Citation Nr: 9905482 Decision Date: 02/26/99 Archive Date: 06/24/99 DOCKET NO. 97-14 295 DATE FEB 26, 1999 On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. 1151 for residuals of a right femoral neck fracture as a result of treatment by VA in April 1994. REPRESENTATION Appellant represented by: Paralyzed Veterans of America ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from August 1952 to July 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, In August 1998, the veteran testified before the undersigned Board member at a Travel Board hearing. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The medical evidence of record reflects that the veteran sustained a fracture of the right femoral neck as a result of an adverse reaction to a steroid shot to the low back administered by VA in April 1994. CONCLUSION OF LAW Compensation under the provisions of 3 8 U. S.C.A. II 51 for residuals of a fracture of the right femoral neck is warranted. 38 U.S.C.A. 1151, 5107 (West 1991); 38 C.F.R. 3.358, 3.800 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable Laws and Regulations The Board notes at the outset that in November 1991, the United States Court of Veterans Appeals (Court) invalidated 38 C.F.R. 3.358(c)(3) (1991), part of the regulation applicable to cases involving claims under 38 U.S.C.A. 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991). The Court's decision was affirmed by the United States Court of Appeals for the Federal Circuit (Gardner v. Brown, 5 F. 3rd 1456 (Fed. Cir. 1993)) and then by the United States Supreme Court (Brown v. Gardner, 115 S.Ct. 552 (1994)). Thereafter the Secretary of the VA sought an opinion from the Attorney General of the United States as to the full extent to which benefits were authorized under the decision of the United States Supreme Court. On March 16, 1995, amended regulations were published deleting the fault or accident requirement of 38 C.F.R. 3.358, in order to conform the regulation to the decision of the United States Supreme Court. When any veteran suffers an injury or aggravation of an injury as the result of VA hospitalization, medical or surgical treatment, examination, or the pursuit of a course of vocational rehabilitation, and such injury or aggravation results in additional disability to the veteran, disability compensation shall be awarded in the same manner as if such disability or aggravation were service connected. 38 U.S.C.A. 1151 (West 1991); 38 C.F.R. 3.358 (1998). In determining that additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. 3.358(b). In determining whether any additional disability resulted from VA hospitalization or treatment, the following considerations will govern: (1) It is necessary to show that additional disability is actually the result of such disease or injury, or aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization, medical or surgical treatment, or examination. 38 C.F.R. 3.358(c)(1) and (2). (2) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. 3.358(c)(3). Where disease, injury, or the aggravation of an existing disease or injury occurs as the result of VA medical or surgical treatment, hospitalization, or examination, and not as a result of the veteran's own willful misconduct, disability compensation will be awarded for such disease, injury, or aggravation as if such condition were service connected. 38 C.F.R. 3.800 (1998). While the appellant is not required to show fault or negligence in medical treatment., Brown v. Gardner, 115 S.Ct. 552 (1994), the appellant still has the burden of submitting cognizable evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible or capable of substantiation. That is, she must submit competent evidence of additional disability or death which came as the result of VA treatment. 38 U.S.C.A. 5107(a). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [3 8 U.S.C.A. 5107]." Murphy v. Derwinski, I Vet. App. 78, 81 (1990). Where the determinative issue involves a question of medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A claimant cannot meet this burden simply by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In considering the veteran's claim for compensation benefits under 38 U.S.C.A. 1151 for residuals of a right femoral neck fracture, the Board is constrained to conclude, in light of the reasoning advanced herein below, that the veteran's related claim for pertinent 38 U.S.C.A. 1151 benefits is granted for the reasons set forth below. In this case, the veteran is currently claiming entitlement to benefits under the theory that she fell and fractured her right femoral neck as a result of dizziness caused by an adverse reaction to a steroid injection to her low back administered by the VA Medical Center in Minneapolis, Minnesota, on April 21, 1994. II. Factual Background Private and VA medical records, dating from 1994 to 1996, reflect that on April 21, 1994, the veteran received an epidural injection to her low back at the VA Medical Center in Minneapolis, Minnesota (MVAMC). A MVAMC Postanesthetic Discharge Note reflects that as a result of the injection, the veteran developed epidural anesthesia at the T4 level, became hypotensive, experienced numbness into the region of her breast and had blood pressure changes (blood pressure was 80/60). The veteran was given intravenous therapy and it was noted that she was to be kept until the numbness subsided. A MVAMC Postanesthetic Visit report, dated on April 22, 1994 at 9:00 a.m., reflects that the veteran was contacted at home and in the "remarks" section it was noted that she still felt woozy with pressure on the back of her skull. It was noted that she would be followed up. X-rays of the right hip in the anterior-posterior and lateral views, performed by VA, in April 1994, revealed a fracture through the femoral neck with minimal displacement. In April 1994, the veteran underwent a right open reduction, internal fixation of her right femoral neck fracture with three cannulated screws. In June 1995, the screws were removed because they caused the veteran pain when she walked and stood. Subsequent VA reports, dated in November and December 1995, reflect that the veteran continued to complain of right leg and hip pain which interfered with her ability to ambulate, and that she used a cane. During a December 1996 VA examination, the examiner indicated that he did not examine the veteran, but that he had reviewed the entire claims file. It was the opinion of the VA examiner that "it was likely as not" that the veteran's fall and resulting fracture of the right hip were not due to the steroid shot performed by VA. The examiner further commented that the veteran had many chronic disabilities prior to the evaluation, such as osteoporosis. The examiner further indicated that the medical records reflect that the spinal shot administered by VA was performed with appropriate ethical standards and he found it hard to believe that the veteran would have been sent home hypotensive. Finally, the examiner found the description of numbness up into the level of the breast by the veteran difficult to correlate with known experience, as one might anticipate numbness from down into the area of the leg, but not into a higher level. The examiner felt that some psychogenic factors might have been the cause of the numbness into the area of the breast. In short, it was the conclusion of the VA examiner in December 1996 that a relationship between the steroid injection in the epidural space and the subsequent fall could not be established. In August 1998, the veteran testified before a traveling section of the Board at the RO in St. Paul, Minnesota, that she sustained a right femoral neck fracture as a result of a fall in the bathroom which was caused by dizziness attributable to a steroid shot to her low back administered by the VA Medical Center in Minneapolis, Minnesota on April 21, 1994. The veteran related that for hours after she received the steroid shot, she felt numb for hours from her neck down and that she had to be put in a wheelchair. VA progress notes, dated in 1998, reflect that the veteran continued to complain of' right leg and hip pain, and that she was in a wheelchair as a result of neuropathy of' the legs. It was noted that the veteran was status-post fracture to the right hip and steroid injection of the back, which had left her unable to move for seven hours. The veteran was diagnosed as having osteoporosis of the right hip and lumbar spine, status-post right thrombotic microangiopathy, status-post multiple other fractures and chronic pain. A January 1999 medical report submitted by Craig N. Bash, M.D., Neuroradiologist, Board certified radiologist, reflects that he had reviewed the veteran's entire claims file, to include the December 1996 VA examination report, prior to rendering an opinion. After a review of the claims file, it was the opinion of Dr. Bash that it was likely that the adverse reaction to the steroid injection resulted in epidural anesthesia to the T4 level and that complications associated with post-anesthesia were the primary cause of her fall and fracture on April 22, 1994. In support of his conclusion, Dr. Bash stated that the medical records reflect that the veteran experienced numbness at the T4 level, and that such numbness could have lasted for days and/or weeks depending on the amount and type of substance injected into the epidural space. It was the opinion of Dr. Bash that the veteran's fall was not likely to be temporally related to her osteopenia, but to the adverse reaction caused by the steroid injection into her lower back. III. Analysis In determining that additional disability exists, the Board notes that after the VA administered a steroid injection to the veteran's low back on April 21, 1994, she developed epidural anesthetic at the T4 level, became hypotensive, experienced numbness, received intravenous therapy and was instructed not to be released until her numbness subsided. In addition, a MVAMC Postanesthetic visit report, dated on April 22, 1994 at 9:00 a.m., reflects that the veteran was contacted at her home the day after she received the steroid shot, and it was reported that she still felt woozy with pressure on the back of her skull. While the Board has taken note of the December 1996 VA medical opinion, wherein it was indicated that the veteran's fall and resulting fracture to the right femoral neck were not secondary to the steroid injection administered by VA, the Board also recognizes the January 1999 medical opinion of Craig N. Bash, M.D., a neuroradiologist and Board Certified radiologist, who reviewed the entire claims file, to include the December 1996 VA examination report. In doing so, the Board finds that the opinion rendered by Craig N. Bash, M.D. to be definitive and conclusive with respect to the relationship between the steroid shot and the resulting fall and fracture of the right femoral neck. In this regard, the Board notes that Dr. Bash firmly concluded that the spinal shot and its post-anesthesia complications were the cause of the veteran's subsequent fall and fracture of the right primary femoral neck. With consideration of the testimony provided by the veteran at the personal hearing in August 1998, the Board finds the evidence to be in equipoise regarding the question now on appeal. Resolving the benefit of the doubt in the veteran's favor, the Board finds that compensation under the provisions of 38 U.S.C.A. 1151 for residuals of a fracture of the right femoral neck, as the result of a steroid shot to the low back administered by VA in April 1994, is warranted. 38 U.S.C.A. 1151, 5107 (West 1991); 38 C.F.R. 3.358, 3.900 (1998). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. 1151 for residuals of a fracture of the right femoral neck, as the result of a steroid shot to the low back administered by VA in April 1994, is granted. WAYNE M.BRAEUER Member, Board of Veterans' Appeals