Citation Nr: 1304373 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-08 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a methicillin-resistant Staphylococcus aureus (MRSA) infection. 2. Entitlement to service connection for residuals of a December 2007 abdominal aortic aneurysm and surgical repair secondary to a MRSA infection. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1959 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied "service connection" for residuals of a MRSA infection secondary to Guillain-Barré syndrome and residuals of an abdominal aortic aneurysm secondary to residuals of a MRSA infection. In October 2012, the Veteran and his wife testified at a hearing before the undersigned Veteran's Law Judge at the St. Petersburg RO. A transcript of this hearing has been associated with the claims file. The issue previously phrased as service connection for residuals of a MRSA infection secondary to Guillain-Barré syndrome has been recharacterized as shown on the title page to incorporate the theory of entitlement to benefits for residuals of a MRSA infection under the provisions of 38 U.S.C.A. § 1151 (West 2002) raised by the medical evidence of record and the testimony given at the October 2012 Board hearing. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board must consider all claims raised by the appellant or the evidence of record). The issue previously phrased as service connection for residuals of an abdominal aortic aneurysm secondary to residuals of a MRSA infection has also been recharacterized to allow for consideration of a valid theory of entitlement. Id. This recharacterization serves the Veteran's interests and is non-prejudicial given the grant of benefits, discussed below. As discussed further in the decision below, a traditional service connection benefit of the type described in 38 C.F.R. § 3.303 (2012) cannot be granted for disabilities resulting from a § 1151 disability; rather, disability determined to be secondary to a § 1151 disability will be treated "as if" it was service connected. VAOPGCPREC 8-97 (1997). Additionally, at the October 2012 hearing, the Veteran expressed interest in obtaining higher disability ratings for Guillain-Barré syndrome, treated as if service-connected under 38 U.S.C.A. § 1151, on the basis of worsening symptoms in all four extremities rated as manifestations of this disability. He also raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to Guillain-Barré syndrome. The Veteran's initial ratings for Guillain-Barré syndrome were assigned in a February 2008 rating decision and increased ratings were awarded in a September 2008 rating decision, effective January 2, 2008. In December 2008, VA received new evidence material to the Veteran's disability ratings for Guillain-Barré syndrome, specifically consisting of a detailed review of the Veteran's medical history and current symptomatology prepared by his wife, which is lay evidence, along with supporting VA treatment records that were not associated with the claims folder at the time of either rating decision. See Mayhue v. Shinseki, 24 Vet. App. 273, 281 (2011) ("New evidence that shows unemployability relating to the underlying condition during the pendency of the original claim is material on its face."); cf. Voracek v. Nicholson, 421 F.3d 1299, 1302 (Fed. Cir. 2005) (finding that a lay statement submitted without supporting evidence did not constitute new and material evidence). Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011) ("VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim...."). Consequently, a rating decision does not become final when new and material evidence is received before the appeal period has expired. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); accord Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Therefore, neither the February 2008 rating decision nor the September 2008 rating decision finally adjudicated the initial ratings assigned for Guillain-Barré syndrome. As a result, the initial assignment of the Veteran's disability ratings for Guillain-Barré syndrome remains pending before the by the Agency of Original Jurisdiction (AOJ), and, furthermore, also includes the issue of entitlement to a TDIU raised at the October 2012 Board hearing. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran specifically identified the two issues currently on appeal in his December 2008 Notice of Disagreement (NOD), and did not state disagreement with or otherwise refer to the ratings assigned for Guillain-Barré syndrome, the Board does not have jurisdiction over the claim for entitlement to higher initial ratings for Guillain-Barré syndrome, including entitlement to a TDIU, at this time. See Young, 22 Vet. App. at 466 (explaining that an NOD is filed where the Veteran's written statement can be reasonably construed as expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result); Palmer v. Nicholson, 21 Vet. App. 434, 436 (2007) (holding that the Court will consider the actual words of the potential NOD and the context in which they were written); 38 C.F.R. § 20.201; cf. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011) (suggesting that it may be reasonable to expect the Veteran to specify the particular denied claim that he seeks to appeal where the RO addresses multiple claims in the same decision). Therefore, as a claim for entitlement to higher initial ratings for Guillain-Barré syndrome, including entitlement to a TDIU, is still pending final adjudication by the RO under 38 C.F.R. § 3.156(b), that claim is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Additional disabilities, to include residuals of a MRSA infection, were sustained as a result of hospital care at the VAMC in Bay Pines, Florida, in October 2007. 2. The Veteran's MRSA infection is due to an instance of fault on the part of VA in furnishing hospital care. 3. The Veteran's December 2007 abdominal aortic aneurysm, to include all residuals of his December 2007 abdominal aortic aneurysm and surgical repair, including thrombosis of the left lower extremity, was proximately due to his October 2007 MRSA infection. CONCLUSIONS OF LAW 1. The criteria for compensation benefits under 38 U.S.C.A. § 1151 for residuals of a MRSA infection have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2012). 2. The criteria for entitlement to benefits payable for residuals of the Veteran's December 2007 abdominal aortic aneurysm and surgical repair, including thrombosis of the left lower extremity, as secondary to a MRSA infection treated as if service connected under 38 U.S.C. § 1151, have been met. 38 U.S.C.A. §§ 1131, 1151, 5107 (West 2002); 38 C.F.R. § 3.102, 3.310, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons or bases for its findings and conclusions on all material issues of fact and law, there is no need to discuss each piece of evidence submitted by the Veteran, or on his behalf, in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (explaining that the Board must review the entire record, but need not explicitly discuss every individual piece of evidence in the record). Accordingly, the analysis below will focus on an evaluation of the material evidence of record and whether this evidence substantiates the claims on appeal. Therefore, the Veteran should not assume that the Board has overlooked evidence that is not explicitly mentioned in the following discussion. See generally Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board's responsibility to evaluate the evidence applies to both medical evidence and competent lay evidence. Madden, 1125 F.3d at 1481; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Lay evidence may be used to diagnose or establish the etiology of the Veteran's medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana, 24 Vet. App. at 433 n.4. With regard to medical evidence, the Board will evaluate the probative value of a medical opinion by assessing whether (1) the medical opinion is based on sufficient facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the expert witness has applied the principles and methods reliably to the case. Nieves-Rodriguez, 22 Vet. App. at 302 (citing FED. R. EVID. 702). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). In this decision, the Board grants all benefits sought by the Veteran for residuals of his MRSA infection and December 2007 abdominal aortic aneurysm and surgical repair. As this award constitutes a complete grant of the benefits sought on appeal, any deficiency in VA's compliance with the duty to notify and assist is harmless error, and no further discussion of this duty is necessary. The Veteran contends that he contracted a MRSA infection while hospitalized for treatment of Guillain-Barré syndrome at a VA facility and, shortly thereafter, developed an abdominal aortic aneurysm due to MRSA infection of the endovascular aneurysm repair (EVAR) graft surgically placed to repair a previous abdominal aortic aneurysm in 2000. Although the Veteran claimed entitlement to these benefits as secondary to Guillain-Barré syndrome and did not expressly claim entitlement to benefits for residuals of a MRSA infection under 38 U.S.C.A. § 1151, the Board will nevertheless consider his claim for benefits under that statutory provision as VA is required to consider all theories of entitlement raised by the claimant or by the evidence in accordance with the non-adversarial nature of the adjudication process. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); see also Robinson, 557 F.3d at 1361. Although 38 U.S.C.A. § 1151 only awards benefits "as if" the Veteran was service connected and, consequently, all benefits ancillary to service connection are not available to § 1151 beneficiaries, no prejudice can result to the Veteran from the Board's recharacterization of his claim because, notwithstanding the erroneous phrasing of the issues by the RO in the September 2008 rating decision, the original theory of entitlement put forth by the Veteran was predicated on the § 1151 benefits granted in February 2008 for Guillain-Barré syndrome. See Bartlett v. Shinseki, 24 Vet. App. 328, 330 (2010) (holding that 38 U.S.C.A. § 1151 authorizes compensation for certain disabilities in the same manner as if the disabilities were service connected); VAOPGCPREC 100-90 (1990) (explaining that all ancillary benefits available to Veterans suffering from service-connected disabilities are not necessarily available where benefits are awarded under § 1151). Therefore, any benefits hypothetically awarded under the Veteran's original theory of recovery would be subject to the same potential limitations. VAOPGCPREC 8-97 (1997) (emphasizing that an award of service connection for the original § 1151 disease or injury or any proximate results or secondary conditions of that disease or injury is not authorized, only payment of compensation "as if" the § 1151 disability and any secondary conditions resulting from that disability were service connected is authorized); see also 38 C.F.R. § 3.310. For claims filed after October 1, 1997, such as this claim, compensation benefits under 38 U.S.C.A. § 1151 may be awarded where additional disability is shown that is not the result of the Veteran's willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing hospital care or an event not reasonably foreseeable. See generally 38 C.F.R. § 3.361 (outlining all possible avenues for establishing entitlement to § 1151 benefits in addition to the specific theory described here); see also Bartlett, 24 Vet. App. at 330-31 (holding that after the 1996 amendments, effective October 1, 1997, 38 U.S.C.A. § 1151 requires fault on the part of VA such that injuries resulting from acts purely coincident with VA hospital care, treatment, or examination are not entitled to compensation); Mangham v. Shinseki, 23 Vet. App. 284, 289 (2009) (finding that Congress repudiated the notion that a coincidental event occurring during "hospitalization" could lead to § 1151 recovery). To determine whether additional disability exists, VA will compare the Veteran's physical condition immediately prior to the hospital care upon which the claim for benefits is based with the physical condition after such care or treatment. 38 C.F.R. § 3.361(b). Further, the hospital care cannot be found to have caused a continuance or natural progression of a disease or injury for which care was provided absent a failure to timely diagnose and properly treat the disease or injury that proximately caused that continuance or natural progression. 38 C.F.R. § 3.361(c)(2). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that fault on the part of VA in furnishing medical care was the proximate cause of a Veteran's disability or death, the evidence must show that the medical care, treatment, or examination actually caused the additional disability or death, and VA either failed to exercise the degree of care that would have been expected of a reasonable health-care provider, or furnished the care without informed consent. 38 C.F.R. § 3.361(d)(1). The phrase "hospital care" includes, at a minimum, the provision of services unique to the hospitalization of patients and is not limited to treatment or examination. Compare Bartlett, 24 Vet. App. at 333, and Jackson v. Nicholson, 433 F.3d 822, 825-26 (Fed. Cir. 2005) (explaining that "hospital care" is, however, narrower than the earlier term "hospitalization"). Additionally, as indicated above, "compensation" under 38 U.S.C.A. § 1151 includes benefits payable for conditions secondary to or proximately the result of the § 1151 disability under 38 C.F.R. § 3.310. VAOPGCPREC 8-97 (1997); see also Smith v. Shinseki, 24 Vet. App. 40, 49 (2010) (outlining the elements for establishing disability incurred on a secondary basis); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (finding that 38 C.F.R. § 3.310 is derived from the general statutory provisions authorizing compensation, i.e., 38 U.S.C. §§ 1110 and 1131). Therefore, benefits may also be awarded under 38 U.S.C.A. § 1151 for a current disability that is proximately due to or the result of a § 1151 disability. Id. Here, the medical and lay evidence shows that the Veteran contracted a MRSA infection while under the care of a VA medical facility in October 2007 resulting in significant deterioration of his physical condition following the October 2007 hospitalization compared to his physical condition prior to that care, including a mycotic aortic graft caused by MRSA infection and acute post-operative left femoral artery thrombosis. See October 2007 to February 2008 VA discharge summaries. The Veteran's VA hospitalization records and VA medical opinion obtained in July 2008 establish that these disorders were newly acquired and not the continuance or natural progression of an existing disease as they resulted from complications of the MRSA infection and not from the Veteran's aortic aneurysm repair that had been asymptomatic since the surgery was performed in 2000. Furthermore, as MRSA testing data clearly shows that the Veteran was negative for MRSA at admission in early October and tested positive for MRSA toward the end of his first period of hospitalization in late October and the VA examiner found that MRSA was "most probably" contracted during his first hospitalization in October 2007, the evidence shows that the hospital care provided by VA actually caused the MRSA infection and, consequently, the residuals of that infection. The Veteran's Health Administration has determined that MRSA is typically spread from patient to patient on "unclean hands" or through the "improper use or reuse of health care equipment" in health facilities. See Veterans Health Admin. Research & Dev., Dep't of Veterans Affairs, A New Way to Combat MRSA Infections (2012) [hereinafter VHA R&D]. At the Bay Pines VA Healthcare System, specifically, continuing infection control concerns seen on inspection during the week of July 30, 2007, to August 3, 2007, were recorded and discussed in an October 2007 report by the Office of Healthcare Inspections. Office of Healthcare Inspections, Office of the Inspector Gen. of the Dep't of Veterans Affairs, Report No. 07-01248-13, Combined Assessment Program Review of the Bay Pines VA Healthcare System (October 2007) [hereinafter 2007 OIG report]. Then, in October 2007, a prevention plan called the "MRSA bundle" was fully implemented in acute care VA hospitals nationwide. R. Jain et al., Veterans Affairs initiative to prevent methicillin-resistant Staphylococcus aureus infections, 364 N Eng. J. Med. 1419, 1420 (2011). The bundle involved universal nasal surveillance for MRSA colonization, contact precautions for patients who were carries of MRSA, hand hygiene, and a culture change assigning responsibility for infection control to every staff member in contact with patients. Id. As a result, the rates of health care-associated MRSA infections, previously stable from 2005 to 2007, decreased by 62 percent in intensive care units (ICUs), from 1.64 MRSA infections per 1,000 patient days to 0.62 infections per 1,000 patient days, and by 45 percent in non-ICUs, from 0.47 per 1000 patient days to 0.26 per 1000 patient days. Id. at 1424. At of the end of 2011, the "aspirational goal" for MRSA infection rates set by the Bay Pines VA Healthcare System was 0.0 MRSA infections per 1,000 bed days of care. Bay Pines VA Healthcare System, Dep't of Veterans Affairs, Building a Better Bay Pines: Year in Review (January 2012) [hereinafter 2011 Bay Pines report]. The MRSA infection data from that year shows that an impressively low rate of 0.06 MRSA infections per 1,000 bed days of care was achieved. Id. As noted in the report, this rate is within 10 percent of the aspirational goal. While the Bay Pines VA Healthcare System is to be commended for the degree of success achieved in reducing the incidence of MRSA infection to a rate within 10 percent of the aspirational goal in 2011, entitlement to § 1151 compensation benefits for residuals of the Veteran's specific MRSA infection due to hospital care in October 2007 is established by the evidence, resolving all doubt in favor of the Veteran. See 2011 Bay Pines report, supra; see also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. As a VA publication shows that the Veteran's MRSA infection was likely contracted by exposure to the "unclean hands" of hospital staff or through the "improper use or reuse of healthcare equipment," specific infection control concerns were noted in an October 2007 assessment of the Bay Pines Healthcare System, and the incidence of this type of infection has since been greatly reduced due to the implementation of reasonable preventative procedures, the evidence establishes a MRSA infection caused by a failure on the part of VA to exercise the degree of care that would have been expected of a reasonable health-care provider. See VHA R&D, supra (stating the likely means of MRSA exposure); 2007 OIG report, supra (documenting infection control concerns seen at Bay Pines Healthcare System facilities); Jain et al., supra (documenting the reduction in rates of MRSA infection); 2011 Bay Pines report, supra (reporting 2011 MRSA infection rates at the Bay Pines Healthcare System). Furthermore, the VA medical opinion obtained in July 2008 and the October 2012 opinion submitted by the Veteran's VA vascular surgeon establish a relationship between the Veteran's MRSA infection and his subsequent abdominal aortic aneurysm. The July 2008 opinion explains that the MRSA infection of the Veteran's EVAR graft led to the "constellation of events" surrounding the surgery for that condition, ultimately resulting in thrombosis of the left lower extremity. In the October 2012 opinion, the vascular surgeon determined that the mycotic aortic graft infection, necessitating two "extensive" surgeries in December 2012, was most likely caused by the MRSA infection that occurred during treatment for Guillain-Barré syndrome in October 2007. Consequently, compensation benefits for residuals of a December 2007 abdominal aortic aneurysm and surgical repair, including thrombosis of the left lower extremity, are also warranted under 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.310 as the medical evidence of record shows that these residuals are secondary to the § 1151 October 2007 MRSA infection. See VAOPGCPREC 8-97 (1997). ORDER Benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of a MRSA infection are granted, subject to the laws and regulations governing the award of monetary benefits. Benefits payable for residuals of the Veteran's December 2007 abdominal aortic aneurysm and surgical repair, including thrombosis of the left lower extremity, as secondary to a MRSA infection covered by 38 U.S.C. § 1151 are granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs