Citation Nr: 1326898 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 08-38 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a methicillin resistant staphylococcus aureus (MRSA) infection claimed as the result of surgery performed in a VA hospital on September 26, 2007 and subsequent treatment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in April 2009. A transcript of the hearing is associated with the claims file. The Board previously twice remanded this case for further development, and most recently obtained an April 2013 medical opinion from a Veterans Health Administration (VHA) designated VA physician. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's having acquired an MRSA infection following surgery at a VA medical facility was the result of faulty, negligent or deficient medical care, or otherwise an unforeseeable complication of his left hip replacement procedure. CONCLUSION OF LAW The criteria are not met for compensation under 38 U.S.C.A. § 1151 for MRSA infection claimed as the result of September 2007 left hip replacement surgery performed at a VA medical facility. 38 U.S.C.A. § 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2013). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through March 2008 VCAA notice correspondence, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The VCAA notice further explained how VA establishes disability rating and effective date elements of a claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA correspondence in this case preceded issuance of the June 2008 RO rating decision on appeal, and thus met the standard for timely notice. The RO (including through the Appeals Management Center (AMC)) has taken appropriate action to comply with the duty to assist the Veteran with his claim through obtaining records of VA outpatient treatment. The Veteran has also undergone VA Compensation and Pension examination, and a VHA medical opinion was obtained addressing the medical issues under review. See 38 C.F.R. § 20.901(a). The RO/AMC properly implemented the Board's prior remand directives and obtained comprehensive VA medical records. While there is indication that the Veteran receives disability benefits from the Social Security Administration (SSA) including for hip problems, there is no need to obtain the corresponding records regarding SSA benefits, given that the dispositive issue in this case is the quality of VA medical care and SSA records would not likely concern that matter. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (SSA records must only be sought where directly relevant to the claim). In furtherance of his claim the Veteran has provided personal statements, and testified during a Board hearing. There is no indication of any further relevant evidence or information that has not already been obtained. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Under VA law, 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 (West 2002 & Supp. 2013); 38 C.F.R. § 3.358(a) (2013). To be awarded compensation under section 1151, the veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, 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 the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To determine whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the veteran's condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). If additional disability exists, the next essential determination is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). Also, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable medical provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA is required to consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2). The Veteran underwent a left total hip arthroplasty on September 26, 2007 at the VA Medical Center (VAMC) in Salt Lake City, Utah. The procedure appears to have been fully successful, and there were no immediately noted operative complications. On September 20th the Veteran had completed a signed informed consent to the procedure. This had included a consent to the use of blood products (ostensibly for any transfusions needed). Following the surgery and five days spent on the same hospital floor, the Veteran was sent to the inpatient rehabilitation unit of the VAMC. Records document a relatively uneventful course of recovery. The Veteran left rehabilitation on October 5th for home. However, two days later (on October 7th), he was readmitted to the VAMC for treatment of an acute infection of the left total hip arthroplasty. The hospitalization summary report reflects that the Veteran had gone home from rehabilitation after a productive inpatient rehabilitation stay following left total hip arthroplasty which was uncomplicated. He had experienced an uncomplicated hospital stay and had minimal wound drainage that sealed up by postoperative day four and was consistent with just serous low-molecular heparin-type drainage. One day after discharge from the VAMC, on October 6th the Veteran was feeling fine, but in the morning of October 7th, he had developed fever to 104 degrees while home; some cellulitis around his wound; and also experienced some drainage. He then presented to the emergency department. Examiners determined that he had an acute infection of his total hip arthroplasty. After discussing the risks and benefits of surgery, VA physicians proceeded with incision and drainage of the infected area. The Veteran was discharged from the VAMC after a 10-day hospitalization with direction to take intravenous (IV) antibiotics for several weeks, with additional medications to follow. In February 2008, it was determined that he had completely recovered from the MRSA infection. After that incident, there has been no documented recurrence of MRSA infection following the above-indicated episode. The Veteran maintains that he contracted MRSA due to negligence on the part of the VAMC and hospital staff, alleging that the operating room and instruments used were unsanitary. He recalls that at the time of the left hip arthroplasty access to his hospital room was lax, and there were people frequently going in and out of the room. Only when he was leaving was there a sign posted to restrict access to the room. He maintains that even following his recovery from MRSA he experiences continued weakness and loss of muscle mass. He has since been periodically medically evaluated at the VAMC for tremors, paresthesias, and weakness and imbalance. The Veteran underwent VA Compensation and Pension examination in March 2010. The diagnosis given was end-stage osteoarthritis of the left hip, now status post left total hip arthroplasty with postsurgical complications of MRSA; MRSA had been resolved, and the Veteran had his original total hip prosthesis. The VA examiner further stated as follows: Regarding an 1151 claim and discussion of negligence or carelessness or lack of proper skill or error in judgment, review of the Veteran's stay here at the VAMC is consistent with standard of care. The Veteran was consented and was explained the complications to include infection. He did stay from September 26 to October 5 in the VAMC and MRSA is commonly felt to be a nosocomial or hospital acquired infection. However, that is not considered to be negligence or carelessness. In this case, the Veteran was seen on multiple occasions on every single day by his care providers in the hospital including nursing notes and was assessed as per standard of care. In this case, the Veteran was unfortunate in that he acquired an MRSA infection in the setting of recent surgery and poorly controlled diabetes. One could not say that there was any additional lower extremity disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or any circumstances that indicated fault on the part of the VA, or [an] unforeseen, untoward event. As stated, he was consented and explained the possible complications to include infections. In any case, he was followed on a regular basis while in the hospital the first admission and the second admission was also appropriate with treatment and quick assessment and irrigation and drainage of that same joint, to the point that the Veteran was able to keep the actual original components rather than having to remove those because of ongoing infection in that hip. No other precise, clear, specific diagnosis can be given based upon the limited data available and the examination findings today. There are no other symptoms or treatment reported for the conditions evaluated today. Following the addition to the Veteran's claims file of extensive further VAMC medical records, from both during and since the 2007 instances of inpatient treatment, the March 2010 VA examiner offered a July 2011 addendum opinion, which reiterated his previous conclusion. The Board then requested a VHA medical opinion to resolve whether the Veteran's acquisition of MRSA infection warranted compensation under section 1151. In April 2013, an opinion was obtained indicating as follows: I am a specialist in Infectious Diseases and an expert in bacterial infections. Therefore, I am qualified to assess this case of methicillin resistant Staphylococcus aureus (MRSA) infection. I have received six files with extensive medical records pertaining to the incident, and have been given ample time to review them. I have also read statements directly written by the patient, transcribed, or referenced by other writers. I will attempt to provide an informed medical opinion based on the particulars of the case history, the patient's experience of the events, and my interpretation of the available medical and scientific literature. [following which, a brief summary of medical history ensured] . . . . . To the best of my ability, I can make a definite and objective assessment that the patient did not suffer from faulty or negligent medical care. I concur with previous opinions that this represents a hospital acquired infection. Furthermore, I acknowledge that it is the VA medical center's responsibility to minimize the risk of hospital acquired infection, including MRSA. All the documentation I reviewed, however, indicates that the medical personnel were adherent to all the protocols and measures in place at the time to prevent surgical site infections. Therefore, I do not think this surgical site infection caused by MRSA is the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the VA's part. Despite all the procedural safeguards that were appropriately deployed, infection caused by MRSA still occurred at the surgical site in this particular case. Unfortunately, this type of infection remains a reasonably foreseeable complication of joint replacement surgery. The claim for compensation under 38 U.S.C.A. § 1151 is being denied. The best available information before the Board, including following referral for a VHA expert opinion, indicates that there were no outwardly faulty, negligent, or careless medical practices underlying the Veteran's acquisition of MRSA infection, following left hip total arthroplasty. Ostensibly all requisite treatment protocols were taken to minimize the risk of infection. When unfortunately it did occur, this still could not be deemed an unforeseeable event. The VA medical opinions substantiating these findings are factually well-supported, and the VHA opinion is from an expert in infectious disease treatment. Also notable is that there is no clear "additional disability" following VA treatment in this case, given that MRSA has resolved without definitive diagnosed residuals. However, even assuming that the infection and possible residual weakness comprise the necessary additional disability, the requirement of proximate causation per 38 U.S.C.A. § 1151 is not proven, absent demonstrated medical negligence or an unforeseeable event. It follows that the complete criteria for recovery under section 1151 are not met. Accordingly, the claim for compensation under 38 U.S.C.A. § 1151 for MRSA infection following a left hip replacement procedure is being denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim for compensation under 38 U.S.C.A. § 1151 for MRSA infection claimed as the result of surgery performed in a VA hospital on September 26, 2007 and subsequent treatment, is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs