Citation Nr: 1715344 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 04-14 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of methicillin-resistant staphylococcus aureus (MRSA), to include as secondary to chronic sinusitis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1973 and from November 1974 to August 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified in February 2016 before the undersigned. A transcript of the hearing was created and is associated with the claims file. In May 2013, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial of service connection for residuals of MRSA. The Court reasoned that the Board failed to consider an August 2007 nasal swab report, in finding that no diagnosis of the claimed condition. The Court ordered that the Veteran be provided a VA examination to determine the etiology of his MRSA infection. In April 2014 and October 2016 the Board remanded the issue for additional evidentiary development. The case has now been returned to the Board for further appellate action. FINDING OF FACT MRSA is not shown to be the result of any incident of the Veteran's active military service and is not causally related to, or made worse by service-connected chronic sinusitis. CONCLUSION OF LAW MRSA was not incurred or aggravated inservice, and it is not secondary to service-connected chronic sinusitis. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran asserts that his MRSA infection was caused or aggravated by his service-connected chronic sinusitis. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. The Veteran was diagnosed with MRSA by way of a nasal swab in August 2007. An August 2015 VA examination corroborated the Veteran's diagnosis and noted that the infection had resolved after one year, i.e., by August 2008, with no recurrence since that time. However, the Veteran does not claim, and the record does not reflect that MRSA began during active duty service. Indeed, the Veteran's service treatment records do not reflect any complaints, findings, diagnoses or treatment for MRSA during service. Instead, the Veteran asserts that his MRSA is causally related to his service-connected chronic sinusitis. Specifically, the Veteran has alleged that he was infected with MRSA as a result of pooling of bacteria in his sinuses, as a result of various procedures performed on his sinuses, or as a result of a "superinfection" due to long-term antibiotic use in the treatment of his sinusitis. The Veteran was provided a VA examination in August 2015. The examiner opined that the Veteran's MRSA infection was less likely than not related to his chronic sinusitis. In support of that conclusion, the examiner noted that it would require speculation to determine how the particular staphylococcus strain was contracted. Clarification was requested as to why speculation would be required, and in January 2017, a VA addendum opinion was obtained which explained that it is never possible to ascertain where any bacterial infection originated from. It was noted that MRSA was endemic in the population, and that it would be entirely speculative to try to explain where the bacterial strain originated from. The reviewing physician concluded that there was no evidence of any residual effect of this treated infection, i.e., MRSA, upon the claimant's long standing sinusitis. There is no competent evidence to the contrary. The Board finds that the January 2017 opinion is adequate to decide the case because it was based upon consideration of the Veteran's medical history, including his lay assertions and his current complaints, and because it sufficiently informs the Board of the examiners' judgment on those medical questions and the examiners' essential rationale for the opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). The August 2015 examiner did not explain why an opinion on the etiology of the appellant's MRSA infection would require speculation, and the Board thus ascribes reduced probative weight to that opinion. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Nonetheless, the January 2017 is adequate for review because it included a complete rationale as to why such an opinion would require speculation. Both the VA and private treatment notes of record are silent for any opinion as to the etiology of the Veteran's MRSA infection. The Veteran's August 2007 nasal swab revealed a MRSA infection, but included no opinion as to the etiology of that condition. Similarly, an April 2008 private treatment note indicated that the Veteran was a MRSA carrier, but again, no opinion as to the etiology of that condition was provided. The Board acknowledges that the Veteran has continuously asserted that his MRSA was the result of his chronic sinusitis. However, the Veteran is not competent to speak to the etiology of such a condition, as he is not shown to have the required medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence is competent when it does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159 (a)(2); Bruce v. West, 11 Vet. App. 405 (1998). As the Veteran has not demonstrated the specialized knowledge necessary to speak to a complex matter such as the etiology of his MRSA infection, the Board assigns no probative weight to his lay statements on that matter. Also in support of his contentions of an etiology between MRSA and his sinusitis, the Veteran has submitted several medical articles which suggest a causative relationship between sinusitis and MRSA infection. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Here, the medical articles submitted by the Veteran were not accompanied by the opinion of any medical expert to the effect that the Veteran's MRSA was causally related to his chronic sinusitis. Thus, such articles are not specific to the facts and medical history presented in his case, and thereby are insufficient to establish a relationship between the Veteran's MRSA and chronic sinusitis. The articles thus lack probative value in the present appeal. Moreover, the general relationship between sinusitis and MRSA is not in question. Rather, the evidence is not in equipoise as to the facts specific to this Veteran. In sum, the only adequate medical evidence of record with regard to the etiology of the Veteran's MRSA is the January 2017 VA examination. The Board notes that except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C.A. § 5107. Although reasonable doubt shall be resolved in the favor of the claimant, such a reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Id. Under 38 C.F.R. § 3.102, the "Board may not award benefits when the award would be based upon pure speculation." Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009). In the present case, no competent medical evidence supports the Veteran's claim. On the contrary, all competent medical evidence of record indicates that the Veteran's theory of etiology is unsupported by anything more than mere speculation. As such, the Board cannot find an approximate balance of positive and negative evidence, and the equipoise standard is not reached. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for MRSA on a direct or secondary basis. The benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for residuals of MRSA is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs