Citation Nr: 1620351	
Decision Date: 05/18/16    Archive Date: 05/27/16

DOCKET NO.  09-09 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in New York, New York


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for a disorder of the right hip and upper right femur.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. E. Miller, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Army from April 1961 to April 1964.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision of the New York, New York, Regional Office (RO) which denied entitlement to compensation under 38 U.S.C.A. § 1151 for an infection due to right femur trauma. In June 2010, the Veteran was afforded an RO hearing before a Decision Review Officer. A transcript is in the record. 

In July 2013, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In December 2013 and in August 2015, the Board remanded the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a disorder of the right hip and upper right femur to the RO for additional action.


FINDING OF FACT

The Veteran's right hip and upper right femur disorder was caused by an event not reasonably foreseeable resulting from a VA surgical procedure.


CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a right hip and upper right femur disorder have been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including a June 2006 notice which informed him of the evidence generally needed to support claims for service-connected compensation for a right hip disorder pursuant to 38 U.S.C.A. § 1151; what actions he needed to undertake; and how VA would assist him in developing his claims. The June 2006 notice was issued to the Veteran prior to the January 2007 rating decision from which the instant appeal arises.  

VA has secured or attempted to secure all relevant documentation to the extent possible. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions in the record are adequate. 

All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met.

II.  Analysis

Compensation under the provisions of 38 U.S.C.A. § 1151 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. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran's willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. 

The Veteran's claim for compensation was received in April 2006. In adjudicating claims received on or after October 1, 1997, it is necessary to make several factual determinations as set forth in 38 C.F.R. § 3.361. 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, examination, training and rehabilitation services, or Compensated Work Therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 

In October 2004, the Veteran underwent a total right hip arthroplasty at the Bronx VA Medical Center. Five days later, he fell when getting up to use the bathroom unassisted and injured his hip and fractured his femur. He was required to undergo a revision of his hip replacement. Thereafter, he developed a methicillin-resistant Staphylococcus aureus (MRSA) infection and, in November 2004, he underwent irrigation and debridement. He was placed on antibiotics.

An October 2008 VA Infectious, Immune, and Nutritional Disabilities opinion stated that "the development of a post op wound infection may imply a breach in standard infection control." The opinion further stated that "[I]t is as likely as not that the patient's right hip infection was caused by a breach in standard infection control by [VA]. The location of the breach cannot be identified from the patient's medical record. The development of the post op infection, however, implies a breach in standard infection control and hence as likely as not resulted in his post op infection."

A November 2010 VA Infectious, Immune, and Nutritional Disabilities opinion and an April 2012 follow-up opinion stated that the Veteran "was treated for an extended period of time with appropriate antibiotics. Wound infection (MRSA) is a recognised complication of surgery." The examiner concluded that "VA's diagnosis was timely and the treatment was proper. Hence there is no evidence of any negligence, lack of care on the part of the VA in the care and treatment of this [V]eteran." The examiner did not address the October 2008 opinion stating that "it is as likely as not that the patient's right hip infection was caused by a breach in standard infection control by [VA]." Therefore, this opinion is of low probative value.

A November 2014 VA treatment record conveyed that the Veteran remains on "MRSA [suppressive] therapy for life" due to chronic MRSA infection in his right femur.

A December 2015 VA medical opinion stated that "it is at least as likely as not (50 percent probability or greater) that the Veteran incurred additional disability to his right hip and upper right femur as a result of a chronic right hip infection . . . ." The examiner reiterated the opinion of the October 2008 examiner, highlighting the statement that "The development of the post op infection, however, implies a breach in standard infection control and hence as likely as not resulted in his post op infection." The examiner also stated that "A review of the Veteran's CPRS medical records show that chronic suppression antibiotic coverage 'for life' was recommended by Infectious Disease on oral antibiotics and acknowledged by Orthopedics. While chronic suppression antibiotic coverage 'for life' was recommended, the Veteran's discharge medications on 6/15/2005 'to shelter', do not include antibiotics." The examiner specifically listed that the Veteran has additional disabilities as a result of his chronic right hip infection. These include having to have a second revision of his right hip total arthroplasty in January 2007, which included debridement of MRSA osteomyelitis; hip pain; difficulty walking; inability to use stairs; difficulty putting on socks and shoes; inability to sit in a low chair or any chair for one hour; and inability to use transportation. 

In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 provides that:

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 

The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." 

Evidence is in "approximate balance" when the evidence in favor or and opposing the veteran's claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 

Because the evidence is at least in equipoise as to whether the Veteran has additional disabilities to his right hip and upper right femur as a result of a chronic right hip infection which he incurred due to a breach in standard infection control procedures while undergoing a total right hip arthroplasty at a VA facility, entitlement to compensation under 38 U.S.C.A. § 1151 is warranted and the claim is granted. 


ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for a disorder of the right hip and upper right femur is granted.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeal
Department of Veterans Affairs