Citation Nr: 1756778 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-13 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional low back disability, claimed to have resulted from VA back surgery in November 2009 and associated treatment in 2009/2010. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1980 to July 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. At the hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence; such evidence was received. FINDING OF FACT It is reasonably shown that the Veteran has additional low back disability that resulted from VA treatment and was not a reasonably foreseeable consequence of such treatment. CONCLUSION OF LAW The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for additional low back disability based on VA surgery in November 2009 and associated VA treatment in 2009/2010 are met. 38 U.S.C. § 1151 (West 2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter. Any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran alleges that he has a current additional low back disability that was incurred due to VA treatment in November 2009 that involved carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA. 38 U.S.C. § 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service connected. A qualifying additional disability is one where the disability was not the result of the veteran's willful misconduct; was caused by hospital care, medical or surgical treatment, or examination furnished the veteran; and the proximate cause of the additional disability involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. In determining whether there is additional disability, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. Furthermore, the mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). In making these determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran alleges that he has new, or additional, low back disability that resulted from improper medical care at the Iowa City VA Medical Center (MC) in November 2009. Specifically, including in a February 2010 written statement, he alleges that he had back surgery on November 2, 2009 and was released from the hospital 3 days later; complained at the time that he was having problems urinating; and was told this was normal. He stated that 2 weeks later, his stitches were removed and the physician told him that [the wound] looked good. He stated that after he went home, he had a lot of pain, and fluid was draining from the surgical site. He stated that on December 1, 2009, he sought treatment at the Galesburg VA medical center (MC) and was sent to an emergency room and admitted for MRSA infection. He stated that an MRI showed that, during the November 2009 surgery, a nerve was "nicked" and bone was shoved into it, and he then underwent emergency surgery on December 1, 2009. He stated that he was in the ICU with repeated attempts to put a drainage tube into the surgical site. He stated that he was quarantined for 13 days. He stated that after his release from the hospital he was placed on an IV antibiotic for 3.5 weeks, and after he was seen on January 8, 2010, was placed on a different antibiotic for a month. He stated that he felt terrible since the November 2009 surgery, still had problems doing anything, and the pain was worse. In November 2009 the Veteran underwent surgery to the lower back, consisting of L2 and L3 laminectomy and decompression, at the Iowa City VA Medical Center. In December 2009, he sought VA treatment due to increased pain, chills, fevers, and night sweats since suture removal on November 16, and incisional weeping that began 5 days earlier. He reported pain radiating down the right leg with some numbness, which was not present after the surgical procedure. The lower incision weeping serous drainage was noted to appear infected, and surrounding tissue was red and warm to touch. He was referred to an emergency room for evaluation. In an August 2010 statement, the Veteran stated that he underwent another surgery in May 2010 because infection had returned, he was on IV antibiotics for 3 months after the surgery, and was currently on a 3 month course of Cipro. He stated that he was hospitalized for 23 days in May and June 2010, and was still wearing a wound vac on the surgical site. In an August 2010 statement, the Veteran's daughter related that for the previous 9 months he had been in and out of the hospital due to infections, and each time came home with a PICC line that either had not worked properly or infected him more. She stated that he did not currently have the PICC line; the last one was removed because it caused another infection on top of MRSA. She stated that he had a wound vac attached to his back that he had to carry everywhere. She stated that due to the surgeries, his walking was limited to one block or less, he had more pain, and he could not sit very long. On September 2010 VA record review and medical opinion, the reviewing physician noted that the Veteran underwent a laminectomy in late 2009 at the Iowa City VA Medical Center and had a number of complications afterward. The reviewing physician reviewed the operative notes from the laminectomy and two subsequent operations for debridement. The physician cited a July 2010 VA infectious disease treatment note, which states that the Veteran's initial lumbar laminectomy in November 2009 was complicated by pseudomeningocele and cerebrospinal fluid leak and wound infection; his deep CX at that time grew MRSA, he was treated with IV Vancomycin for nearly 6 weeks, and he was transitioned to oral TMP/SMX for an additional 6 weeks. The treatment record notes that he noticed pain and swelling at the incision site with new onset of fevers; he was seen by neurology service in May 2010 and, with the concern of previous wound infection, was evaluated, and a lumbar spine MRI showed fluid collections. He underwent internal debridement and wash out and was placed on wound vac therapy post procedure and started on IV Vancomycin; in May 2010, his intraoperative cultures were noted to have grown MRSA. The July 2010 treatment record notes that the Veteran had been on IV Vancomycin since then, and was discharged on June 23, 2010 on IV Vancomycin and with a wound vac. The July 2010 treatment record notes that per neurosurgery records the wound looked clean with good granulation tissue, but he still had exposed bone in the center of the wound, and his serosanguinous discharges had been decreasing. The reviewing physician cited a September 2010 surgical nursing treatment record, which noted that the Veteran was doing well with no complaints; he still had wound vac therapy and there was a small amount of serosanguinous drainage in the canister; wound vac was discontinued and daily wound dressing changes were to commence for 3 weeks; the Veteran reported having 1 month of oral antibiotics remaining as recommended by infectious disease. The reviewing physician noted that the Veteran had a number of complications following his 2009 back surgery and opined that these were certainly unpredictable in any circumstance. The reviewing physician opined that it appeared that these surgical procedures themselves were uncomplicated, but he began to have wound infections sometime afterward, and two subsequent reoperations were needed; he was on long-term antibiotics and still complained of serous-type drainage from his back. Based on a review of all the records, to include the neurosurgical visits, the reviewing physician could not find any disability or additional disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of the VA in providing medical and surgical care to the Veteran. The reviewing physician opined that it appears the Veteran had a number of events/complications that cannot reasonably be foreseen or anticipated by any competent or prudent health care provider. Concerning residuals, the reviewing physician stated that these would require examination by a provider for additional disabilities of a low back incision and infection, and whether any additional disabilities are noted and their present level of severity. At the November 2016 Board hearing, the Veteran testified that he had some back pain and leg numbness prior to his November 2009 surgery, but was still able to work in construction, installing siding, windows, and roofing; he took over-the-counter pain medication. He testified that he agreed to back surgery to alleviate back pain and numbness, and that while the leg numbness improved after surgery, his back pain was much worse and debilitating and he was limited in lifting, climbing ladders, walking, sleeping, and sitting. His daughter testified that within a day after she picked him up from the hospital after the November 2009 surgery, he was very sweaty and feverish, and the incision site was red and swollen, and they went to the emergency room at the Galesburg VAMC. She testified that she then drove him to Iowa City, and he was quarantined due to infection and eventually had to undergo additional surgery. She testified that she was told by the surgeon that bone shavings had been left in the Veteran's back and it became infected with MRSA. The Veteran testified that he was hospitalized for about 3 months but his pain did not improve and he saw a private doctor, Dr. Whittle. He testified that he went to Iowa City for a third time when the infection returned, and the wound vac was placed to remove the infection, which was successful; the infection had not returned, but the pain and weakness remained the same. The requirements for substantiating a claim for benefits under 38 U.S.C. § 1151 for a low back disability based on surgical/hospital treatment the Veteran received in November 2009, are briefly: that the Veteran was hospitalized by VA/received VA surgical or medical care; that he has additional low back disability following such care; that the additional low back disability was a result of VA treatment provided (and not merely co-incidental); and that the additional disability was due to fault on VA's part or was a consequence not reasonably foreseeable. 38 C.F.R. § 3.361. It is not in dispute that the Veteran was hospitalized by VA and received VA surgical and medical care. It is also not in dispute that he has additional low back disability following the VA hospitalization and treatment (described in the September 2010 consulting VA physician's opinion). The Board finds persuasive the evidence that VA treatment was the proximate cause of the additional low back disability. Notably, the September 2010 opinion-provider opined that the Veteran had a number of complications after his 2009 back surgery, that these were certainly unpredictable in any circumstance, and that it appears the Veteran had a number of events/complications that cannot reasonably be foreseen or anticipated by any competent or prudent health care provider. What remains to be established is that there was fault on the part of VA in the treatment provided (or that the additional disability is a consequence of treatment provided that was not reasonably foreseeable). VA providers have opined that the standard of care the Veteran received was proper; there is no need to belabor that point (despite the Veteran's allegations), in light of the determination that is made. The September 2010 consulting VA physician opined that the Veteran's additional low back disability is due to a series of events (complications following VA treatment) not reasonably foreseeable. The provider is competent to offer the opinions and the Board finds no reason to question the opinions/conclusions reached. In light of the foregoing, the Board finds that all requirements for substantiating a claim under 38 U.S.C. § 1151 are met, and that entitlement to benefits under § 1151 for additional low back disability resulting from VA treatment the Veteran received in November 2009 is warranted. ORDER The appeal to establish entitlement to compensation under 38 U.S.C. § 1151 for additional low back disability resulting from VA hospitalization and surgical and medical care in November 2009 is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs