Citation Nr: 1620440	
Decision Date: 05/19/16    Archive Date: 05/27/16

DOCKET NO.  10-36 546	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for anatomical loss of a creative organ and recurrent perianal abscess due to an infection caused by surgery.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and a friend


ATTORNEY FOR THE BOARD

J. Fussell, Counsel 

INTRODUCTION

The Veteran had active service from November 1974 to February 1978.  

This matter comes before the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

The Veteran presented testimony at a hearing before a Veterans Law Judge (VLJ) conducted at the RO in Nashville, Tennessee in July 2012; a transcript of the hearing has been made part of the record.  By letter in April 2016 the Veteran was informed that the VLJ that presided over that hearing was no longer employed by the Board and that the Veteran had the opportunity to testify at another hearing if he so desired.  The Veteran responded later that month indicating that he did not desire another hearing.  

A February 2013 Board decision determined that the criteria for withdrawal of the appeals for a disability rating in excess of 30 percent for limitation of extension of the right knee, for a rating in excess of 10 percent for limitation of flexion of the right knee, for a rating in excess of 10 percent for traumatic partial amputation of the right ear with deformity of the pinna, and for a compensable disability rating for left ear hearing loss, had been met.  The claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for anatomical loss of a creative organ due to an infection caused by surgery was remanded.  

The case has now been returned to the Board.   

Lastly, In addition to the paper claim file there are paperless claims electronic files, Veteran's Benefits Management System (VBMS) and Virtual VA.  All of these have been reviewed in this case.  



FINDING OF FACT

Anatomical loss of a creative organ and recurrent perianal abscess due to an infection caused by surgery are due to an event which was not reasonably foreseeable by treating VA clinicians.  


CONCLUSION OF LAW

The criteria for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for anatomical loss of a creative organ and recurrent perianal abscess due to an infection caused by surgery are met.  38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Background

The Veteran underwent a left ulnar nerve sub-muscular transposition at a VA facility on January 19, 2010, to treat left cubital tunnel syndrome.   

On January 26, 2010, the Veteran was seen by the VA for chills, nausea and vomiting.  He also complained of pain in the anal region.  A VA physician, W.W.W., M.D., assessed acute gastroenteritis and advised the Veteran to follow a clear liquid diet, and advance with his diet as tolerated.  He also assessed a rash in the perianal region and prescribed hydrocortisone cream. 

(At the July 2012 hearing, the Veteran noted that this VA physician had not provided him with the hydrocortisone cream at the time of treatment, but sent it through the mail.)   

The Veteran was seen again at the VA on January 28, 2010.  He reported continued vomiting and bleeding in his groin area.  Upon examination, the Veteran's testicles were swollen with a knot under them and a knot in the coccyx area.  He reported that he had constant throbbing pain.  He was transferred to Baroness Erlanger Emergency Department for treatment that same day. 

Treatment reports, Baroness Erlanger Emergency Department, from January 28, 2010 through February 26, 2010 show that the Veteran was treated for Fournier Gangrene as a result of an infection due to an excisional debridement.  

While in the emergency room, the Veteran was diagnosed with a buttocks abscess, buttock and perianal cellulitis, and scrotal cellulitis with possible Fournier's gangrene.  He was admitted to the Erlanger Health System the same day, and was found to have Fournier's gangrene.  He underwent debridement, a scrotectomy, and incision and drainage of a perirectal abscess that extended into the anterior perianum and onto the scrotum and penis.  He was discharged on February 13, 2010.  

On February 18, 2010, the Veteran's home health care provider reported that a stitch in the main suture site in his groin had broken and was putting stress on the entire surgery site.   The Veteran was taken to Erlanger for treatment.  

Because of the Veteran's contentions as to VA negligence, he was scheduled for a VA examination for the purpose of obtaining a medical opinion.  

In June 2013 a VA physician reviewed the Veteran's claim file and conducted an examination of the Veteran.  The examiner opined that the Veteran did not appear to have any significant disability that he did not have before January 2010 except for the intermittent drainage from his surgical wound.  By report, this appeared to be serous drainage with occasional blood.  The wound had healed remarkably well considering the extent of the Veteran's disease and the debridement required.  The Veteran's preoperative lab work was reviewed prior to his January 2010 orthopedic procedure.  A preoperative CBC revealed a normal white blood cell count without suggestion of an ongoing infection at that time.  There would have been no way to anticipate his infection based on his preoperative lab work.  

The examiner observed that the Veteran was seen by his clinical physician on January 26, 2010, with complaints of nausea and vomiting and bumps in his perineum.  This was described as a rash in the clinic note from that day and it was treated topically.  At a repeat examination on the 28th, the Veteran's perineal examination revealed that it had worsened and he was transferred to the hospital for further evaluation.  The VA examiner noted that Fournier's gangrene often began insidiously and would require an extremely high index of suspicion to diagnose this condition based on the documented examination from January 26, 2010.  The examiner stated that there did not appear to be any negligence or carelessness in regards to the Veteran's care, because he was appropriately transferred to the hospital for further evaluation once his examination had revealed a worsened condition and there was concern for infection.  

The examiner also stated that the Veteran required debridement of the genital and perineal skin due to a significant infection.  The natural course of this disease process typically required surgical intervention along with medical treatment with antibiotics, and it was unlikely to have resolved with medical therapy alone.  It would typically begin insidiously and declare itself as the infection continued such that it became obvious on examination.  Based on the Veteran's records, his infection followed the typical course.  He also had suffered no loss of creative organ from this event as both testicles are intact and palpably normal.  The left testicle was moved into the left thigh for safety, when he required his left hemiscrotectomy.  

Law and Regulations

A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability...were service-connected" if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable."  38 U.S.C.A. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation.  38 U.S.C.A. § 1151(a).  

First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question.  38 C.F.R. § 3.361(b).  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. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct.  38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.301(c)(3).  

Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA.  38 C.F.R. § 3.361(c).  Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993).  That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and such additional disability must be directly caused by that VA activity.  Loving, 19 Vet. App. at 101.  

Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable.  38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d).  

Thus, 38 U.S.C.A. § 1151 contains two causation elements - an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event."  38 U.S.C.A. § 1151(a)(1).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   

Analysis

Initially, addressing the matter of whether the Veteran has additional disability, the recent VA examiner's opinion would seem to suggest that there is no additional disability.  The Board disagrees.  It is undisputed that when the Veteran had his left hemiscrotectomy his left testicle was placed, for safekeeping, in his left thigh.  This necessarily means that the left testicle is not in the normal anatomical position and, as such, it is unable to do what it is naturally intended to do, i.e., among other things, the production of semen.  

Also, the recent VA examiner conceded that the Veteran had recurrent drainage of serous fluid and blood from a postoperative perianal abscess.  This also constitutes additional disability.  

Next, the Board notes that the Veteran has contended that VA was negligent in two respects.  First, he alleges that he was told by the physicians at Erlanger that he should have had bloodwork done prior to his left elbow surgery, which would have revealed that he had an infection.  He indicated that his surgery should have been postponed if this was the case.  Second, he alleges that the physician who treated him at the VA on January 26 and 28, 2010, W.W.W., M.D., was negligent and sent him home without determining that he had an infection and providing treatment, allowing the infection to spread and causing additional injury.

As to this, the matter of negligence was specifically addressed by the recent VA examiner who found that there did not appear to be any negligence or carelessness in regards to the Veteran's care.  

However, this does not end the matter because there is also the question of whether causation is due to an event that was not reasonably foreseeable.  In this regard, the recent VA examiner did not specifically address this question.  On the other hand, that examiner did state that because a preoperative CBC revealed a normal white blood cell count without suggestion of an ongoing infection at that time, there would have been no way to anticipate his infection based on his preoperative lab work.  

Significantly, the VA examiner took the opportunity to twice note that Fournier's gangrene often began insidiously and would not become detectable until it was obvious on examination, and that it would require an extremely high index of suspicion to diagnose this condition based on the documented examination from January 26, 2010.  With the favorable resolution of doubt in favor of the Veteran these comments by the 2013 VA examiner are interpreted as meaning that it was not reasonably foreseeable that when the Veteran had his left ulnar nerve transposition that he had an insidious and not readily detectable infection.  

Accordingly, the Board finds that entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for anatomical loss of a creative organ and recurrent perianal abscess due to an infection caused by surgery is warranted.  38 U.S.C.A. § 5107(B); 38 C.F.R. § 3.102.  

In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).  


ORDER

Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for anatomical loss of a creative organ and recurrent perianal abscess due to an infection caused by surgery is granted.  



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs