Citation Nr: 18143118 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-22 127 DATE: October 18, 2018 ORDER Entitlement to an initial rating higher than 10 percent for the service-connected post-stab wound adhesion is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a Methicillin-resistant Staphylococcus aureus (MRSA) infection is denied. FINDINGS OF FACT 1. The Veteran’s post-stab wound adhesion does not cause symptoms which produce moderately severe functional impairment of muscle group XIX. 2. The Veteran did not contract a MRSA infection from VA. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for the service-connected post-stab wound adhesion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.73, Diagnostic Code 5319 (2017). 2. The criteria for compensation under 38 U.S.C. § 1151 for a MRSA infection have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has a claim for a TDIU pending, but elected to participate in the Rapid Appeals Modernization Program (RAMP) in January 2018. In February 2018, VA notified him that his appeal for a TDIU was being processed under the RAMP review selected. Accordingly, the Board cannot take jurisdiction over this claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). While VA medical records were received after the June 2016 Statement of the Case, they did not include new and relevant evidence with respect to these two issues, and a waiver of AOJ review is unnecessary. REFERRED The issue of service connection for a MRSA infection as directly incurred in service has been raised by the Veteran and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. A claim based on a theory of direct service connection relies on resolution of legal and medical questions completely separate and distinct from those in a claim for benefits under 38 U.S.C. § 1151. Therefore, the claims are not intertwined. 1. Entitlement to an initial rating higher than 10 percent for the service-connected post-stab wound adhesion is denied. The Veteran seeks an initial rating higher than 10 percent for the service-connected post-stab wound adhesion, claimed as stomach pain, gas, bloating, and stomach cramps. The RO granted service connection in May 2013 as secondary to the service-connected stab wound with residual scar. His wound is rated at 10 percent based on a moderate injury to muscle group XIX under 38 C.F.R. §§ 4.73, 4.114, Diagnostic Codes 7319. He was afforded a VA general medical examination to assess this disability in September 2011. The Veteran complained of stomach cramps, pain, and nausea, especially after eating and was diagnosed with status post stab wound adhesion due to surgery. In April 2012, he was afforded VA examinations that focused on esophageal conditions, intestinal conditions, stomach and duodenal conditions, and muscle injuries. Regarding the esophageal conditions examination, the examiner noted that the Veteran was diagnosed with GERD in 2011, which reportedly began after being stabbed in 1973, the treatment for which did not include taking continuous medication. There was no evidence of esophageal stricture, spasm, or acquired diverticulum, and no other pertinent findings other than symptoms of nausea. An upper endoscopy was conducted which showed mucosal thickening in distal gastric antrum and a mild degree of gastroesophageal reflux. Regarding the intestinal conditions examination, the examiner determined the Veteran did not have an intestinal condition, including irritable bowel syndrome or irritable colon syndrome. Regarding the stomach and duodenal conditions examination, the examiner noted the Veteran was diagnosed with dyspepsia in 2011, which was manifested by frequent heartburn but for which he did not take continuous medication. The examiner noted the dyspepsia did not cause recurring episodes of non-severe or severe symptoms, abdominal pain, anemia, weight loss, nausea, vomiting, hematemesis, melena, or incapacitating episodes and there were no other pertinent findings except those findings from the upper endoscopy. Regarding the muscle injuries examination, the examiner determined there was a history of a penetrating muscle injury in muscle group XIX or the muscles of the abdominal wall. The examiner determined the muscle injury did not affect muscle substance or function, and there were no signs or symptoms of power loss, weakness, lowered threshold of fatigue, fatigue-pain, impaired coordination, or movement uncertainty. The examiner was asked to opine on whether the Veteran’s acid reflux was related to his post-stab wounds adhesion caused by surgery, and he concluded that it was less likely than not related because his GERD diagnosis was rendered many years after the surgery. He was afforded another VA muscle injuries examination in March 2015, and the examiner noted he was diagnosed with a stomach adhesion status post stab wound. The Veteran reported experiencing weakness, fatigue, soreness, and infections and the examiner indicated the affected muscle group was group XIX or the muscle of the abdominal wall. The examiner determined that the muscle injury did not cause loss of power, weakness, lowered threshold of fatigue, fatigue pain, impaired coordination, or uncertain movement, there was no evidence of muscle atrophy, and there were no other pertinent physical findings. While the Veteran reported infections and lesions on his abdomen, these symptoms are associated with his MRSA infection, which is discussed in a separate section. VA medical records from October 2010 to April 2015 are associated with the claims file and do not document moderately severe symptoms that warrant a 30 percent rating under Diagnostic Code 5319. Despite undergoing regular physical examinations, including abdominal evaluations, and physical medicine rehabilitation visits, the records do not contain evidence of muscle loss, swollen or hardened muscles, muscle atrophy, or other signs and symptoms of muscle disability, including loss of power, weakness, or lowered threshold of fatigue resulting in impaired flexion or lateral movement of the spine or impaired support and compression of the abdominal wall and lower thorax. While the records show complaints of abdominal pain, these complaints are always related to the Veteran’s gastrointestinal disorders, which, as discussed in more detail below, are not related to his stab wound. To the extent the Veteran seeks a higher rating based on his gastrointestinal symptoms and disorders, the Board finds that these symptoms and disorders are not related to his stab wound. In making this decision, the Board relied on the service treatment records, which are negative for gastrointestinal complaints or diagnoses. The Board also relied on the March 2015 VA examinations and negative opinion, which is supported by the post-service medical records. In October 2010, the Veteran sought treatment at VA and reported that he was generally healthy, was not taking medication, and had not seen a doctor in 30 years. A January 2011 abdominal examination was normal and he was not diagnosed with GERD or dyspepsia until May 2011. Accordingly, the Veteran’s gastrointestinal issues are unrelated to his stab wound and will not be considered to support his claim for a higher rating. Finally, although the Veteran reported experiencing weakness, fatigue, and soreness during the March 2015 examination, a physical examination did not reflect that the Veteran’s stab wound caused moderately severe impairment. Furthermore, the medical records do not contain complaints of or treatment for symptoms of weakness, fatigue, and soreness related to the stab wound. The Board thus finds that Veteran’s muscle injury symptoms do not warrant a 30 percent rating or higher, and the claim for a higher rating is denied. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a MRSA infection is denied. The Veteran seeks entitlement to benefits under 38 U.S.C. § 1151 for a MRSA infection. He contends that he contracted a MRSA infection during treatment at VA. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death, compensation may be awarded in the same manner as if the additional disability or death were service-connected. See 38 C.F.R. § 3.361(a). A disability is a qualifying additional disability if the additional disability was not the result of the veteran’s willful misconduct, and was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (A) 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 (B) an event not reasonably foreseeable. See 38 C.F.R. § 3.361(c)-(d). Section 1151 contains two causation elements; the disability must not only have been caused by the hospital care or medical treatment but it must also be proximately caused by VA’s fault. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013). Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). In short, to establish eligibility for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must show that he has an additional disability that is etiologically-linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus, the claim must be denied. The Board finds that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for a MRSA infection because the evidence does not show that the Veteran has an additional disability that was caused by VA.VA medical records show that MRSA was suspected in February 2012 and officially diagnosed in August 2012. The Veteran has made several contentions regarding how he believes he contracted MRSA. In his August 2012 claim, he stated he contracted it following treatment at VA for gout in February 2011. In December 2012, he stated the MRSA infection began in February 2012 and was a direct result of VA gastrointestinal examinations, treatments, and procedures. During the Board hearing, he contended that he contracted MRSA in service during treatment for his stab wounds; this contention is separate from the § 1151 claim and has been referred for AOJ adjudication. VA records show that the Veteran presented to VA Loma Linda Healthcare System on February 22, 2012 and complained that he had been punched in the head two weeks prior by gang members. He reported swelling on the left side of his head and ear, dizziness, and headaches. He further reported that, after the left-sided swelling began subsiding, he experienced swelling at the base of his skull and a small blood-filled wound on the base of his skull that his wife drained with a needle. The Veteran left before receiving treatment and returned on February 24, 2012 with the same complaints. An examination revealed an open boil on the right occipital region, left eye reddening and swelling, and top lip swelling with a small ulcer. After examination, he was assessed with an open boil in the occipital region and it was noted that MRSA could not be excluded. He subsequently sought treatment at VA several times for swelling in his armpit and an abscess on the back of his head. On August 15, 2012, he presented with painful swelling on the posterior scalp and right underarm that resolved with antibiotics but recurred within one week of being off antibiotics. He was prescribed antibiotics and scheduled for a nasal swab at the next visit to test for MRSA colonization. On August 22, 2012, the MRSA nares DNA test results were positive. On August 30, 2012, he was assessed with recurrent skin abscesses and likely MRSA skin colonization. The Veteran was afforded a VA skin diseases examination in May 2015 and, after examination and review of the records, the examiner concluded that it was less likely than not that the Veteran’s MRSA was caused by or worsened by VA. She stated that the Veteran’s strain of MRSA is community-acquired which is “most often associated with skin and soft tissue infections in young, healthy individuals with no recent healthcare exposure” rather than healthcare-associated MRSA, which is “associated with severe, invasive disease in hospitalized patients.” She noted that the Veteran presented to VA in February 2012 with swelling and a “blood pocket” on his head, which “popped” and “nothing but blood came out.” She determined that the swelling and lesions were the initial manifestation of community-acquired MRSA and his secondary skin abscesses on his neck, armpits, and abdomen are secondary to his community-acquired MRSA. She further concluded that there is no evidence of carelessness, negligence, error in judgment, or similar instance of fault on part of VA. After review of the evidence, the Board finds that the Veteran’s claim fails to satisfy the criteria for benefits under § 1151 because the evidence does not show causation or proximate cause. The Veteran does not allege that a specific VA treatment or examination caused his MRSA infection. Instead, he vaguely asserts that he contracted the MRSA infection following VA treatment, shots, blood work, and gastrointestinal examinations, or that his VA treatment has been “negligent” in some way. As previously mentioned, merely showing that he received care or treatment and he has an additional disability does not satisfy the criteria for compensation under § 1151. See 38 C.F.R. § 3.361(c)(1). Further, the Veteran presented to VA with the occipital wound following an assault that took place two weeks prior; thus, the evidence of record does not establish that VA treatment caused his MRSA infection. Although the Veteran testified the MRSA infection began along the scar from his in-service stab wound, that is not corroborated by the medical records. Finally, the Veteran has not specifically alleged proximate cause, i.e. how VA was careless or that the event that caused his MRSA infection was not reasonably foreseeable. See id. § 3.361(d)(1)-(2). He has not indicated that any medical professional has ever opined the MRSA infection was linked to VA treatment in any way. Finally, the Board found the VA examiner’s medical opinion highly probative that the Veteran’s MRSA infection was not caused by VA treatment. After review of his medical records, statements, and the examination results, she concluded that his MRSA infection is community-acquired, rather than healthcare-acquired, and it is unlikely that he contracted it during VA treatment. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to compensation under 38 U.S.C. § 1151 and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel