Citation Nr: 0005007 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-21 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to compensation under the provisions of Title 38, United States Code, Section 1151, for neck, left arm and left shoulder disorders and headaches, as a result of hospitalization from August 1993 to September 1993 by the Department of Veterans Affairs (VA). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran was on active service from February 1961 to February 1965. His claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the VA Regional Office in Fargo, North Dakota (RO). FINDING OF FACT The veteran's claim is not plausible inasmuch as there is no medical evidence of record establishing that the veteran suffers additional disability, including neck, left arm and left shoulder disorders and headaches, as a result of an injury sustained during an August 1993 to September 1993 VA hospitalization. CONCLUSION OF LAW The claim of entitlement to compensation under the provisions of Title 38, United States Code, Section 1151, for neck, left arm and left shoulder disorders and headaches, as a result of hospitalization from August 1993 to September 1993 by the VA is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he suffers residuals of an injury sustained during a hospitalization by the VA from August 1993 to September 1993. Specifically, he asserts that, in August 1993, while admitted to a VA medical facility for alcohol and drug treatment and on antidepressants, he attempted to stand up from a chair in which he was sitting by using the armrests, but instead, as a result of the chair flipping backward against a wall, fell down and struck his skull and neck on the back of the chair. He further asserts that since this injury, he has been diagnosed with cervical fractures and left ulnar nerve entrapment and has intermittently experienced pain radiating to his head, neck area, left shoulder and left elbow. A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). To establish that a claim is well grounded in a case in which the determinative issue involves a question of medical causation, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). When a veteran suffers an injury or aggravation of an injury as the result of hospitalization or medical or surgical treatment, and such injury or aggravation results in additional disability to the veteran and is not the result of his own willful misconduct, 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 (1999). In determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease of 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. 38 C.F.R. § 3.358(c)(1), (2). (2) Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those that 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). Section 1151 of Title 38 of the United States Code was modified by section 422(a) of Public Law 104-204; 110 Stat. 2926 (Sept. 29, 1996), to require that an injury from VA hospitalization be caused by "carelessness, negligence, lack of proper skill, error of judgment, or similar instance of fault," or an "unforeseeable event," before benefits may be awarded under its provisions. However, these amendments apply only to claims filed on or after the effective date of the statute, which is October 1, 1997. Since the veteran's appeal was pending prior to this date, it continues to be subject to review under the prior statutory language and interpretation of 38 U.S.C.A. § 1151. Compare Karnas v Derwinski, 1 Vet. App. 308, 312-313 (1991) (where a law or regulation changes while a claim is pending, the version most favorable to the claimant is applicable only if there is no indication of contrary congressional intent). According to the statutory and regulatory provisions and case law cited above, in order for the veteran to satisfy his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim under 38 U.S.C.A. § 1151 is well grounded, the record must contain medical evidence establishing that the veteran has additional disability as the result of an injury sustained during his VA hospitalization from August 1993 to September 1993, irrespective of fault. In this case, as explained below, the veteran has not submitted this type of evidence. Prior to hospitalization by the VA in August 1993, when the veteran allegedly sustained an injury to his skull and neck, the veteran complained of back pain and headaches. However, these complaints were lodged from March 1961 to May 1963, when the veteran was on active service. On August 16, 1993, the veteran was admitted to a VA addiction treatment program. On nursing admission, he reported that he had a bad back that necessitated monthly visits to a chiropractor. During a physical evaluation the same day, he reported low back pain secondary to lifting weights and an examining physician noted complaints of intermittent spine pain. A radiology report dated the next day reveals that the veteran had a mild to moderate degenerative change of the spine. On August 23, 1993, the veteran reported to staff that, during the prior day, he had fallen out of a chair and been hit by it, and as a result, had a sore and uncomfortable back. An incident report dated this day confirms the veteran's report of a fall from a chair in the lounge and a blow to the back of his neck. As well, it discloses that the veteran sustained no residuals of that injury or disability as a result of the incident. From August 23, 1993 to September 3, 1993, the veteran reported that his neck ached and that he had headaches, general body aches and stiffness. The staff prescribed Tylenol once or twice daily for these complaints. During a discharge evaluation conducted on September 3, 1993, the examining physician did not mention the veteran's fall from the chair or diagnose any neck, left arm or left shoulder disorders or headaches. In May 1994, the veteran twice sought treatment from a chiropractor for stiffness and pain in his neck, left shoulder and lower back. He reported that: he had injured his neck 20 years prior to his visit, when he dove into a swimming pool and jammed his neck; he was evaluated at a clinic for this injury and released with no findings; and he had been complaining of low back pain for 20 years and saw a chiropractor for these complaints when he lived in California. Based on objective and x-ray findings, the chiropractor noted: ligamentous instability at C4-5; anterior degenerative change of the C5 vertebral body; disc space narrowing at C5-6; significant degenerative changes at C5-6 articulation; post-traumatic degenerative changes in the cervical region; and a compression fracture at C5. The veteran sought left shoulder treatment from a private provider in April 1995. He reported that he had been having pain in his left arm and shoulder for one month. A physician's assistant conducted an evaluation and diagnosed left cervical spasm with radicular symptoms. In 1997, the veteran was seen regularly and participated in physical therapy for neck, left arm and left shoulder disorders and headaches. During several of these visits, he reported neck and left arm pain of four years' duration secondary to a fall. From March 1997 to July 1997, several tests were conducted including a cervical myelogram, x-rays, computed tomography scans, magnetic resonance imaging, and an electromyograph. These tests revealed vertebral and apophyseal degenerative changes at the mid cervical spine; encroachment on the right at C5-6; poor filling on the right at the C4-5 root sheath; cervical canalicular stenosis; multilevel foraminal stenosis; marked disk degeneration with osteophytic spurring at C5-6; slight effacement of the right aspect of the cord at C5-6; and very mild sensory median and ulnar non-localizable neuropathies on the left. In March 1997, an examining physician noted that the veteran had an old vertebral fracture and straightening of the cervical curvature with loss of facets. The aforementioned records confirm that the veteran fell out of his chair and sustained a head and neck injury in August 1993, during a VA hospitalization. However, it was recorded in an incident report that he had no residuals of an injury or disability the day after the fall. While the veteran was given medication for pain for approximately two weeks following the incident, during a discharge evaluation conducted on September 3, 1993, the examining physician did not mention the veteran's fall from the chair or diagnose any neck, left arm or left shoulder disorders or headaches. Following his discharge from the VA hospital in September 1993, the veteran received treatment for neck, left arm and shoulder complaints and headaches, but this was some time after the incident in question (including twice in 1994, once in 1995 and regularly in 1997) and there is no medical evidence or opinion in these treatment records that supports a finding that the veteran suffered additional disability as a result of the injury sustained during the August 1993 to September 1993 VA hospitalization. While there is medical evidence of treatment for neck, left arm, left shoulder symptoms and headaches from 1994 to 1997, the medical evidence does not show that this treatment was necessitated by the August 1993 fall. It is pertinent to note that an X-ray examination performed several days before the August 1993 injury showed mild to moderate degenerative changes of the spine, and that the veteran has a history of a neck injury in approximately 1974, when he dove into a swimming pool and jammed his neck. In fact, this was the only history of an injury provided when he was initially seen after the hospitalization in question. X- rays of the cervical spine at that time (May 1994) showed evidence of an old fracture at C-5 and degenerative disc disease. When he sought treatment in April 1995, he said that he had had pain in his left shoulder and arm for one month. It was not until 1997 or approximately four years after the 1993 VA hospital injury that he began attributing his symptoms to that incident. In any event, in the absence of any medical opinion suggesting that the veteran sustained additional disability as the result of the injury in August 1993, the claim must be denied as not well grounded. The veteran is a layman with no medical training and expertise; therefore, his statements, alone, do not constitute competent evidence linking any additional disability to the fall that occurred during the August 1993 to September 1993 VA hospitalization. Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992) (holding that laypersons are not competent to offer medical opinions). Inasmuch as the record does not contain medical evidence establishing that the veteran has additional disability as a result of the injury sustained during the August 1993 to September 1993 VA hospitalization, the Board finds that the veteran's claim must be denied as not well grounded. The veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim; therefore, the VA has no duty to assist him in developing the facts pertinent to his claim. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). The Board is not aware of the existence of additional evidence that might well ground the veteran's claim; therefore, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a). McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim and to explain why his current attempt fails. ORDER Compensation under the provisions of Title 38, United States Code, Section 1151, for neck, left arm and left shoulder disorders and headaches, as a result of hospitalization from August 1993 to September 1993 by the VA, is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals