Citation Nr: 1340924	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  10-21 065	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for severe scarring of the chest status post secondary surgery with sternotomy, and scarring from long-term infection drainage suction tubing, based on methicillin-resistant staphylococcus aureus (MRSA) infection during hospitalization for coronary artery bypass graft (CABG) surgery in February 2013.  

2.  Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for loss of sight in the right eye, based on MRSA infection during hospitalization for CABG surgery in February 2013.  

3.  Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for throat and vocal cord problems, based on MRSA infection during hospitalization for CABG surgery in February 2013.  

4.  Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for a disability manifested by fatigue, based on MRSA infection during hospitalization for CABG surgery in February 2013.  

5.  Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for a disability manifested by chest pain, based on MRSA infection during hospitalization for CABG surgery in February 2013.  

6.  Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for a disability manifested by bilateral leg weakness, based on MRSA infection during hospitalization for CABG surgery in February 2013.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechter, Counsel 


INTRODUCTION

The Veteran served on active military duty from August 1950 to March 1952.

The appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In June 2012 the Veteran testified before a Veterans Law Judge of the Board at a Travel Board hearing conducted at the RO.  A transcript of that hearing is of record.  The Veterans Law Judge who conducted that hearing is no longer employed with the Board, and the Veteran was accordingly afforded a new hearing.  In June 2013 he testified before the undersigned at a second Travel Board hearing at the RO.  A transcript of that hearing is also of record.  

The Board remanded the claim for additional development in August 2012, and remanded the claim in March 2013 for the second Travel Board hearing.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for loss of sight in the right eye, for throat and vocal cord problems, and for disabilities manifested by fatigue, chest pain, and bilateral leg weakness, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

Severe scarring of the chest status post secondary surgery with sternotomy, and scarring from long-term infection drainage suction tubing resulted from fault of the VA resulting in the Veteran contracting MRSA infection during VA hospitalization for CABG surgery in February 2013.


CONCLUSION OF LAW

The criteria for entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for severe scarring of the chest status post secondary surgery with sternotomy, and scarring from long-term infection drainage suction tubing, on the basis of MRSA infection during VA hospitalization in February 2008, have been met.  38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.358, 3.361 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102 , 3.159, 3.326(a) (2013). 

Because the Board herein grants the benefits claimed to the extent adjudicated herein, there is no reasonable possibility that additional notice or assistance will further the claims.  Accordingly, no further notice or development assistance is required prior to the Board's adjudication.  


II. Claim for Benefits Under 38 U.S.C.A. § 1151

The Board herein addresses the claim for benefits pursuant to 38 U.S.C.A. § 1151, for scar residuals of MRSA infection and treatment, as complications of the Veteran's hospitalization and coronary artery bypass graft (CABG) surgery in February 2008.  The Veteran contends, in effect, that such benefits are warranted based on MRSA infection contracted during that hospitalization.  

The statute at 38 U.S.C.A. § 1151(a)  provides in relevant part that disability compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service- connected. As pertinent to this case, a qualifying additional disability means a disability which was not the result of the Veteran's willful misconduct and was caused by hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility, and the proximate cause of the disability or death was either: (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 implementing regulation (applicable to section 1151 claims received on or after October 1, 1997) is 38 C.F.R. § 3.361 , which provides that, in order to determine whether a veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the Veteran's condition after such care, treatment, or examination has stopped. VA considers each involved body part or system separately.  38 C.F.R. § 3.361(b). Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet specified causation requirements.  38 C.F.R. § 3.361(c)(1)  (disability actually resulted from the VA care); (c)(2) (continuance or natural progress of pre- existing condition cannot be due to VA care unless caused by failure to timely diagnose); (c)(3) (veteran's failure to follow medical instructions vitiates VA causation); (d)(1) (VA failed to exercise reasonable degree of care or acted without veteran's informed consent), (d)(2) (event not reasonably foreseeable caused additional disability). 

Most pertinently here, regulations specify that the additional disability or death must actually result from VA hospitalization or medical or surgical treatment, and not merely be coincidental therewith.  In the absence of evidence satisfying this causation requirement, the mere fact that aggravation occurred will not suffice to make the additional disability or death compensable.  38 C.F.R. § 3.358(c)(1)(2).

The record reflects that the Veteran was hospitalized in February 2008 for quadruple coronary artery bypass graft (CABG times 4) surgery, and that in the course of that hospitalization he contracted a MRSA infection, necessitating a further surgery in February 2008 in efforts to treat and ameliorate effects of that infection, as well as prolonged hospitalization and ongoing extensive care in the ensuing months to treat the infection and its effects.  The MRSA infection during the hospitalization and subsequent treatment necessitated by the infection are not reasonably in dispute.  

The Board takes judicial notice of general clinical understanding, as informed by many studies in recent years, of the efficacy of better hygienic procedures in hospitals and by medical staff in reducing the incidence of MRSA infections and resulting illness.  See, e.g., PD Johnson, R Martin, et al, Efficacy of an Alcohol/Chlorhexidine Hand Hygiene Program in a Hospital with High Rates of Nosocomial Methicillin-Resistant Staphylococcus Aureus (MRSA) Infection, 183(10) Med J Aust. 509-14 (Nov. 21, 2005); S Sroka, P Gastmeier, E Meyer, Impact of Alcohol Hand-Rub Use on Meticillin-Resistant Staphylococcus Aureus: an Analysis of the Literature, 74(3) J Hosp Infect. 204-11 (Mar. 2010).  Thus, because prevention or limiting of incidence hospital-acquired MRSA infections and resulting illness may be obtained from improved hospital-wide hygienic practice, the Board finds that the Veteran's contracting MRSA infection and resulting illness in the course of his hospitalization for CABG, must be attributable in some degree to the fault of the medical facility, for failing to prevent MRSA infection and resulting illness.  The Board concludes that, by the preponderance of the evidence, the limitations of hygiene in the care provided the Veteran over  the course of his hospitalization for CABG surgery in February 2008 caused the infection, and hence service connection for residuals of MSRA infection is warranted, on the basis of such fault on the part of VA.  38 C.F.R. § 3.358(c)(1)(2).

VA obtained a fee-basis medical opinion in September 2009 addressing whether there was some element of fault or an event not reasonably foreseeable in the Veteran's contracting of MRSA over the course of his hospitalization for CABG surgery, and whether there was some element of fault or an event not reasonably foreseeable in the development of claimed residuals.  Upon review of the medical record, the physician opined that the CABG performed was proper for the Veteran's cardiac condition, that the record "does not indicate any departure from accepted levels of medical care or the performance of professional duties expected of a reasonable health care provider."

To expect the medical record of the Veteran's hospitalization and medical care to document any hygienic deficiencies over the course of that hospitalization would be at best naive.  To thus ask or answer such a question is precisely to miss the point in the case of hospital-acquired MRSA infection, specifically, that the likelihood of such infection is increased by systemic as well as particularized deficiencies of hygienic systems and procedures of care which cannot be expected to be documented in the medical record, any more than one would expect a medical record to document poor quality of scalpels used in surgery, or inadequate lighting in an operating room, or a bed pan that was not properly cleaned.  Such elements of deficient care are likely never reflected in the medical record.  

The fee-basis examiner also opined that the MRSA infection and the scarring were "known complications of [open heart bypass surgery]."  This opinion answers whether the outcomes were events not reasonably foreseeable, but does not address whether they were preventable through more hygienic care.  

An additional medical opinion was obtained from a VA nurse practitioner in October 2012.  The nurse, upon review of the record, concluded that it was "more likely than not that severe scarring (chest) is residual of CABG scar complicated with MRSA organism and subsequent sternotomy."  The Board finds that the balance of the evidence of record is in accord with or otherwise supportive of this October 2012 opinion.  The Board accordingly concludes that the preponderance of the evidence favors a causal link between the MRSA infection and the Veteran's severe chest scarring, and thus favors the 38 U.S.C.A. § 1151 claim for that chest scarring.  The Board similarly concludes that the preponderance of the evidence favors the claim for 38 U.S.C.A. § 1151 benefits for long-term suction tube scarring associated with treatment of the Veteran's MRSA infection, as testified to by the Veteran in June 2013 and as supported by the balance of the record.  


ORDER

Benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for severe scarring of the chest status post secondary surgery with sternotomy, and scarring from long-term infection drainage suction tubing, on the basis of MRSA infection during VA hospitalization in February 2008, are granted.


REMAND

The Appeals Management Center (AMC) obtained medical opinions from a VA nurse practitioner in October 2012 addressing whether the Veteran's claimed loss of vision of the right eye and throat and vocal cord issues were the result of his infection.  The nurse practitioner noted that post-CABG records reflected the Veteran's complaint of decreased vision or visual field shadowing over the right eye, with clinical findings of non-arteritic ischemic optic neuropathy ("NAION").  She further noted an optometry consultation concurring that "pathophysiologically microvascular surgical event could possibl[y] lead to NAID."  However, she also noted that there was no documentation of eye complaints during the Veteran's hospitalization.  

The nurse practitioner opined that severe scarring of the chest was a likely complication of MRSA infection following the CABG surgery and subsequent sternotomy for treatment of the MRSA infection, noting that the Veteran's chest scars were initially healing nicely following the CABG surgery, but that severe scarring resulted following the MRSA infection and treatment.  However, regarding the throat and vocal cord issues, the nurse practitioner noted that records were initially silent of complaints in post-surgical progress notes through April 27, 2008, and were similarly silent for dysphagia complaints.  Yet a fee-basis examiner in September 2009 stated that such throat conditions were known complications of the Veteran's CABG surgery, and hence initial throat irritation might not have been deemed of relevant concern.  This may have been particularly the case since serious concerns were the focus care during the Veteran's hospitalization following MRSA surgery in February 2008, as reflected, for example, by the Veteran's intensive care unit treatment for respiratory distress in March 2008.  The nurse practitioner gives no consideration in her analysis to the nature of care afforded the Veteran or the seriousness of his imminent conditions as reflected in hospitalization and treatment records.  

The Board is thus compelled to ask, if there was initial throat irritation from intubation for either the CABG surgery or the MRSA surgery in February 2008, could not MRSA infection exacerbate such irritation, just as it was found likely to have exacerbated his chest scars, even in the absence of any documentation in the record of initial throat complaints following these surgeries.

The Board is unconvinced of the adequacy of the medical opinions obtained from a nurse practitioner in October 2012, and finds that specialist examinations of the Veteran should be conducted to address the likelihood of MRSA-associated complications in the right eye and the throat.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Evans v. West, 12 Vet. App. 22, 30 (1998).  Whether eye or throat complications may have resulted from the ongoing MRSA infection following the surgeries appears not to have been adequately answered, and the Board believes that expert opinions are warranted to address such specialized medical questions.  

The Veteran's claims for entitlement to benefits pursuant to the provisions of 38 U.S.C.A. §  1151 for disabilities manifested by fatigue, chest pains, and bilateral leg weakness, as addressed by the Veteran at his most recent hearing and as additionally clarified by the Veteran's authorized representative in a December 2013 Informal Hearing Presentation, have not been afforded examination addressing questions of MRSA-related etiology adequate for the Board's adjudication of these claims.  Barr.  Hence, these claims are also the subject of remand.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his claims.  

2.  With the Veteran's assistance and authorization, as appropriate, obtain the records of any additional relevant examination or treatment records, including any for MRSA infection residuals, eye care, or throat care, including from VA and private sources.  

3.  Thereafter, because the Board believes that an examination by a specialist should be afforded in this case, the veteran should be afforded an appropriate in-person examination by a qualified ophthalmologist, to address the likelihood of MRSA infection during hospitalization in February 2008 for CABG surgery causing or aggravating a disorder resulting in loss of vision in the right eye.  The examination should be informed by current clinical findings, lay statements, and medical evidence of record.  The claims folder - including a copy of this Remand, any additional statement received from the Veteran, and any other additional evidence, including as reflected in digital VA records, inclusive of the transcripts of Travel Board hearings contained in the record and within Virtual VA - must be made available to the examiner and must be reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted, and findings and conclusions should be explained to the extent they may inform the adjudication of the Veteran's claim.  

The examiner should address the following:

a.  The examiner is advised that the Veteran has already been found to be entitled to benefits for effects of a hospitalization-associated MRSA infection, which infection the Veteran contracted during VA CABG surgery hospitalization in February 2008.  This necessitated a second surgery in February 2008 for MRSA infection treatment, and protracted hospitalization and care for the MRSA infection over the months that followed.  This is all reflected in the record.  

b.  The examiner should note the Veteran's past examination, treatment, and hospitalization records as they pertain to the Veteran's surgeries in February 2008 and hospitalizations then and thereafter as associated with his cardiovascular condition for which he was originally treated with CABG times 4 in February 2008, and the MRSA infection and its residuals and treatment.  The examiner should also review current and past statements by the Veteran about these conditions, including in particular complained-of right eye visual impairment as a residual of MRSA infection. 

c.  For each current vision problem or disorder of the right eye, the examiner should opine whether it is at least as likely as not (at least 50 percent probability) that vision problem was caused or aggravated (permanently increased in severity) by the MRSA infection or by complications or residuals attributable to the MRSA infection or surgery for that MRSA infection, or, alternatively, whether any such link to MRSA infection or to complications or residuals attributable to the MRSA infection or surgery for that MRSA infection is unlikely.  The examiner should provide a complete explanation for his/her opinions.  

4.  Thereafter, because the Board believes that an examination by a specialist should be afforded in this case, the veteran should be afforded an appropriate in-person examination by a qualified otolaryngologist, to address the likelihood of MRSA infection during hospitalization in February 2008 for CABG surgery, having caused or aggravated any disorder characterized by throat or vocal cord dysfunction, to include any impairments in speaking or associated dysfunction, and any dysphagia or associated dysfunction.  The examination should be informed by current clinical findings, lay statements, and medical evidence of record.  The claims folder - including a copy of this Remand, any additional statement received from the Veteran, and any other additional evidence, including as reflected in digital VA records, inclusive of the transcripts of Travel Board hearings contained in the record and within Virtual VA - must be made available to the examiner and must be reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted, and findings and conclusions should be explained to the extent they may inform the adjudication of the Veteran's claim.  

The examiner should address the following:

a.  The examiner is advised that the Veteran has already been found to be entitled to benefits for effects of a hospitalization-associated MRSA infection, which infection the Veteran contracted during VA CABG surgery hospitalization in February 2008.  This necessitated a second surgery in February 2008 for MRSA infection treatment, and protracted hospitalization and care for the MRSA infection over the months that followed.  This is all reflected in the record.  

b.  The examiner should note the Veteran's past examination, treatment, and hospitalization records as they pertain to the Veteran's surgeries in February 2008 and hospitalizations then and thereafter as associated with his cardiovascular condition for which he was originally treated with CABG times 4 in February 2008, and the MRSA infection and its residuals and treatment.  The examiner should also review current and past statements by the Veteran about these conditions, including in particular complained-of vocal cord problems and dysphagia as residuals of MRSA infection. 

c.  For each current disorder characterized by throat or vocal cord dysfunction, to include any impairments in speaking or associated dysfunction, and any dysphagia or associated dysfunction, the examiner should opine whether it is at least as likely as not (at least 50 percent probability) that problem was caused or aggravated (permanently increased in severity) by the MRSA infection or by complications or residuals attributable to the MRSA infection or surgery for that MRSA infection, or, alternatively, whether any such link to MRSA infection or to complications or residuals attributable to the MRSA infection or surgery for that MRSA infection is unlikely.  The examiner should provide a complete explanation for his/her opinions.  

5.  Thereafter, afford the veteran an appropriate examination or examinations to address the likelihood of MRSA infection during hospitalization in February 2008 for CABG surgery causing or aggravating disabilities manifested by fatigue, chest pains, and bilateral leg weakness.  The examination should be informed by current clinical findings, lay statements, and medical evidence of record.  The claims folder - including a copy of this Remand, any additional statement received from the Veteran, and any other additional evidence, including as reflected in digital VA records, inclusive of the transcripts of Travel Board hearings contained in the record and within Virtual VA - must be made available to the examiner and must be reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted, and findings and conclusions should be explained to the extent they may inform the adjudication of the Veteran's claim.  

Each examiner should address the following:

a.  The examiner is advised that the Veteran has already been found to be entitled to benefits for effects of a hospitalization-associated MRSA infection, which infection the Veteran contracted during VA CABG surgery hospitalization in February 2008.  This necessitated a second surgery in February 2008 for MRSA infection treatment, and protracted hospitalization and care for the MRSA infection over the months that followed.  This is all reflected in the record.  

b.  The examiner should note the Veteran's past examination, treatment, and hospitalization records as they pertain to the Veteran's surgeries in February 2008 and hospitalizations then and thereafter as associated with his cardiovascular condition for which he was originally treated with CABG times 4 in February 2008, and the MRSA infection and its residuals and treatment.  The examiner should also review current and past statements by the Veteran about these conditions, including in particular complained-of disabilities manifested by fatigue, chest pain, and bilateral leg weakness as a residual of MRSA infection. 

c.  For each current disability manifested by fatigue, chest pain, or bilateral leg weakness, the examiner should opine whether it is at least as likely as not (at least 50 percent probability) that disability was caused or aggravated (permanently increased in severity) by the MRSA infection or by complications or residuals attributable to the MRSA infection or surgery for that MRSA infection, or, alternatively, whether any such link to MRSA infection or to complications or residuals attributable to the MRSA infection or surgery for that MRSA infection is unlikely.  The examiner should provide a complete explanation for his/her opinions.  

6.  The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of the claims, of failing, without good cause, to so report.  See 38 C.F.R. § 3.655 (2013).  A copy of the notification letter(s) sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record.  If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable.

7.  Thereafter, readjudicate the 38 U.S.C.A. § 1151 benefit claims the subject of remand.  If any of these claims is not granted in its entirety, provide the Veteran and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs