Lead Opinion
HOLDAWAY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a concurring opinion.
The appellant, Frank Jimison, appeals a January 1998 decision of the Board of Veterans’ Appeals (BVA or Board) which denied compensation for a right knee condition under 38 U.S.C. § 1151. Both parties have filed briefs. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board.
I. FACTS
The appellant served on active duty in the U.S. Navy from August 1950 tо June 1954. In May 1993, the appellant underwent right knee surgery at a VA medical facility. The appellant’s condition was not service connected nor does the appellant so contend. His physician, Dr. Due Nguyen, stated in his oрeration report that the “procedure went well” but that the appellant should “continue in physical therapy.” After surgery, the appellant received therapy from a VA clinic. In October 1994, VA informed the appellant that his physical therapy could not continue because his income level disqualified him from further treatment. After receiving this letter, the appellant requested that he be allowed to finish his physical therapy relating to his surgery. At this time, he alleged that he was experiencing more problems with his knee after surgery than he did before surgery. A VA regional office (VARO) treated this letter as a claim for compensation under 38 U.S.C. § 1151.
In April 1995, the VARO denied his claim for сompensation. The appellant then appealed this decision to the Board. In support of his appeal, the appellant submitted medical treatment records following his May 1993 surgery. These records indicаted that his knee was often swollen and painful upon examination. In June 1996, the appellant wrote a letter to the VARO which stated:
*77 My main complaint in all of this is that I have never been given proper rehilbilitation [sic] care for my knee surgery. After the surgery while Doctor Gee was still alive and I saw him, I complained that I still was having difficulty with the use of my leg. On visits after that I told each doctor I saw (which by the way was for about five minutes each time) that I was still having difficulty in using my leg.
A shоrt time after my last visit which was in Sept, of 1993, I was notified that I was no longer eligible for care at the hospital. This to me was wrong because you do not stop treating someone in the middle of a condition just because his income level changed. I can see it for any other treatment but the one that was in progress should have been completed first. I never received proper care after surgery and I believe that was the cause of my problems now with my knee.
In January 1997, VA provided the appellant with a medical examination by Dr. R. Eugene Bass to determine whether or not the VA medical treatment caused an additional disability. After reviewing the appellant’s mеdical records, Dr. Bass concluded:
[I]t appears his attending physician wanted him to have more therapy but because of his financial classification, he was told he was not eligible for further therapy. If his physician did indeed recommend that he have further therapy, then it appears perhaps the results could have been sub-optimal secondary to his not receiving the recommended treatment.
On appeal, the Board cоncluded that the appellant had failed to present a well-grounded claim for compensation under 38 U.S.C. § 1151 because he had failed to submit any medical evidence to establish that he had incurred an additional disability аs a result of VA medical care. The Board opined that “sub-optimal” results in postoperative recovery did not mean that the appellant had incurred an additional disability as required by the applicable statutе.
II. ANALYSIS
A. 38 U.S.C. § 1151
Compensation for injuries incurred or aggravated by VA medical care is awarded pursuant to 38 U.S.C. § 1151. At the time the appellant filed his claim, this section stated:
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 under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran’s own willful misconduct, and such injury or aggravation results in the additional disability to or the death of such veteran, disability or death compensаtion under this chapter ... shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.
38 U.S.C. § 1151 (1991). For claims filed prior to October 1, 1996, a claimant is not required to show some element of fault on the part of VA. See Brown v. Gardner,
Under 38 U.S.C. § 5107(a), all claimants seeking compensation, including those seeking compensation under 38 U.S.C. § 1151, have the initial burden of showing that their claim is well grounded. Ross v. Derwinski,
(1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-currence or aggravation of an injury as the result of hospitаlization, 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.
Jones v. West,
As with any other well-grounded claim, “where the determinative issue involves medical causation or medical diagnosis, compеtent medical evidence to the effect that the claim is ‘plausible’ or ‘possible’ is required.” Grottveit v. Brown,
In this case, the аppellant has failed to furnish a well-grounded claim because he has failed to submit any evidence to establish a relationship between his VA medical care and any additional disability. Although the Board found that the apрellant had failed to establish that he had incurred an additional disability, the Court will assume for the purposes of this argument that the appellant had incurred an additional disability or aggravated his knee condition for which he sought treatment. Nonetheless, the only competent medical evidence probative of the issue as to whether there is a causal relationship between the VA medical care and the appellant’s additional disability is the opinion of Dr. Bass. Essentially, Dr. Bass stated that it is possible that the appellant may not have fully recovered from his knee surgery because VA discontinued the appellant’s treatment on account of his financial status. However, Dr. Bass’ report does not provide a nexus between the VA medical care and the appellant’s additional injury. Rather, Dr. Bass implies that the VA adjudicative determination that the appellant was no longer eligible to receive VA medical care and the appellant’s failure to seek private medical treatment once his VA medical benefits had been terminated caused his alleged additional disability.
Of cоurse, a VA adjudicative decision is not VA medical treatment. If the appellant is not eligible to receive VA medical care, then he is not entitled to receive such care, even if he is currently receiving therapy for a procedure which occurred when he was eligible to receive VA medical care. Once the appellant is no longer eligible to receive VA medical care, then the Secretary cannot be responsible for any future medical care or lack thereof. In this case, when the appellant was informed that he was no longer entitled to VA medical care, it was his responsibility to seek therapy from another source. The adjudicative decision of the VARO, therefore, cannot con
In his brief, the appellant argues that his claim is well grounded under the doctrine of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober,
B. Duty to Assist
Furthermore, the appellant argues that the Board failed to ensure that the appellant received an adequate medical examination pursuant to the duty to assist. See 38 U.S.C. § 5107(a). However, it is well еstablished that the duty to assist does not apply until the appellant has submitted a well-grounded claim. See Anderson v. Brown,
III. CONCLUSION
After consideration of the pleadings and a review of the record, the Court holds that the appellant has not demonstrated that the Board committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the Board’s decision fulfills the “reasons and bases” requirements of 38 U.S.C. § 7104(d)(1). See Gilbert v. Derwinski,
Concurrence Opinion
concurring:
I join in the Court’s opinion and write separately only to clarify the scope of the following statement in the opinion: “Of course, a VA adjudicative decision is not VA medical treatment.” Ante at 78. By making that statement, the Court is not holding that a medical decision to discontinue VA treatment could not form the basis for a well-grounded claim under the pre-October 1997 version of 38 U.S.C. § 1151 applicable to this case. That is a matter not before us today because here there is no evidence that there was a medical decision to terminate therapy— only an administrative decision the results of which are not covered by section 1151.