Citation Nr: 0006824 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-03 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to Department of Veterans Affairs (VA) compensation benefits pursuant to 38 U.S.C.A. § 1151 (Supp. 1998) for L2-3 herniated nucleus pulposus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from April 1963 to March 1967. The VA Regional Office (RO) denied the veteran VA compensation benefits pursuant to 38 U.S.C.A. § 1151 for L2-3 herniated nucleus pulposus in December 1997, and the veteran appealed. He presented testimony during a hearing which was held at the RO in January 1998. FINDINGS OF FACT 1. The veteran fell as a result of VA hospitalization when he slipped on water that was on the floor near a hospital water fountain on September 8, 1997. 2. As a result of the fall during VA hospitalization, the veteran incurred a herniated nucleus pulposus at L2-3. CONCLUSION OF LAW The criteria for VA compensation benefits pursuant to 38 U.S.C.A. § 1151 for L2-3 herniated nucleus pulposus have been met. 38 U.S.C.A. §§ 1151, 5107(b) (West Supp. 1998); 38 C.F.R. §§ 3.102, 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking entitlement to VA compensation benefits pursuant to 38 U.S.C.A. § 1151 based on his contention that he slipped and fell on September 8, 1997 in a VA hospital ward. The event, he states, occurred during his VA hospitalization, which commenced on September 8, 1997, to have a sleep apnea study conducted. In the interest of clarity, the Board will describe the factual background of this case; review the relevant law and regulations; and then render an analysis of the claim. Factual background VA and private medical records predating August 1997 show that over the years, the veteran had had multiple spine surgeries, and that he had cervical spine and lower lumbar and lumbosacral spine disability. There is evidence which indicates that he had disability in the in the lumbosacral spine at L3-4 and more distally. Additionally, the veteran had bone spurs at the L2-3 and L3-4 level, by X-ray. A November 1987 private medical record notes that X-rays showed some evidence of diseased discs at the L4-S1 level, significantly narrowed L4-5 and L5-S1 disc spaces, and bone spurs at L2-3 and L3-4 suggestive of more proximal disc disease. A September 8, 1997 VA medical certificate indicates that the veteran was seen at 07:55. He did not complain of back pain. He was being seen for medication refills for his right knee and degenerative joint disease of his neck. He reported that he was using Tylenol. A physical examination was conducted. Knee and cervical spine problems were diagnosed, but a lumbar spine problem was not, and medication was refilled in light of the problems diagnosed. A September 8, 1997 nurse's note states that the veteran was to be admitted to the ambulatory medicine unit to rule out sleep apnea. A September 8, 1997 VA abbreviated medical record indicates that the veteran was admitted to the hospital that day for a sleep apnea test which was to occur overnight. No back complaints were noted as the cause of admission. A detailed September 9, 1997 rehabilitation clinic medical record states that the veteran had a prior medical history of back surgeries times five, with a fusion in 1976, and that he had been pain free since then. The night before the rehabilitation clinic note was written, the veteran was in the hospital for an overnight sleep apnea study, and he slipped on water. He landed on his buttocks, with his legs going in different directions. He complained of low back pain with numbness in his right buttock to his foot. Clinically, he had some decreased lower extremity strength due to the injury causing increased pain in his back, and he was unable to walk on his heels and toes due to pain. The assessment was acute low back pain. After some manipulation techniques were performed by a doctor, the radiation of pain and numbness in the right lower extremity resolved, but mild low back pain persisted. A 17:40 September 9, 1997 VA nurse's note indicates that the veteran's chief complaint was sleep apnea, and that he also had back pain due to a fall which, it was stated, had occurred 24 hours prior to admission. An October 1997 VA medical record states that the veteran was being followed up after sustaining acute back pain. The veteran had had an MRI that day which revealed an L2-3 herniated lateral disc which was apparently new. It was noted that previously documented pathology had been far below this at the L3-4 and L4-5 level. Conservative measures for an acute herniated nucleus pulposus were outlined to the veteran, and he was given medication for the severe pain that he was still experiencing. A November 1997 VA medical record states that the veteran had had problems with low back pain following a fall in September 1997. During a hearing which was held at the RO in January 1998, the veteran testified that he did not injure his back on the day prior to his September 8, 1997 VA hospitalization, and that he had not had any major problems with his back since his surgery in 1976. He further testified that on the evening of September 8, 1997, at about 18:00 or 18:30, he was going to the television lounge at the VA hospital when he slipped on water which he did not see and which was on the floor by a water fountain in the hallway on the way to the lounge. This caused him to fall on the floor and to have a "real sharp pain" in his back. At that point, he went to the nursing desk and reported what occurred. They in turn reported it to housekeeping. About a half hour later, two men from housekeeping came up, mopped up the floor, and put a CAUTION cone there. He was seen for back pain the next morning. About a week later, he saw an orthopedic surgeon who scheduled an MRI. In November 1997, he received his MRI and found out that he had a herniated disc totally separate from the back disability which existed before the hospitalization. The sum and substance of February and March 1998 statements from the veteran was that the September 1997 nursing note saying that he had fallen 24 hours prior to his VA hospital admission was incorrect. Applicable Law and Regulations Well Grounded Claims The threshold question which must be resolved with regard to a claim is whether the claimant has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of pertinent causation is not sufficient; the claimant must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The Court has recently held that the requirements for a well- grounded claim under 38 U.S.C.A. § 1151 parallel those generally set forth for establishing service connection claims , as follows: (1) 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; (2) medical evidence of a current disability; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 12 Vet. App. 460 (1999). 38 U.S.C.A. § 1151 In pertinent part, 38 U.S.C.A. § 1151 provides that when there is no willful misconduct by a veteran, disability resulting from VA hospital care furnished the veteran will be compensated in the same manner as if service-connected if the disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care. See also 38 C.F.R. § 3.358 (1999). Analysis Preliminary matters - well groundedness of the claim/duty to assist/standard of proof Preliminarily, the Board determines that the claim is well grounded. There is competent medical evidence of record of a current L2-3 herniated nucleus pulposus disability, as well as of a nexus between it and the injury which has been alleged to have occurred during VA examination in September 1997. Additionally, there is competent lay evidence of the injury occurring during the hospitalization on September 8, 1997. Lay persons are competent to testify as to events which are within their sensibilities and which do not require medical expertise to understand. Caluza v. Brown, 7 Vet. App. 498, 535 (1995). Since the claim is well grounded, the Board must determine whether VA has fulfilled its duty to assist the veteran as specified in 38 U.S.C.A. § 5107(a). The Board concludes that it has. All evidence which is necessary for a fair and impartial determination of the claim is of record. The veteran's VA hospital records have been associated with his claims folder as have been reviewed and described in pertinent detail above. Accordingly, the claim may be addressed on its merits. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Veterans Appeals stated that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion The facts and the law in this case present three main questions, the first being when (or whether) the injury occurred, the second being whether additional disability resulted from such fall and injury and the third being whether 38 U.S.C.A. § 1151 permits recovery in this slip and fall situation. The Board must give reasons and bases for its conclusions. 38 U.S.C.A. § 7104(d)(1); Sammarco v. Derwinski, 1 Vet. App. 111, 112-14 (1991); Gilbert, 1 Vet. App. at 56-57. In the Board's judgment, after a review of all of the evidence, the injury in question occurred during the evening of September 8, 1997 at about 18:00 or 18:30. At the time of his admission for a sleep apnea test, he admitted to having orthopedic problems, namely his right knee and his cervical spine, but not a lumbar spine problem. Significantly, there were no reported pertinent back complaints or clinical findings on hospital admission. No complaints or physical signs of back impairment were noted to be present at the time of the pre-18:00 medication requests or at the time of any of the other preceding evaluation points during the hospitalization. Next, all but one of the hospitalization records are consistent with the veteran's sworn testimony and his unsworn February and March 1998 statements to the effect that he injured his back on the evening of September 8 in a fall due to water on the hospital floor . All but one of the hospitalization records support the conclusion that the injury occurred in this manner during the hospitalization. These include, particularly, the September 9, 1997 detailed rehabilitation clinic report. The rehabilitation clinic health care provider made a detailed report that indicated that the veteran had been injured the night before. Moreover, history, complaints, and clinical findings reflecting acute low back pain which were recorded at the time of the rehabilitation clinic evaluation were not reported earlier during hospitalization than the alleged injury. The only evidence supporting an injury before hospitalization is an evening September 9, 1997 nurse's note. The note reveals no foundation for the information it provided, is uncorroborated elsewhere, is not consistent with the other evidence, and contains a proven error in stating that the veteran had been taking Tylenol #3 for back pain the day before hospitalization. The evidence shows that the veteran was using plain Tylenol on being hospitalized and that plain Tylenol was what he continued to use before the fall on the 8th, and that it continued to be used after this erroneous nurse's note. The evidence also shows that the plain Tylenol that was being used prior to the fall was being used for the right knee and cervical spine, and not for the lumbar spine. Overall, the veteran's story about not having a back injury before the hospital admission is credible and is corroborated by the evidence. In light of the above circumstances, the Board's conclusion is that the injury in question occurred on September 8, 1997 at about 18:00 or 18:30, as the veteran has asserted. The next question is whether the injury in question caused the L2-3 herniated nucleus pulposus. The circumstantial evidence supports and corroborates the October 1997 VA medical opinion indicating that the veteran's L2-3 herniated nucleus pulposus was probably new. Although it is clear that before the September 1997 hospitalization the veteran had low back problems, these were reportedly at the L4-5 and L5-S1 levels. After the September 1997 hospitalization, the veteran was reported to have had a recent onset of acute back pain which coincided with his injury during hospitalization, and an MRI showed a L2-3 herniated nucleus pulposus. The evidence of record further reflects very little low back treatment for many years, until after the September 8, 1997 injury. The VA physician in October 1997, after reviewing the MRI and noting that there was sudden back pain, indicated that the prior back problems were lower down in the lumbar spine, and that the herniated lateral disc at L2-3 was new. Based upon the entirety of the evidence of record, it appears that the veteran sustained his L2-3 herniated nucleus pulposus at the time of the September 8, 1997 injury. The Board places particular weight of probative value on the statement of the VA physician in October 1997, who felt that the recent injury had caused the L2-3 herniated nucleus pulposus. Finally, the Board must determine whether the slip and fall situation which occurred during the September 1997 hospitalization and the resulting disability is the type of situation for which VA compensation benefits are contemplated by 38 U.S.C.A. § 1151. In other words, are benefits under 38 U.S.C.A. § 1151 limited to the results of VA medical examination and treatment, or may injuries which occur during VA hospitalization but are not associated with hospital treatment, such as the veteran's in this case, be compensated? Research of United States Court of Appeals for Veterans Claims [the Court] decisions which pertain to slip and fall situations revealed Sweitzer v. Brown, 5 Vet. App. 503 (1993). In Sweitzer, the Court affirmed the Board's decision denying § 1151 benefits for a veteran who had claimed that while he was waiting for a VA examination, he went for a walk and ended up reading a bulletin board at the intersection of two corridors. While the claimant in Sweitzer was squatting down to look more closely at an advertisement for an automobile, an unidentified patient in a motorized wheelchair rounded the corner, struck the claimant in Sweitzer in the lower torso, and knocked him to the ground. The Court in Sweitzer held that § 1151 contemplated recovery only for disability resulting from the examination itself, and not also for disability sustained while waiting for an examination. However, a later VA Office of General Counsel Precedent Opinion, VAOPGCPREC 7-97 (Jan. 1, 1997) [the Opinion], is instructive in this regard. The Opinion indicates that there are some analogies between VA's concept of 'resulting from hospitalization' and workman's compensation law, including in the latter's concept of 'arising out of and in the course of employment'. It notes that caselaw on the latter concept provides a general framework for determining whether injuries arose as the result of hospitalization. The Opinion states that if the circumstances or conditions of hospitalization gave rise to the risks out of which the injury arose, the injury may be considered to have resulted from the hospitalization. It states that in making this determination, it is necessary to identify, to the extent possible, the specific cause of the incident causing the injury, and to determine whether that cause is attributable to the circumstances or conditions of the hospitalization. The Opinion states that if the hospitalization creates a zone of danger out of which the injury arose, there would be a basis for concluding that the hospitalization caused the injury. The Opinion further notes that a fall which is caused by the claimant's own inadvertence would not be considered to have resulted from hospitalization. However, where the precipitating cause of the fall may be reasonably attributed to conditions or circumstances of the hospitalization, rather than some circumstance originating with the claimant, the resulting injuries would be said to be the result of hospitalization, rather than the result of some circumstance originating with the claimant. The Opinion cites some examples. It states that if the fall was caused by some unique feature of the hospital premises, such as an unusually steep staircase, poor lighting conditions, or other unique features of the stairwell, the hospitalization would have created the "zone of special danger" out of which the injuries arose. It further states that similarly, if the fall was precipitated when the claimant tripped over some object left on or near the stairs, or slipped on water, grease, or other foreign matter, it might reasonably be concluded that the ensuing injuries resulted from the hospitalization. VAOPGCPREC 7-97 at 10. Last, in pertinent part, the Opinion instructs that in determining whether the injuries suffered in a fall are the result of hospitalization, it is necessary for the factfinder to determine the cause or risks which precipitated the fall and the injuries, and then to determine whether those risks arose from the claimant or from the conditions or circumstances of hospitalization. For the purpose of 38 U.S.C.A. § 1151, it further stated, when the cause of the fall during VA hospitalization cannot be determined, the benefit of the doubt doctrine at 38 U.S.C.A. § 5107(b) may militate in favor of a conclusion that the fall was attributable to the circumstances or conditions of hospitalization. The Board is bound by VA Office of General Counsel Precedent Opinions. 38 U.S.C.A. § 7104. Turning to the facts and the analysis of them in light of the law, here, it is obvious that there was water on the hospital floor when the veteran was walking down the hall, as reflected by the evidence. It is also obvious that he fell. He states, furthermore -- and there is no contradictory evidence -- that he did not see the water on the floor before he slipped on it. Certainly he did not put the water on the floor, so the risk was not a personal one. It is reasonable that the veteran may not have seen the water lying on the floor. There is no evidence that his not seeing the water was due to his own inadvertence. Moreover, it is the hospital's responsibility to prevent zones of special danger from existing. The facts of the case do not indicate how much water was on the floor or how long the water was on the floor before the veteran slipped on it, or how it got there, but the veteran was not at fault for slipping. If the veteran's testimony that it took housekeeping about a half hour to come and mop up the water after he informed the nursing desk about it is true -- and there is no evidence to the contrary on this point -- this delay in cleaning up what was then a known zone of danger speaks of negligence after the fact and raises the suggestion that there might have been negligence on the part of hospital personnel in failing to have the water cleaned up before the veteran fell, and that such negligence might have been the proximate cause of the fall. In light of the above, the hospitalization will be considered to be the cause or risk which precipitated the fall. The only specific evidence on point is the veteran's statements to the effect that he slipped on water in the hallway of the hospital which he was unable to see. In the absence of any other explanation for the fall, the Board will accept the veteran's explanation. Further, the presence of water in a hospital hallway, unmarked by signage at that point, arguably constituted carelessness, negligence or similar fault on the part of VA. See 38 C.F.R. § 3.358 (1999). As noted in the Opinion, under circumstances such as these, the benefit of the doubt rule should be applied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In conclusion, for the reasons and bases expressed above, because the evidence shows an injury as a result of VA hospitalization which caused the current L2-3 herniated nucleus pulposus, compensation benefits pursuant to 38 U.S.C.A. § 1151 for L2-3 herniated nucleus pulposus will be granted. ORDER Entitlement to VA compensation benefits pursuant to 38 U.S.C.A. § 1151 for L2-3 herniated nucleus pulposus is granted. Barry F. Bohan Member, Board of Veterans' Appeals See, in general, Caluza v. Brown, 7 Vet. App. 498 (1995).