Citation Nr: 0001059	
Decision Date: 01/13/00    Archive Date: 01/27/00

DOCKET NO.  95-28 464	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUE

Entitlement to compensation benefits under the provisions of 
38 U.S.C.A. § 1151, for additional disability from 
aggravation of a lumbar spine disorder, claimed as incurred 
as a result of an injury sustained during hospitalization at 
a VA medical facility.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse



ATTORNEY FOR THE BOARD

Daniel R. McGarry


INTRODUCTION

The veteran had active service from June 1968 to December 
1969.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision in which the 
regional office (RO) denied compensation benefits pursuant to 
38 U.S.C.A. § 1151, for increased disability from aggravation 
of a lumbar spine disorder, claimed as resulting from VA 
hospitalization.


FINDINGS OF FACT

1.  The veteran was hospitalized at a VA facility from June 6 
to July 8, 1994.

2.  Before June 1994, the veteran had nonservice-connected 
disability from residuals of herniated nucleus pulposus, 
status post lumbar laminectomy and diskectomy at the fifth 
lumbar and first sacral intervertebral space (L5-S1).

3.  During his VA hospitalization during part of June and 
July 1994, the veteran complained of symptoms of low back 
pain after attempting to lift a patient into bed.

4.  The record contains no competent evidence that the 
claimed back injury, diagnosed as left paraspinal muscle 
strain, resulted from VA hospitalization.

5.  The record contains no competent evidence that any 
increased disability due to the veteran's pre-existing lumbar 
spine disorder resulted from VA hospitalization.


CONCLUSION OF LAW

The claim of entitlement to compensation benefits for 
additional disability from aggravation of a lumbar spine 
disorder, claimed as incurred as a result of hospitalization 
at a VA medical facility, is not well grounded.  38 U.S.C.A. 
§ 1151 (West 1991); 38 C.F.R. § 3.358 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that he sustained a back injury while he 
was hospitalized at a Department of Veterans Affairs (VA) 
medical center in June 1994.  He was being treated at the 
time for post-traumatic stress disorder.  Another patient in 
his room had a seizure and fell out of bed.  When the veteran 
attempted to lift him back into his bed, the veteran felt 
burning pain in his low back.  Soon thereafter, X-rays 
reportedly showed no change from earlier X-rays.  The veteran 
has acknowledged that he had disability from a pre-existing 
back disorder.  He has asserted that his symptoms of low back 
pain and radicular pain to his right leg have been 
continuously worse since this incident.

The Board notes that Section 422(a) of Public Law 104-204, 
110 Stat. 2874, 2926 (1996) amended 38 U.S.C.A. § 1151; 
however, this amendment was effective from claims filed on or 
after October 1, 1997.  The claim that forms the basis for 
this appeal was filed in April 1995.  Thus, this amendment, 
as well as subsequent amendments to the regulations based 
thereupon, do not apply to the claim now before the Board on 
appeal.

In pertinent part, 38 U.S.C.A. § 1151 prior to its amendment 
provided that:

Where any veteran shall have suffered an 
injury, or an aggravation of an injury, 
as the result of hospitalization, medical 
or surgical treatment, or the pursuit of 
a course of vocational rehabilitation . . 
., or as a result of having submitted to 
an examination . . ., and not the result 
of such veteran's own willful misconduct, 
and such injury or aggravation results in 
additional disability . . ., disability 
or death compensation . . . shall be 
awarded in the same manner as if such 
disability, aggravation, or death were 
service connected.

The regulation implementing 38 U.S.C.A. § 1151 was amended 
several times between April 1995 and the present:  in March 
1995, effective from November 25, 1991; in May 1996, 
effective from November 25, 1991; and in January 1999, 
effective from January 8, 1999.  In Karnas v. Derwinski, 1 
Vet. App. 308, 312-13 (1991), the Court held that, when there 
has been a change in an applicable stature or regulation 
after a claim has been filed but before a final decision has 
been rendered, VA must apply the version of the statute or 
regulation which is most favorable to the claimant, unless 
Congress has expressly provided otherwise or has authorized 
VA to provide otherwise and VA has done so.  Accordingly, it 
is necessary to determine which version of the regulation is 
most favorable to the claimant.  The General Counsel of VA, 
in a precedent opinion, has held that the determination of 
whether an amended regulation is more beneficial to a 
claimant than the prior provisions must be made on a case-by-
case basis.  VAOPGCPREC 11-97 (O.G.C. Prec 11-97).  According 
to the cited opinion, when there is a pertinent change in a 
regulation while a claim is on appeal to the Board, the Board 
must take two sequential steps.  First, the Board must 
determine whether the amended regulation is more favorable to 
the claimant than the prior regulation.  Second, the Board 
must apply the more favorable provision to the facts of the 
case.

None of the regulatory revisions affect the outcome of this 
case, in that they do not affect that requirement that the 
injury or aggravation of an injury be a result of VA 
hospitalization, medical or surgical treatment, vocational 
rehabilitation, or examination.  Therefore, the Board will 
apply the current regulation, 38 C.F.R. § 3.358, which 
provides in pertinent part:

(b) Additional disability.  In 
determining that additional disability 
exists, the following considerations will 
govern: (1) The veteran'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. . . 
. (ii) As applied to medical or surgical 
treatment, the physical condition prior 
to the disease or injury will be the 
condition which the specific medical or 
surgical treatment was designed to 
relieve.

(c)  Cause.  In determining whether such 
additional disability resulted from a 
disease or an injury or an aggravation of 
an existing disease or injury suffered as 
a result of training, hospitalization, 
medical or surgical treatment, or 
examination, the following considerations 
will govern: . . .

(2)  The mere fact that aggravation 
occurred will not suffice to make the 
additional 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 training, hospitalization, 
medical or surgical treatment, or 
examination.

The RO has adjudicated the claim under 38 U.S.C.A. § 1151 and 
the amended 38 C.F.R. § 3.358(c). This amended rule deletes 
the fault or accident requirement in section (c)(3), but does 
not alter the requirement in sections (c)(1) and (2) that 
additional disability is "proximately due" to VA action.  It 
appears that the RO denied the claim primarily on the grounds 
that no additional disability had resulted from the VA 
hospitalization in question.  In particular it was noted that 
the veteran had a low back disorder prior to his admission in 
June 1994, and did not establish additional disability 
resulting from that hospitalization.

The law provides that "a person who submits a claim for 
benefits under a law administered by the Secretary shall have 
the burden of submitting evidence sufficient to justify a 
belief by a fair and impartial individual that the claim is 
well grounded."  38 U.S.C.A. § 5107(a) (West 1991).  A well-
grounded claim is a plausible claim which is meritorious on 
its own or is capable of substantiation.  See Murphy v. 
Derwinski, Vet.App. 78, 81 (1990).  

In Jones. V. West, 12 Vet. App. 460 (1999), the United States 
Court of Appeals for Veterans Claims (hereinafter referred to 
as the Court) held that the requirements for a well-grounded 
claim under 38 U.S.C.A. § 1151 are, paralleling those 
generally set forth for establishing other service connection 
claims, as follows: (1) medical evidence of a current 
disability; (2) medical evidence, or in certain circumstances 
lay evidence, of incurrence or aggravation of an injury as 
the result of hospitalization, medical or surgical treatment, 
or the pursuit of a course of vocational rehabilitation under 
chapter 31 of title 38, United States Code; and (3) medical 
evidence of a nexus between that asserted injury or disease 
and the current disability.  In this case, the claims file 
contains no evidence or assertion that the veteran's alleged 
increase in disability due to aggravation of a pre-existing 
back disorder resulted from VA hospitalization, medical, or 
surgical treatment.  Therefore, the Board concludes that he 
has not filed a plausible claim.  Although the RO did not 
specifically state that it denied the veteran's claim of 
entitlement to service connection for a low back disorder on 
the basis that it was not well grounded, the Board concludes 
that this error was not prejudicial to the claimant.  See 
Edenfield v. Brown, 8 Vet. App. 384 (1995) (deciding that the 
remedy for the Board's deciding on the merits a claim that is 
not well grounded should be affirmance, on the basis of 
nonprejudicial error).  While the RO denied service 
connection on the merits, the Board concludes that denying 
the claim because the claim is not well grounded is not 
prejudicial to the appellant, as the appellant's arguments 
concerning the merits of the claim included, at least by 
inference, the argument that sufficient evidence to establish 
a well-grounded claim is of record.  Therefore, the Board 
finds that it is not necessary to remand the matter for the 
issuance of a supplemental statement of the case concerning 
whether or not the claim is well grounded.  See Bernard v. 
Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16-92 (O.G.C. 
Prec. 16-92) at 7-10.

Where a claim is not well grounded it is incomplete, and VA 
is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant 
of the evidence needed to complete his application.  
Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995).  In this 
case, the RO informed the appellant of the necessary evidence 
in its notice of rating decision dated in May 1995, and in 
the June 1995 statement of the case.  The discussion below 
informs the veteran of the types of evidence lacking, and 
which he should submit for a well-grounded claim.  Unlike the 
situation in Robinette, in this case the veteran has not 
advised VA of the existence of any particular evidence which, 
if obtained, would render his claim well grounded.

In this case, the RO adjudicated the claim under 38 U.S.C.A. 
§ 1151 and the amended 38 C.F.R. § 3.358(c).  However, the 
decision was not based on lack of fault by VA.  It appears 
that the RO denied the claim essentially on the grounds that 
the medical evidence did not show a worsening of the 
veteran's disability during the veteran's June 1994 
hospitalization or thereafter.  However, the Board concludes 
that the veteran's claim must fail on other grounds, as there 
is no proof that the aggravation, if any, of the veteran's 
low back disorder, resulted from the June 1994 
hospitalization.

The evidence in the claims folder shows that the veteran had 
disability from a low back disorder prior to his 
hospitalization in June 1994.  Private treatment notes dated 
in July 1989 show that he complained of severe low back pain 
with radiating pain down both legs, worse on the right.  
There were decreased reflexes at the left knee and ankle.  
The pertinent diagnosis was herniated disc.  Records of 
private hospital treatment show that in November 1993 the 
veteran underwent a L5-S1 laminectomy, foraminotomy, 
facetectomy, diskectomy, and posterior lateral fusion after a 
magnetic resonance imaging (MRI) showed a herniated nucleus 
pulposus with nerve root impingement at L5-S1.  A note made 
on the day of his discharge indicated that the veteran was 
ambulating well with a chairback brace.  A VA treatment note 
dated in early December 1993 shows that the veteran reported 
that his right leg pain had been reduced 60 percent but he 
still had numbness in his right foot.  He reported that he 
was doing home exercises and walking one block daily.

The veteran was hospitalized in early June 1994 after 
experiencing an increase in his PTSD-related symptoms.  The 
hospital summary noted that the veteran ambulated with 
crutches due to some "nerve problems in the spine."  A 
physical examination at the time of admission was 
unremarkable except for an old, healed lower midline surgical 
scar on the back and left lower quadrant abdominal 
tenderness.  During his hospital course, it was reported that 
the veteran tried to pick up a patient who had slipped to the 
floor.  He complained of burning pain in his lower back.  X-
rays showed narrowing of the lumbosacral disc space with some 
bony spurring noted at the lower two levels.  The findings 
were reported as being consistent with degenerative joint 
disease, with no significant change from earlier X-ray films.  
An orthopedic consultant diagnosed left paraspinal muscle 
strain and history of right radiculopathy.  The consultant 
recommended a rehabilitation medicine consultation for "back 
school" and right leg strengthening, and allowed ambulation 
as tolerated.

The veteran's testimony about the circumstances of the June 
1994 back injury is consistent with the hospital summary.  He 
testified in April 1997 that another patient in his hospital 
room fell out of bed.  When the veteran tried to pick him up, 
he felt a burning pain in his low back.  He then summoned a 
nurse.  He and the nurse were able to get the patient back 
into his bed.  The veteran testified that his back pain had 
worsened, requiring a course of steroid injections and 
physical therapy.  The veteran acknowledged that the reason 
for his hospitalization was treatment for PTSD.  He denied 
having treatment for a back disorder at that time.  Soon 
after the incident, the veteran was issued a full length leg 
brace for his right leg because of weakness.  He reported 
that the course of steroid injections began about six weeks 
after his discharge from the hospital.  At the time of the 
hearing, the veteran was using a wheelchair.  He explained 
that he used the wheel chair because the leg brace was heavy 
and hurt his back.

VA outpatient treatment notes dated in August 1994 show that 
the veteran complained of right-sided weakness.  He was 
walking with a cane.  Clinical findings included absence of 
deep tendon reflexes in both ankles, and decreased sensation 
in both feet.  The examiner's impressions included low back 
pain.  During VA outpatient treatment in January 1995, the 
veteran gave a history of multiple back surgeries after back 
trauma.  He reported that he was "doing worse."  The 
reported impressions included essential tremor, and S1 
radiculopathy, failed back surgery.  During a VA neurosurgery 
consultation in February 1995, the veteran complained of 
right lower extremity pain, weakness, and tingling.  He also 
complained of back pain at the waist line.  He told an 
examiner that his symptoms became worse after he picked up 
another patient in June 1994.  He reported having sporadic, 
sudden, spontaneous episodes of right lower extremity 
weakness.  He continued to wear a back brace during physical 
therapy.  During an orthopedic consultation in March 1995, 
the examiner noted the veteran's history of back surgery, 
PTSD, and "cerebellar" disease.  The veteran told the 
examiner that his right leg had been giving out for several 
years.  During the preceding six months, he had worsening 
symptoms of shaking and blurred vision.  On neurological 
examination, the veteran had dyskinesia in both upper and 
lower extremities.  The examiner noted impressions of 
probable cerebellar disorder, and status post S1 
radiculopathy.  After reporting the impression of the 
cerebellar disorder, the examiner noted his instruction to 
the veteran to use a wheel chair, as he was not able to walk 
safely.

When hospitalized in November 1996 for treatment of PTSD, the 
veteran had a prosthesis consultation, as he had requested a 
wheelchair for use at home.  It was noted that he had a 
seizure disorder and low back pain with fused vertebrae and 
radicular pain in his leg.  A wheelchair was issued.  The 
more recently dated records of VA outpatient treatment show 
that the veteran continued to have treatment of essential 
tremor, lumbar radiculopathy, and seizure disorder.

The veteran has not contended, nor does the evidence in the 
claims file otherwise show, that his increased in disability 
from the pre-existing lumbar spine disorder was aggravated by 
training, medical or surgical treatment, or examination.  He 
has asserted that his low back disorder was aggravated as a 
result of hospitalization.  Although it is not clear that the 
veteran's disability from his low back disorder did, in fact, 
worsen after the incident during the hospitalization in 
question, that aspect of the case need not be addressed, as 
it is clear that the injury he allegedly sustained did not 
result from hospitalization.  The veteran has conceded that 
he was not being treated at the hospital for a back disorder 
prior to or at the time of the alleged back injury.  Rather, 
at the time of the alleged injury, he was attempting to lift 
another patient into a bed.  The record contains no competent 
medical evidence that the veteran's disability from his pre-
existing low back disorder, if worsened during hospital 
treatment for PTSD, resulted from his being hospitalized.  
Assuming, without deciding, that the veteran did injure his 
back during the June/July 1994 hospitalization and assuming 
further that such injury did result in increased disability, 
there is still no evidence that any aggravation of the pre-
existing injury was caused by his hospitalization.  The mere 
fact that an injury incurred while the veteran was 
hospitalized resulted in aggravation will not suffice to make 
the additional disability compensable in the absence of proof 
that the injury was suffered as the result of  
hospitalization.  38 C.F.R. § 3.358(c)(2) (1999).  This is 
consistent with Sweitzer v. Brown, 5 Vet. App. 503 (1993), in 
which the Court held that aggravation of the veteran's back 
condition after being struck by a motorized wheelchair while 
waiting at a VA facility for his examination was coincidental 
to his reporting for examination, not a result of having 
submitted to examination.  Similarly, in this instance, the 
claimed aggravation of the veteran's back condition as a 
result of his attempt to lift another veteran during his VA 
hospitalization for treatment of his PTSD is coincident with 
his hospitalization, but not the result of his 
hospitalization.  Therefore, the Board concludes that the 
claim is not well grounded.



ORDER

Entitlement to compensation benefits under the provisions of 
38 U.S.C.A. § 1151, for additional disability from 
aggravation of a lumbar spine disorder, claimed as incurred 
as a result of an injury sustained during hospitalization at 
a VA medical facility, is denied.



			
	CONSTANCE B. TOBIAS 	HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals	Member, Board of Veterans' 
Appeals



		
MARY GALLAGHER
Member, Board of Veterans' Appeals