Citation Nr: 0003525 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 96-08 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a decubitus ulcer in the coccygeal area, to include pain and loss of mobility, as the result of treatment by the Department of Veterans Affairs in 1991. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Appellant and T. S. ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from June 1969 to June 1971. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in July 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In June 1997, the Board remanded this case to the RO. The case was returned to the Board in August 1999. FINDING OF FACT There is no competent medical evidence that VA medical care in 1991 caused the veteran to suffer any additional disability. CONCLUSION OF LAW A claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a decubitus ulcer in the coccygeal area, to include pain and loss of mobility, as the result of VA treatment in 1991 is not well grounded. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Title 38, United States Code, Section 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospitalization, or medical or surgical treatment, compensation shall be awarded in the same manner as if such disability were service connected. Amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 require a showing not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. However, those amendments apply only to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg. 31263 (1998). Therefore, as the veteran filed his claim prior to October 1, 1997, the only issue before the Board is whether he has suffered additional disability as a result of VA treatment in 1991. A person who submits a claim for VA benefits 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). Where the determinative issue involves medical causation or a 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, 494-5 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that there are three requirements to establish a well-grounded claim under the provisions of 38 U.S.C.A. § 1151. First, there must be medical evidence of a current disability. Second, there must be medical evidence, or, in certain circumstances, lay evidence, of incurrence of an injury or aggravation of an injury as the result of VA hospitalization or medical or surgical treatment. Third, there must be medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v West, 12 Vet. App. 460, 464 (1999). In the veteran's case, the record discloses that he is a quadriplegic as the result of injury sustained in a postservice motor vehicle accident. The issue before the Board relates to a decubitus ulcer which was observed by a nursing assistant of a private home health care service, which had a contractual relationship with VA. The presence of the decubitus ulcer was documented on August 14, 1991. Ultimately, the veteran was admitted to the VA Medical Center, Hines, Illinois, on October 7, 1991, for treatment of the ulcer. In November 1991, he underwent debridement of a sacral pressure sore and reconstruction using a local fascial cutaneous rotational flap. He has alleged that he has residual disability, including limitation of the amount of time which he is able to sit up in a wheelchair, because a VA nurse practitioner, who had supervisory authority over the private home health care agency, could have, but did not, take action to prevent the necessity for surgery. In November 1998, the chief of the Spinal Cord Injury Service at the VA Hospital, Hines, Illinois, reviewed all pertinent documentation, including the veteran's medical records, and reported as follows: (The veteran) is a C-6 level quadriplegic. He is dependent upon others to perform his daily care. He must carefully monitor the state of his skin and request bed rest at the first sign of pressure related skin abnormality. We train all our spinal cord injury patients in skin care/monitoring and instruct them in the importance of pressure releases and visual inspection of the skin. Pressure sores, however, are still the major reason for long hospital stays in the spinal injury. There is no evidence that (the veteran's) injury became worse, only that his skin did not tolerate how (he) treated it. He was used to sitting long hours and did not provide enough pressure relief to prevent the resulting skin breakdown. He was initially kept at home on bed rest when we became aware of the sore and was instructed to be admitted for inpatient treatment of his sores. The treatment of his pressure ulcers were appropriate and to the standard of spinal cord injury care. One was treated successfully with surgery and the others healed with maintenance of pressure relief. He was discharged 1/10/92 with his sores healed and sitting 1-2 hours a day. The only causal relationship was his spinal cord injury. (Emphasis supplied). As noted above, a well-grounded claim under 38 U.S.C.A. § 1151 requires medical evidence of a nexus between VA treatment and additional disability. Such evidence is lacking in this case. There is no medical evidence that VA treatment caused the pressure sores. Indeed, the Chief of the Spinal Cord Injury Service seems to be saying that the occurrence of such sores is a natural part of the condition experienced by a quadriplegic and that the patient bears responsibility to monitor and care for pressure sores. In this connection, the Board notes that, when the proximate cause of an injury is the veteran's failure to follow instructions (such as with wound care), it will bar him from receipt of compensation under 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.358 (c)(4). The point is, however, that the current medical evidence does not suggest that VA treatment or the lack of it, assuming the VA had a duty in this regard, caused the veteran's pressure ulcers. If the veteran is able to obtain such evidence, he may submit it in an attempt to reopen his claim. In conclusion, as the veteran's claim for compensation under 38 U.S.C.A. § 1151 is being denied on the basis that there is no medical evidence that VA treatment of the veteran's quadriplegia caused any additional disability. 38 U.S.C.A. § 5107(a); Jones. The VA hospital reported to the RO in August 1998 that all outpatient notes from August 1, 1991, to November 30, 1991, were being provided to the RO, which did not include VA home health care service notes, as had been requested by the Board in the June 1997 remand. Evidently, those records are unavailable or do not exist. The veteran and his representative have not alleged that those records would make his claim well grounded and, therefore, failure to obtain them was not prejudicial to him. The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for compensation under the provisions of 38 U.S.C.A. § 1151. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a decubitus ulcer in the coccygeal area, to include pain and loss of mobility, as result of treatment by the Department of Veterans Affairs in 1991 is denied. BRUCE KANNEE Member, Board of Veterans' Appeals