Citation Nr: 1716601 Decision Date: 05/16/17 Archive Date: 05/22/17 DOCKET NO. 10-22 897A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of surgery performed by a Department of Veterans Affairs (VA) hospital in August 2003, including a methicillin resistant staphylococcus aureus (MRSA) infection. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to March 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2015 and August 2016, the Board remanded the case to the RO for further development and adjudicative action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record on which to decide the Veteran's claim so that he is afforded every possible consideration. The August 2013 VA examiner was asked to state whether the claimed disability was caused by or became worse as a result of VA treatment. The VA examiner responded that the "presurgical and operative reports were reviewed. The treatment he received met medical standards." The VA examiner provided the same response in a March 2016 addendum. 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 to 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. In determining whether a veteran sustained additional disability, VA compares his or her condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). Thus, a threshold question to the Veteran's § 1151 claim is whether the Veteran sustained additional disability as a result of VA treatment. The Veteran asserts he has residual symptoms of an attempted right total hip arthroplasty that occurred in August 2003. The Veteran asserted in a June 2009 statement that he can no longer cross his legs, bend, or do heavy lifting. The Veteran stated that the infection that resulted from the attempted August 2003 hip arthroplasty would not have occurred if VA had handled the surgery properly. In September 2009, he asserted that he is more prone to another infection during surgery and also that he is unemployable. He wrote in May 2010 that he cannot stand for long periods of time and has trouble using stairs. He also argued that he has to take antibiotics during any surgery and this had led to him "building up a tolerance" that will lead to a future infection. In a statement from January 2012, the Veteran asserted that he believed VA was responsible for the pain he had gone through since surgery and that he was totally disabled. In his May 2015 substantive appeal he argued that his MRSA infection came from people not washing their hands before taking care of patients. The August 2013 VA examiner noted that the Veteran loses his balance at times, has intermittent shooting pain, and can only mow the law "a few rounds." Later, the VA examiner notes that the Veteran has chronic residuals "consisting of severe painful motion and/or weakness." Thus, the VA examination report suggests that the Veteran may experience a qualifying additional disability due to his VA surgery, but the VA examiner's opinion does not address this issue. A remand is necessary to determine if the Veteran has a qualifying additional disability. Since the claims file is being returned it should be updated to include any VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, and obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to assess any additional disabilities related to treatment received at VA for a right total hip arthroplasty in 2003 and again in 2004. The entire claims file, including a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should specifically address the following questions: a) Does the Veteran have an additional disability that was caused by hospital care, medical or surgical treatment, or examination either by a VA employee or in a VA facility pursuant to his right total hip arthroplasty in 2003 and again in 2004? The Board notes that the VA examiner should evaluate whether the Veteran has a current additional disability, which would include during the pendency of the claim on appeal, not necessarily the period immediately after the October 2004 second hip replacement. However, the VA examiner should also specifically address and compare the Veteran's symptoms and disability before the August 2003 VA surgical treatment and after the October 2004 second hip replacement. IF AND ONLY IF THE VETERAN HAS ADDITIONAL DISABILITY, THE VA EXAMINER SHOULD ANSWER THE FOLLOWING QUESTIONS: b) Is it at least as likely as not that any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment? c) If the Veteran incurred an additional disability as a result of VA medical care, but such disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the additional disability to be an ordinary risk of a right total hip arthroplasty. The Board notes that the VA examiner should not limit the answer only to whether the Veteran's MRSA infection was reasonably foreseeable. The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After the above development has been completed, readjudicate the Veteran's claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).