder, back, hip, arm, heel, foot, ankle, and head disorders is denied. FINDING OF FACT The Veteran did not incur a chronic disorder from faulty medical care provided by the U.S. Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to February 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a VA Regional Office (RO). In October 2018, the Veteran testified in a videoconference hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. In March 2019 and October 2020, the Board remanded this matter for additional medical inquiry. The case is again before the Board for appellate review. Service Connection under 38 U.S.C. § 1151 In April 2011, after undergoing occupational therapy for a neck disorder, the Veteran slipped and fell on a wet substance at a VA medical facility. He asserts that the fall was a result of VA negligence, and that he developed groin, scrotum, neck, shoulder, back, hip, arm, heel, foot, ankle, and head disorders as the result of the fall. He claims entitlement to compensation for the disorders under 38 U.S.C. § 1151. Law and regulations When a veteran suffers additional disability or death 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 or death was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The claimant must show some degree of fault, and more specifically, that the proximate cause of disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Merely showing that a veteran received care, treatment, or examination and that that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). 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 or death, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of lay statements, VA treatment records, and VA compensation examination reports dated in May 2013, December 2019, and December 2020. This evidence documents that the Veteran slipped and fell while at a VA facility in April 2011 due to moisture on a floor near the office in which he received occupational therapy. It also demonstrates that he complained of pain in multiple areas following the accident. However, an award of service connection under 38 U.S.C. § 1151 is unwarranted. The preponderance of the evidence of record is against the claim that additional disability resulted from the accident. The May 2013 VA report indicates that the fall may have caused groin strain and a contusion to the elbow. The report also indicates that the Veteran had many disabilities prior to the accident, to include diffuse degenerative arthritis, benign prostatic hypertrophy (BPH), prostatitis, erectile dysfunction, neck and back degenerative joint disease with upper extremity radiation, left rotator cuff tear and right shoulder strain including radiating pain from the neck, achilles tendinitis, foot and degenerative joint disease, bilateral cubital tunnel syndrome, and headaches (later attributed directly to service). Inasmuch as the report is not clear regarding the question of whether any additional disability resulted from the accident, the Board remanded the case for an addendum opinion. That opinion, dated in December 2019, along with a second addendum opinion dated in December 2020, found that no additional disability resulted from the accident. In the December 2019 opinion, the examiner detailed the many disorders the Veteran had prior to the accident, and the lack of evidence following the accident indicating that a chronic disorder resulted from the fall, or that a preexisting disorder was aggravated as a result of the fall. With regard to disorders involving the groin and scrotum, the December 2019 examiner noted that a November 2012 urology consult indicated a history of testicular contusion, but examination indicated a normal GU system including normal testicles. The December 2019 examiner also noted that the May 2013 VA report indicated normal testicles and “no evidence of a residual disability related to the groin strain diagnosed in 2011.” The examiner also cited the evidence of preexisting BPH and that treatment records addressing BPH in September 2013 indicated that the Veteran denied scrotal pain, treatment or diagnosis. With regard to the neck, the examiner noted a degenerative joint disease diagnosis in 2004 with upper extremity radiculopathy and indicated no medical evidence of treatment for a separate disorder, or an aggravation of the disorder, following the fall. Further, the evidence does not indicate direct trauma to the neck from the fall. With regard to the right shoulder, the examiner noted that examination of the shoulder in 2011 and 2013, to include x-ray examination, found a normal right shoulder. Medical evidence dated prior to the fall also indicates that the Veteran was treated for a left rotator cuff tear prior to the accident. With regard to the back, the examiner noted a history of back disorders dating from the 1990s, with two surgeries in 1998. Magnetic resonance imaging in October 2011 revealed degenerative changes without evidence of radiculopathy. The examiner also noted medical evidence after the fall, dated in 2011 and 2012, indicating a continuation of the degenerative changes that existed prior to April 2011. With regard to the hips, the examiner found that the Veteran did not have a hip disorder, citing x-ray evidence dated in 2011 and 2013, and the fact that there has been no hip diagnosis or treatment for a hip disorder following the April 2011 accident. The December 2019 examiner noted a possible contusion to the arm related to the fall, as noted in the May 2013 report. But the examiner indicated no residual of the contusion. The Veteran was diagnosed with bilateral cubital tunnel syndrome based on electromyography (EMG) testing in 2012 and 2013. The examiner indicated that this disorder was unrelated to the fall, stating that cubital tunnel syndrome is a “compressive neuropathy at the elbow and when it is related to acute trauma it is due to humeral fracture, or nerve laceration, which the veteran did not sustain” in the accident. The examiner found the disorder most likely due to overuse of the arms rather than to trauma. With regard to the heels, feet, and ankles, the examiner indicated that the Veteran had several disorders prior to the fall, to include bilateral achilles tendonitis, bilateral plantar fasciitis, bilateral degenerative joint disease in the ankles, bilateral arthritis in the feet, pes planus, right bunionectomy residuals and a left bunion. The examiner described the problems identified in a June 2011 VA x-ray as “nothing acute” because “one cannot develop DJD in 3 months post-accident[.]” The examiner also noted that the May 2013 VA examination indicated no tenderness to the foot including the heel. The examiner also indicated no diagnosis or treatment for a separate foot, ankle, or heel disorder following the accident. With regard to the head, the record shows that the Veteran was prescribed Lortab for pain on the day of the accident and was prescribed Antivert for dizziness several days following the accident. The December 2019 examiner noted that the Veteran did not have a loss of consciousness from the accident, noted that an April 2011 CT scan of the head found “no acute intracranial process[,]” and stated that the Veteran was not diagnosed with traumatic brain injury (TBI) following the accident. In October 2020, the Board requested additional commentary regarding the head. In the December 2020 addendum opinion, the examiner also found no evidence of an additional head or brain disability from the accident. This examiner also found that the Veteran did not suffer a TBI during the fall, despite his complaints of headaches, dizziness, nausea, and irritability. The examiner cited the negative April 2011 CT scan of the brain, and cited negative findings regarding TBI in multiple subsequent VA treatment records and VA compensation examination reports addressing service-connected headaches, hearing loss, and psychiatric disability. Indeed, VA treatment records dated between 2014 and 2021 repeatedly indicate the absence of a history of TBI and repeatedly state, “no head trauma.” An August 2019 VA report addressing headaches is negative for complaints, treatment, or diagnosis of TBI, and instead connects headaches with complaints of recurrent headaches during service. Moreover, August 2019 and June 2020 VA reports addressing psychiatric disability state that a history of TBI is “not shown in records review” while October 2019 and October 2020 VA reports addressing vertigo are negative for TBI, as is a November 2020 VA report addressing hearing loss disability. Based on the foregoing, the Board finds the May 2013, December 2019, and December 2020 VA opinions addressing the § 1151 claim probative. The examiners’ findings are based on the evidence of record and are explained. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Board has reviewed the Veteran’s lay assertions. He is competent to report observable symptoms such as pain and limitation of motion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues regarding diagnosis and etiology. These are medical issues which, in this matter, involve internal matters beyond his ability to observe. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On the complex question of whether the April 2011 fall resulted in chronic disabilities, his lay statements are of limited probative value. Indeed, the findings in the VA treatment records and VA reports preponderate against his assertions. (Continued on the next page)   In summary, the record indicates that liquid on a floor caused the Veteran to slip and fall at a VA facility in April 2011. The evidence indicates that he may have experienced a groin strain and an elbow contusion. But the weight of the competent and probative evidence is against finding that a chronic disorder resulted from the fall. 38 U.S.C. § 1151. The Veteran has repeatedly asserted that the fall led to many problems. However, he lacks the medical expertise necessary to render a competent medical opinion regarding causation. Moreover, the medical evidence dated since the accident demonstrates that the accident did not cause a new disability. The record is clear that the Veteran had many disorders prior to the accident, which have proven to be unrelated to the accident. Indeed, in January 2011 VA emergency room treatment records, the Veteran’s many problems are discussed as is his claim that “he is hurting all over and it has gone on for over 2 weeks.” As such, the Board finds the preponderance of the probative evidence against the claim for compensation under 38 U.S.C. § 1151. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.