Citation Nr: 1447138	
Decision Date: 10/23/14    Archive Date: 10/30/14

DOCKET NO.  12-01 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California



THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for methicillin resistant staphylococcus aureus (MRSA) (claimed to have resulted from VA medical treatment provided in April through June 2007.



REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs



ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1975 to October 1979 and from December 1979 to June 1995.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Oakland, California RO.  In December 2013, the matter was remanded for additional development.


FINDING OF FACT

The Veteran's MRSA is not shown to have been causally related to her April through June 2007 VA medical treatment.  


CONCLUSION OF LAW

The criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 are not met for MRSA claimed to have resulted from VA treatment in April to June 2007.  38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2013) have been met.  By correspondence dated in February 2010, VA notified the Veteran of the information needed to substantiate and complete her claim, to include notice of the information that she was responsible for providing and of the evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards.  The claim was readjudicated in a May 2014 supplemental statement of the case.   

Records of the treatment at issue have been obtained.  The AOJ arranged for VA examinations and medical opinions in this matter based on records review in August 2010 and January 2014.  The Board finds that cumulatively these are adequate for rating purposes; the providers' opinions reflect familiarity with the record, and the opinions include rationale that cites to factual data and medical principles.  See Barr v. Nicholson, 21 Vet. App. 303 (2007)  The Veteran has not identified any additional pertinent evidence or information.  Accordingly, the Board will address the merits of the claim. 

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 

When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.  To establish entitlement to benefits under 38 U.S.C.A. § 1151, the veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable.  See VAOPGCPREC 40-97. 

To determine whether additional disability exists, VA compares the veteran's physical condition immediately prior to the beginning of medical or surgical treatment to the Veteran's physical condition after such care has ceased.  38 C.F.R. § 3.361(b).  To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the veteran's additional disability.  Merely showing that a veteran received care, treatment, or examination and that the veteran has additional disability does not establish cause.  38 C.F.R. § 3.361(c). 

To establish that fault on the part of VA caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent.  38 C.F.R. § 3.361(d). 

When evaluating the evidence of record, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends she acquired MRSA as a result of VA outpatient treatment in April through June 2007.  Her claim for compensation under 38 U.S.C.A. § 1151 was received in November 2009. 

Historically, VA treatment records reflect that in April 2007, the Veteran complained of a sore throat for a week as well as a cough and sore mouth and gums.  Erythromycin stearate was prescribed to combat the upper respiratory infection.  The Veteran reported that after she completed the antibiotic course, the symptoms returned; she again complained of sore throat, congestion, sneezing, coughing up green sputum, and feeling feverish and cold off and on.  The assessment was recurrence of sinusitis/bronchitis, and ciprofloxacin was prescribed.  Ten days later the Veteran complained of itching lesions on her trunk, under her arms, and in the pubic area, for one week; the lesions were round and red with pustules in the center.  She was advised to wash daily with soap and water and apply antibiotic ointment.  The lesions worsened and were soon reported to appear infected.  She was again advised on cleansing and using antibiotic ointment.

The Veteran's MRSA was first diagnosed in June 2007.  She was noted to have multiple pustules on her trunk.  She had been treated with multiple antibiotics from different classes for upper respiratory symptoms.  She had tried antibacterial soap and Neosporin but had not been consistent in use.  Physical examination revealed multiple erythematous ulcers and nodules on her trunk.  The assessment was furunculosis, most likely MRSA.  The diagnosis of MRSA was confirmed by culture.  Subsequent treatment records reflect assessments of recurrent multiple MRSA furunculosis.

In her November 2009 claim, the Veteran contended that she developed MRSA due to VA medical treatment with antibiotics in early 2007.  She stated that she had symptoms of sore throat, earache, and sinus infection, and she sought treatment at the clinic where she was prescribed three different antibiotics.  She stated that, after taking the third antibiotic, she began getting pimple-like bumps that grew bigger and worse.  She developed other symptoms of extreme fatigue, listlessness, and painful muscles and joints, and after seeking treatment for these symptoms, MRSA was diagnosed.

On August 2010 VA examination, the examining dermatologist noted that the Veteran claimed rashes and pustules as a result of MRSA infection.  She reported the onset of painful boils on the abdomen, suprapubic region, and lower extremities in June 2007.  The examiner noted that, according to a September 2007 treatment note, the Veteran was treated with Augmentin followed by moxifloxacin, with no initial improvement; subsequent cultures obtained in June 2007 revealed MRSA (sensitive to Bactrim, moxifloxacin, vanco, rifampin, clindamycin, resistant to erythromycin).  The Veteran was started on Bactrim DS twice daily, increased to three times per day in August 2007, as well as mupirocin ointment to the nares and the MRSA decolonization protocol, and the furuncles gradually resolved.  In July 2007, chlorhexidine wash was also prescribed, and the nares were recultured off antibiotics and found to be negative for MRSA.  She reported intermittent MRSA flares since then, approximately 4 to 5 times per year, and reported that approximately 1 to 3 furuncles appeared on the abdomen and thighs during such episodes.  She resumed Bactrim at the first sign of recurrence, which appeared to greatly help reduce the number of furuncles which would develop as well as speed resolution.  She also reported intermittent rashes in the bilateral axillae groin regions and below the pannus, which developed after the initial MRSA furunculosis episode (and which she believed were related).  She had been prescribed a topical anti-yeast agent (nystatin/triamcinolone cream) which controlled the intertrigo.  The Veteran's current treatment included chlorhexidine wash daily and resuming Bactrim twice daily for 7 to 15 days at the first signs of recurrent furunculosis.  She was also on Mycolog cream for intertrigo and reported using the medication daily.  She reported having had to use systemic antibiotics approximately four times in the previous year.  She reported that her recurrent MRSA furunculosis episodes were associated with low grade fever and worsening of her chronic night sweats.

On physical examination, the Veteran's total body skin examination was relevant for three anetoderma-like scars measuring 0.5 - 1 centimeter on the abdomen and right thigh at sites of prior furuncles, per her report.  The bilateral axilla demonstrated symmetric faintly erythematous thin plaques consistent with intertrigo.  No furuncles were present.  The diagnoses included MRSA furunculosis diagnosed in June 2007, with apparent recurrent episodes on the trunk and extremities occurring 4 to 5 times per year since that time, well controlled on current topical and systemic regimen; and intertrigo with minimal to no activity on examination and no evidence of candidosis, well controlled on current topical medications.  

The examiner noted the Veteran's contention that both skin conditions resulted from the initial use of antibiotics given by her local VA providers to treat furunculosis.  However, the examiner opined that, given the worldwide prevalence of community-acquired MRSA skin infections in the last 5 years, it is unlikely that the claimed disability was caused by or became worse as a result of the VA treatment at issue, or that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel.  The examiner did not believe that the Veteran's intermittently recurrent MRSA furunculosis resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider and/or failure on the part of the VA to timely diagnose and/or properly treat the claimed disease, although delay in initiating appropriate (or adequate dosage of) antibiotics may have allowed the skin condition to continue to progress.  The examiner noted that, according to the Fresno VAMC records, the Veteran's MRSA was sensitive to moxifloxacin, which was administered early in her disease course, although a higher dose and prolonged course of Bactrim was ultimately necessary for initial clearance of her skin infection.  The examiner opined that the Veteran's intertrigo is more likely related to her obesity and chronic maceration and moisture from chronic occlusion of skin folds, and this condition would not be caused by MRSA furunculosis or antibiotics used to treat MRSA.  The examiner opined, based on review of the medical records, physical examination, and history per the patient, that the MRSA furunculosis and intertrigo are not caused by or a result of the use of a short course or prior antibiotics, to which the MRSA furunculosis did not initially respond.  The examining dermatologist suggested that additional input from infectious disease specialists regarding mechanisms and timing of antibiotic resistance and the high prevalence of community acquired MRSA infections may be useful.

In December 2013, the Board remanded the matter to obtain a medical opinion from an infectious disease specialist.  The provider was asked to opine whether it is as likely as not that a) the Veteran's MRSA resulted from treatment prescribed by VA, specifically antibiotic treatment; whether the MRSA infection is a reasonably foreseeable result of treatment received by the Veteran; whether the Veteran developed MRSA as a result of her own willful conduct; and whether prescribing such treatment was careless, negligent and an error in judgment, or some similar instance of fault on part of the VA.  

Upon review of the record, in January 2014 the consulting provider opined "briefly no" to each question and then opined "less likely than not for all four questions".  The provider noted that the claims file and the prior (April 2010) opinion were reviewed and that the case was discussed with three infectious disease experts before the opinion statement was drafted.  The consulting physician provided a few clarifications:  1) MRSA is not the direct result/consequence of antibiotic treatment in a specific case.  It is the result of widespread use of antibiotic use over the years.  Staph bacteria, like all bacteria, learn to mutate and adapt and over the years developed resistance to the commonly used antibiotic for staph, which is methicillin.  The examiner noted that most lay people confuse MRSA with Clostridium Difficile, in which diarrhea occurs following antibiotic use, and that is not true of MRSA.  2) MRSA, which first was localized to hospitals, is now widespread and rampant in the community.  3) The Veteran's MRSA was typical of community acquired MRSA which typically manifests as skin lesions.  The provider cited excerpts from medical journals in support of these clarifications.  It was noted that the Veteran is classified as morbidly obese, with a body mass index over 42, and that skin infections are common in such cases.  It was further noted that the Veteran presented with boils/furunculosis in 2007 and treated with antibiotics, which is the standard of care; a subsequent culture showed MRSA and was adequately treated with appropriate antibiotics; a nasal swab culture, which is the standard of care of testing for MRSA carrier status, was done in February 2011 and was negative.  The provider observed that the use of antibiotics in a specific individual for an appropriate infection is not known to cause MRSA.  The provider indicated that no one can predict which infection is due to MRSA and which is not without a culture.  The provider opined that the Veteran did not contact community acquired MRSA (CA-MRSA) due to her own willful misconduct; that all treatment provided by VA has been appropriate and met the standard of care; and that most physicians would provide the same care.  

The Veteran essentially alleges that she is entitled to benefits under 38 U.S.C.A. § 1151 because she has additional disability (including MRSA) following treatment for an upper respiratory infection at a VA facility in 2007.  To establish entitlement to benefits under 38 U.S.C.A. § 1151, she must show each of the following: (a) the disability or additional disability claimed; (b) VA treatment; (c) a nexus between the additional disability and the VA treatment; and (d) that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable. 

While the Veteran has satisfied requirements (a) and (b) of those listed above, requirements (c) and (d), i.e., a causal relationship between the MRSA and the April to June 2007 VA medical treatment (multiple courses of antibiotics) and fault on the part of the VA or that the disability was an event not reasonably foreseeable, are not.  Specifically, the preponderance of the evidence is against a finding that there was a causal relationship between the VA medical treatment provided and the Veteran's MRSA and competent medical evidence established that there was no fault on the part of VA in the treatment provided.   The threshold (and dispositive in this case) factor is the lack of a nexus between the VA treatment provided and the Veteran's MRSA infection.  In that regard in August 2010 and January 2014 VA medical providers explicitly opined that there is no medical support for the Veteran's contentions as MRSA is not known to result from specific courses of antibiotic treatment.  These opinions are by medical professionals competent to provide them, cite to supporting factual data, and explain the underlying rationale which cites to current medical knowledge; hence, they are probative evidence in this matter.  As there is no competent (medical opinion) evidence to the contrary, the Board finds them persuasive. 

The Veteran's own assertions that she acquired MRSA as a result of the April to June 2007 VA treatment she received for upper respiratory infection have no probative value.  While she is competent to observe that her MRSA symptoms appeared after the April through June 2007 treatment (and the Board finds no reason to question such observation and accepts it as factual), all she establishes by such observations is a coincidental (and not a causal) relationship.  See 38 C.F.R. § 3.361(c).  Whether or not an infection such as MRSA resulted from medical treatment such as that provided by VA in April through June 2007 is a complex medical question, and the Veteran is a layperson.  She does not support her allegations by citation to medical texts or treatises (indicating or suggesting that MRSA may result from treatment such as VA provided), and has not presented any supporting medical opinions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board).  In summary, as a legal requirement for substantiating a claim under 38 U.S.C.A. § 1151, evidence that a claimed disability is causally related to the VA treatment in question, is not met; the claim seeking benefits under 38 U.S.C.A. § 1151 for MRSA claimed as due to VA medical treatment must be denied.




ORDER

The appeal seeking entitlement to compensation under 38 U.S.C.A. § 1151 for MRSA, claimed to have resulted from VA medical treatment in April through June 2007, is denied.



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs