Citation Nr: 1805649 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-24 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to VA benefits under 38 U.S.C.A. § 1151 for a right knee and leg disability, to include a total knee replacement, as a result of Methicillin-resistant Staphylococcus aureus (MRSA) infection caused by treatment rendered at the Houston VA Medical Center (VAMC) in November 2008. 2. Entitlement to VA benefits under 38 U.S.C.A. § 1151 for a renal disability secondary to right knee and leg disability due to MRSA infection caused by treatment rendered at the Houston VAMC in November 2008. 3. Entitlement to service connection for a heart disability to include as secondary to MRSA infection caused by treatment rendered at the Houston VAMC in November 2008. 4. Entitlement to specially adapted housing benefits. 5. Entitlement to special monthly compensation (SMC) benefits based on the need for regular aid and attendance or homebound status. 6. Entitlement to automobile and adaptive equipment or adaptive equipment only. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Scott W. Dale, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to December 1955, including service in the Republic of Korea. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in April 2008, January 2011, March 2013, January 2015 and March 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2010, January 2011, and July 2015, the Veteran appeared at hearings held at the RO before Decision Review Officers (DROs). Transcripts of those hearings are associated with the file. The issues currently on appeal stem from two separate appeal streams that originated at the Houston RO. In November 2012, among other actions, the Board remanded some of the issues remaining on appeal for further evidentiary and procedural development. After these issues were returned to the Board, they were merged with the remaining issues currently on appeal. In June 2017, the Board denied the Veteran's appeal to establish service connection for obstructive sleep apnea for additional development, remanded an appeal concerning entitlement to a clothing allowance to the Veterans Health Administration (VHA) under a separate cover page, and remanded the issues remaining on appeal for additional development. The Board's prior remand directives and the actions taken by the Agency of Original Jurisdiction (AOJ) will be further discussed below. While the Veteran's clothing allowance appeal has not been returned to the Board by VHA, the issues remaining on appeal have been returned to the Board for further appellate proceedings. In October 2017, the Veteran presented oral testimony in support of his the issues on appeal at a videoconference hearing conducted by the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the record. Characterization of an issue on appeal During the pendency of the Veteran's appeal, the Agency of Original Jurisdiction (AOJ) maintained separate issues concerning entitlement to VA benefits under 38 U.S.C.A. § 1151 for a right knee/leg disability and a total right knee replacement. While noting that the Veteran experienced more than one ailment pertaining to his right knee and leg due to the November 2008 treatment at the Houston VAMC, it is uncontroverted that the resulting knee/leg disabilities led to the right knee replacement surgery. As such, the Board has merged these issues for ease of adjudication. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). The issue has been recharacterized as stated on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND While additional delay is unfortunate, the Board concludes that the issues on appeal must be remanded to ensure that VA has taken all necessary steps to fulfill its duty to assist the Veteran in substantiating his appeal. During the lengthy pendency of the Veteran's appeal, there appears to have been some confusion concerning his assertions of the theories of entitlement he wishes to pursue. These matters were clarified by the Veteran at the October 2017 hearing. In sum, the record reflects that the Veteran underwent cortisone steroid injection in his right knee on November 20, 2008, at the Houston VAMC. In the days following the injections, he presented to the Houston VAMC Emergency Room (ER) on two occasions with complaints of knee pain and swelling; however, the decision was made by medical staff to not provide further treatment or testing on those occasions. Soon thereafter, the Veteran developed a septic right knee with MRSA, necessitating several subsequent surgeries, intense medical treatment, and leading to other, downstream disabilities, to include renal failure, congestive heart failure, and an arthritic right knee which was ultimately replaced. Further, the Veteran alleges that, due to these downstream disabilities, he is entitled to specially adapted housing benefits SMC benefits based on the need for regular aid and attendance or homebound status, and automobile and adaptive equipment or adaptive equipment only. While the AOJ provided the Veteran with VA examinations to address whether the criteria for VA benefits under 38 U.S.C.A. § 1151 for right knee disabilities and renal failure had been met in March 2011 and July 2015, the Board finds these examinations to be inadequate for several reasons. Initially, while both examiners noted that the Veteran's kidney failure was the result of the treatment regimen for MRSA, the medical opinions necessary to adjudicate an appeal for benefits brought under 38 U.S.C.A. § 1151 were neither posed nor addressed. Further, while these opinions were rendered with regard to the Veteran's right knee disabilities, this was done with a focus on the November 20, 2008, steroid injection procedure - which represents only half of the Veteran's assertion. Specifically, the Veteran has consistently alleged that his right knee/leg, renal failure, and heart disability were secondary to the medical decisions not to provide further treatment and/or testing in the days subsequent to the November 20, 2008, steroid injection. Unfortunately, this theory of entitlement has not been addressed in any VA examination or adjudication, thus far. In light of above, the Board concludes that the Veteran must be provided adequate VA examinations to determine whether he is entitled to VA benefits under 38 U.S.C.A. § 1151 for right knee/leg disabilities, renal failure, and/or a heart disability stemming from the November 20, 2008, steroid injection or the medical decisions to deny further treatment and testing at the Houston VAMC ER in the days subsequent to the injection. Also, as the Veteran asserts that his entitlement to specially adapted housing benefits, SMC benefits based on the need for regular aid and attendance or homebound status, and automobile and adaptive equipment or adaptive equipment only, are due to the disabilities manifested downstream to the November 20, 2008, steroid injection and subsequent decisions to refuse further treatment and testing, these issues are inextricably intertwined with those being remanded, herein. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ must obtain and associate with the file all records of VA treatment from the Houston VAMC dated after March 8, 2017, and the Doris Miller VAMC dated after August 19, 2017. Additionally, the Board is interested that all records of VA treatment from the Houston VAMC Emergency Room pertaining to the Veteran between November 21 - 24, 2008, if extant. 2. Thereafter, refer the Veteran's complete file to an orthopedist who has not previously been involved in the Veteran's care, and who, preferably, is not associated with the Houston VAMC, for opinions concerning whether the VA was negligent in performing the November 2008 steroid injection. In addition, the opinion must also address the same questions with respect to the alleged refusal to undertake additional treatment and testing at the Houston VAMC ER in the days after the steroid injection. Inherent in this is a determination as to whether a reasonable health care provider would have conducted additional treatment and/or testing in the days following the steroid injections at the Houston VAMC. The complete file, to include a copy of this REMAND, must be provided to the physician in conjunction with the opinion. The opinion must also address the following: (a) Identify the degree of care expected of a reasonable health-care provider presented with the Veteran's medical circumstances as shown in November 2008 during the injection and subsequent decisions to refuse further treatment and/or testing at the Houston VAMC ER; and (b) state whether the VA failed to exercise the degree of care expected of a reasonable health-care provider presented with the Veteran's medical circumstances. These two questions should include an assessment as to whether a reasonable health care provider would have undertaken additional treatment and/or testing at that time. (c) State whether any failure on the part of VA in undertaking the November 2008 steroid injection and/or properly treat the Veteran's right knee/leg allowed his condition to continue to progress - ultimately developing into MRSA. For the above questions, it is essential that the physician provide a complete rationale for the requested opinions, which identifies the specific evidence reviewed and considered in forming the opinion. 3. Thereafter, refer the Veteran's complete file to a nephrologist who has not previously been involved in the Veteran's care, and who, preferably, is not associated with the Houston VAMC, for opinions concerning whether the VA was negligent in performing the November 2008 steroid injection. In addition, the opinion must also address the same questions with respect to the alleged refusal to undertake additional treatment and testing at the Houston VAMC ER in the days after the steroid injection. Inherent in this is a determination as to whether a reasonable health care provider would have conducted additional treatment and/or testing in the days following the steroid injections at the Houston VAMC. It is noted that the Veteran's theory of entitlement concerning his renal failure is that the November 2008 steroid injection and subsequent, alleged, lack of treatment caused a MRSA infection, leading to renal failure. The complete file, to include a copy of this REMAND, must be provided to the physician in conjunction with the opinion. The opinion must also address the following: (a) Identify the degree of care expected of a reasonable health-care provider presented with the Veteran's medical circumstances as shown in November 2008 during the injection and subsequent decisions to refuse further treatment and/or testing at the Houston VAMC ER; and (b) state whether the VA failed to exercise the degree of care expected of a reasonable health-care provider presented with the Veteran's medical circumstances. These two questions should include an assessment as to whether a reasonable health care provider would have undertaken additional treatment and/or testing at that time. (c) State whether any failure on the part of VA in undertaking the November 2008 steroid injection and/or properly treat the Veteran's right knee/leg allowed his condition to continue to progress - ultimately developing into MRSA and renal failure. For the above questions, it is essential that the physician provide a complete rationale for the requested opinions, which identifies the specific evidence reviewed and considered in forming the opinion. 4. Thereafter, refer the Veteran's complete file to a cardiologist who has not previously been involved in the Veteran's care, and who, preferably, is not associated with the Houston VAMC, for opinions concerning whether the VA was negligent in performing the November 2008 steroid injection. In addition, the opinion must also address the same questions with respect to the alleged refusal to undertake additional treatment and testing at the Houston VAMC ER in the days after the steroid injection. Inherent in this is a determination as to whether a reasonable health care provider would have conducted additional treatment and/or testing in the days following the steroid injection at the Houston VAMC. It is noted that the Veteran's theory of entitlement concerning his renal failure is that the November 2008 steroid injection and subsequent, alleged, lack of treatment caused a MRSA infection, leading to a heart disability. The complete file, to include a copy of this REMAND, must be provided to the physician in conjunction with the opinion. The opinion must also address the following: (a) Identify the degree of care expected of a reasonable health-care provider presented with the Veteran's medical circumstances as shown in November 2008 during the injection and subsequent decisions to refuse further treatment and/or testing at the Houston VAMC ER; and (b) state whether the VA failed to exercise the degree of care expected of a reasonable health-care provider presented with the Veteran's medical circumstances. These two questions should include an assessment as to whether a reasonable health care provider would have undertaken additional treatment and/or testing at that time. (c) State whether any failure on the part of VA in undertaking the November 2008 steroid injection and/or properly treat the Veteran's right knee/leg allowed his condition to continue to progress - ultimately developing into MRSA and a secondary heart disability. For the above questions, it is essential that the physician provide a complete rationale for the requested opinions, which identifies the specific evidence reviewed and considered in forming the opinion. 5. Thereafter, take any additional development necessary to fully develop and adjudicate the Veteran's appeal concerning the issues of entitlement to specially adapted housing benefits, SMC benefits based on the need for regular aid and attendance or homebound status, and automobile and adaptive equipment or adaptive equipment only. The AOJ is on notice that, in addition to the disabilities which are the subjects of this remand, the Veteran has several and severe service-connected disabilities relating to his lower extremities which must also be considered with regard to entitlement to these benefits. The requested development in regard to these issues should be considered with regard to the Veteran's already service-connected disabilities and those remanded, herein. 6. Thereafter, the AOJ must readjudicate the Veteran's appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case (SSOC) should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matters 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 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) (2017).