Citation Nr: 0732669 Decision Date: 10/17/07 Archive Date: 10/26/07 DOCKET NO. 04-13 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for swelling and weakness of the legs secondary to VA-prescribed medication. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from December 1953 until November 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. This matter was previously before the Board in December 2006. At that time, a remand was ordered to accomplish additional development. FINDINGS OF FACT The competent evidence fails to demonstrate that swelling and weakness of the legs has causally resulted from VA treatment, including the prescription of Atenolol and Fosinopril. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for swelling and weakness of the legs have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2006); 38 C.F.R. § 3.358 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of a January 2007 letter from the agency of original jurisdiction (AOJ) to the appellant. The letter informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also instructed him to submit any additional evidence to VA. Such notice did not inform the veteran of the law pertaining to effective dates. However, such notice was provided in a May 2007 supplemental statement of the case. Regarding the timing of notice, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided prior to the issuance of appropriate VCAA notice. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to assist With regard to the duty to assist, the claims file contains the veteran's reports of VA post service treatment. Additionally, the claims file contains the veteran's own statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Further regarding the duty to assist, the claim was previously remanded in December 2006 for the purpose of attempting to obtain treatment records from Russell County Jail. In the January 2007 notice letter discussed above, the veteran was asked to complete a VA Form 21-4142 authorizing the release of records from that facility. The veteran did not submit this information as requested. In this regard, the Board observes that VA's duty to assist is not a one-way street; the veteran also has an obligation to assist in the adjudication of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Discussion The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. The veteran is claiming entitlement to compensation under 38 U.S.C.A. § 1151. Specifically, he contends that drugs prescribed by VA have caused residual swelling and weakness in his legs. In a March 2002 communication, he identified the drug in question as Atenolol. In his substantive appeal submitted in February 2004, he identified the harmful drug as Fosinopril. In analyzing claims under 38 U.S.C.A. § 1151, it is important to note that the law underwent revision effective October 1, 1997. In this case, the veteran filed his § 1151 claim in March 2002. Accordingly, the post October 1, 1997 version of the law and regulation must be applied. See VAOPGCPREC 40- 97. In pertinent part, the current version of 38 U.S.C. § 1151 reads as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service- connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- "(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable." The Board finds no support for a grant of compensation under 38 U.S.C.A. § 1151, as will be explained below. A February 2002 VA outpatient treatment report does reveal a finding of bilateral tender pitting edema with purplish/redness extending up to the bilateral thighs. The examiner was unable to palpate pulses as the area was painful to the touch. Based on the above, the evidence substantiates the veteran's claims of bilateral leg swelling. However, such swelling is not shown to constitute a qualifying additional disability for which compensation could be granted under 38 U.S.C.A. § 1151. Again, to be considered a qualifying additional disability, the evidence must show that the veteran's bilateral leg swelling was not the result of the veteran's willful misconduct and that it was caused as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA in furnishing hospital care, medical or surgical treatment, or examination. See 38 U.S.C.A. § 1151(a). Here, the VA examiner in February 2002 attributed the veteran's bilateral leg edema to cirrhosis of the liver. A history of alcohol and drug abuse was noted. In this regard, the Board calls attention to 38 C.F.R. § 3.301(c)(3), which provides that although the isolated and infrequent use of drugs by itself will not be considered willful misconduct, the progressive and frequent use of drugs to the point of addiction will. 38 C.F.R. § 3.301(c)(3) (2007). From the foregoing, then, it would appear that the veteran's request for compensation under 38 U.S.C.A. § 1151 would be precluded since the evidence indicates that the disability in question, swelling of the legs, was caused by alcohol abuse that appears to meet the requirements of willful misconduct under 38 C.F.R. § 3.301(c)(3). However, even if the evidence could be favorably construed so as to avoid a finding of willful misconduct, the criteria for compensation under 38 U.S.C.A. § 1151 have still not been satisfied here. Indeed, the claims folder contains no competent evidence to show that the veteran's bilateral swelling and weakness of the legs was caused by Atenolol, Fosinopril, or any other VA- prescribed medication, and that such prescription represented carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. To the contrary, the competent evidence demonstrates that the veteran's leg swelling was caused by his cirrhosis of the liver. There is no competent finding of any VA fault relating to the veteran's swelling of the legs, nor is there evidence to show that the proximate cause of the bilateral leg edema was an event not reasonably foreseeable. The veteran himself believes that his bilateral edema and weakness of the lower extremities was the result of medication prescribed by VA. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, there is no basis for a grant of compensation under 38 U.S.C.A. § 1151. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 is denied. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs