Citation Nr: 18159493 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 10-26 093 DATE: December 19, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a lumbar spine disorder, to include L4-5 discitis with bacteremia, claimed as due to Department of Veterans Affairs (VA) treatment coincident with hospitalization for mild heart failure, hypertension, and hyperlipidemia at the VA Medical Center (VAMC) in Gainesville, Florida, from January 26, 2007, to January 31, 2007 is denied. FINDING OF FACT The VA treatment provided in association with the Veteran’s hospitalization for mild heart failure, hypertension, and hyperlipidemia at the VAMC in Gainesville, Florida, from January 26, 2007 to January 31, 2007 did not result in the Veteran incurring any additional disability, nor is the Veteran’s lumbar spine disorder a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of VA hospital treatment, or the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for a lumbar spine disorder, to include L4-5 discitis with bacteremia, are not met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1966 to October 1968. This case comes on appeal of a February 2008 rating decision. The matter has previously been before the Board. In March 2015, the Board remanded the claim to afford the Veteran a VA examination. The record demonstrates that the AOJ attempted to schedule the Veteran for an examination, however the Veteran declined due to the distance he would have to travel. See October 2016 VA Correspondence. The AOJ made an additional attempt to schedule the Veteran for an examination at a closer facility but was informed that § 1151 examinations could not be performed at the community-based outpatient clinic (CBOC) where the Veteran wanted to be examined. This information was communicated to the Veteran via letter in March 2017, and the Veteran was informed that he had the option to have the examination performed at a VA Medical Center or VA Hospital, a VA contracted facility, or by a private examiner at the Veteran’s expense. The Veteran did not provide a response to the March 2017 letter and phone calls to the Veteran were unsuccessful. Accordingly, the AOJ obtained a medical opinion without examination. The case was returned to the Board in June 2017. In October 2017, having reviewed the claims file, the Board determined that an additional medical opinion was necessary and requested one in accordance with 38 C.F.R. § 20.901. The requested opinion was received in January 2018. The Veteran was provided with a copy of the opinion and given an opportunity to respond. See 38 C.F.R. § 20.1304. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a lumbar spine disorder, to include L4-5 discitis with bacteremia, claimed as due to Department of Veterans Affairs (VA) treatment coincident with hospitalization for mild heart failure, hypertension, and hyperlipidemia at the VA Medical Center (VAMC) in Gainesville, Florida, from January 26, 2007, to January 31, 2007 In January 2007, the Veteran was hospitalized at Gainesville VAMC for mild heart failure, hypertension, and hyperlipidemia. In February 2007, the Veteran was seen for complaints of pain in his back. Upon further examination, the Veteran was determined to have L4-5 discitis and bacteremia. In April 2007, the Veteran’s diagnosis was reported as “MSSA [Methicillin sensitive Staphylococcus aureus bacteremia] L4-5 discitis.” Medical records since the diagnosis have documented continuing complaints of low back pain and medication to treat this pain. The Veteran contends he is entitled to 38 U.S.C. § 1151 benefits because he believes that the infection that caused discitis and bacteremia was incurred as a result of his January 2007 hospitalization. The Veteran’s claim for 38 U.S.C. § 1151 was filed after October 1, 1997, which requires that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA. 38 U.S.C. § 1151; VAOPGCPREC 01-99 (February 16, 1999). In such cases, compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability or death was service-connected. A disability is a qualifying additional disability if it was not the result of the Veteran’s willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination, furnished under any law administered by the Secretary, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. See, Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151. Thus, § 1151 contains two causation elements: a Veteran’s disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by VA’s fault or by an unforeseen event. Even if the disability was caused by VA treatment, that alone is not sufficient to warrant an award under § 1151. To determine whether additional disability exists within the meaning of § 1151, the Veteran’s condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination is not considered a cause of the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability; 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 or, in appropriate cases, the Veteran’s representative’s informed consent. To determine whether there was informed consent, VA will consider whether the health care provides substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances as specified in § 17.32(b), as in emergency situations. Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). To that end, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In the present case, the record demonstrates that the Veteran was treated at a VA hospital in January 2007 and developed an infection a few days later that has led to a low back disability. Therefore, at issue is whether the infection was proximately caused by VA treatment, and if so, whether this was due to fault or accident by VA in the performance of that treatment. In January 2008, VA obtained a medical opinion addressing the Veteran’s claim. The examiner reviewed the Veteran’s record and reported that, following the January 2007 hospital admission, the Veteran was admitted for treatment in February 2007 for a “totally unrelated problem of severe, sudden onset, 10/10 type of low back pain and was found to have a discitis infection at L4-L5 and grew staph MSSA.” The examiner’s report was unclear as to whether the Veteran had an ongoing low back disability. Instead, the examiner concluded, “I see absolutely no evidence of fa[u]lty care, and this does represent an extremely high level of care with a successful outcome in all regard.” This opinion did not address whether the infection was caused by the Veteran’s January 2007 hospitalization and did not address the legally correct standard for actual and proximate causation in accordance with the Veteran’s claims. As a result, the Board determined that this opinion was not adequate. As was noted above, the AOJ unsuccessfully attempted to afford the Veteran a full VA examination. Instead, in June 2015, the Veteran’s claims file was submitted for a new medical opinion. There, the examiner concluded that it was “not likely that the Veteran developed an additional disability of his lumbar spine as a result of medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, while he was hospitalized for mild heart failure at the VAMC in Gainesville, Florida, from January 26, 2007 to January 31, 2007. The event was not f[o]reseeable, because it is [a] totally separate event, and new issue unconnected to the hospital stay in question.” The examiner provided three points of rationale. The first was that there were no invasive surgical procedures or complications during the hospitalization to cause a disability of the lumbar spine. The second was that discharge summaries from the subsequent admissions for treatment of the low back demonstrated the onset of a new condition, not connected to the treatment during the January 2007 hospitalization. Third, the most likely cause of the lumbar infection—as set forth in a medical article from “Up to Date” provided by the examiner—was hematogenous spread from a distant site or focus of infection; direct inoculation from trauma or spinal surgery; or contiguous spread from adjacent soft tissue infection. Although the June 2015 opinion was correct that the Veteran did not undergo any invasive procedures during his January 2007 hospitalization, the evidence demonstrates that the Veteran was administered blood tests and intravenous (IV) therapy at that time. Indeed, a February 2007 VA clinical record indicated that, given the Veteran’s recent admission for chest pain, there was high concern for bacteremia and possible abscess/discitis. The “Up to Date” article submitted with the June 2015 opinion also stated that there was an increase in cases of nosocomial bacteria due to intravascular devices and other forms of instrumentation. Neither the January 2008 or June 2015 opinions addressed whether the Veteran’s spine infection could have been caused by IV treatment or blood tests during his hospitalization. Accordingly, in October 2017, the Board requested an outside medical opinion. In January 2018, VA received an opinion from Dr. B.D., an expert in internal medicine. Dr. B.D. was asked to opine whether it was at least as likely as not that the Veteran developed an additional disability of his lumbar spine due to VA treatment while hospitalized in January 2007, to specifically include as due to the use of an IV and the administering of blood tests. If so, Dr. B.D. was asked to opine as to whether it was at least as likely as not that any such additional disability was a result of medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or, whether any additional disability was the result of an event that was not reasonably foreseeable. Addressing the first question, Dr. B.D. first discussed the predisposing factors for the development of staphylococcal discitis as well as how those factors related to the Veteran’s health conditions. Dr. B.D. referenced medical research that demonstrated that, in most cases, patients that developed bacterial spinal discitis had one or more predisposing underlying conditions, such as diabetes mellitus, alcoholism, HIV infection, a spinal abnormality or intervention, or a potential local or systemic source of infection. Other medical research expanded the list of potential factors, noting that an increase in incidence of spinal discitis was attributed to an aging population, increasing prevalence of immunodeficiency and improved radiological techniques. This was in addition to other risk factors, to include diabetes mellitus, malignancy, alcohol dependence syndrome, liver cirrhosis, and intravenous drug use. Dr. B.D. noted a recent publication from the University of Michigan that outlined these risk factors and pointed out that, among them, problems related to dental hygiene were frequently mentioned. As this research related to the Veteran and his condition, Dr. B.D. stated that “careful review of the medical record indicate[d] that the Veteran had a number of chronic conditions that may have predisposed him to infectious complications. Among these are chronic heart failure aortic stenosis, atrial fibrillation, diabetes mellitus, and poor dental hygiene.” Dr. B.D. continued that it was “worth mentioning that the patient’s dental diseases were so prominent that he had a large number of teeth pulled and was already wearing partial dentures in 2007.” As to whether the January 2007 hospitalization and medical interventions caused or contributed to the Veteran’s spinal condition, Dr. B.D. opined that this was less likely than not. He reported that the close proximity in time between the hospitalization and the infection could lead one to see a causal relationship, however it was likely a coincidence. Indeed, he continued, “spinal infections and abscesses may fester for a long time before becoming suddenly or subacutely symptomatic,” and there was “nothing in the medical record to suggest that an infection was introduced during the January hospitalization.” Instead, the Veteran’s MRI from that time indicated changes that were consistent with a chronic condition and there were other structural abnormalities. Dr. B.D. posited that, “in the setting of existing structural spinal abnormality, the presence of chronic diseases, including dental infections, may have resulted in discitis.” Dr. B.D. concluded by stating that it was notable that the Veteran’s discitis was caused by methicillin sensitive staphylococci (MSSA) rather than methicillin resistant staphylococci (MRSA), as hospital-acquired staph infections were more likely to be MRSA. To Dr. B.D., this fact indicated that the infection may have been community-acquired. Although Dr. B.D. concluded that it was less likely than not that the Veteran’s January 2007 hospitalization and VA treatment caused or contributed to the Veteran’s low back disability, he also reviewed the procedures performed by VA providers and found no evidence of clinical deficiency. According to his review, there was no evidence of medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Additionally, there was no evidence that the Veteran’s low back condition was due to an event that was not reasonably foreseeable. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s lumbar spine disorder was caused by VA medical treatment. The Board notes the Veteran’s contentions—specifically in his claim for compensation and his formal appeal—that he does not see how he could have developed a staph infection by any means other than his hospitalization. As a layperson, however, the Veteran, is not competent to assert theories of causation that require medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Furthermore, the Board notes the Veteran’s submission in August 2017 of a Medline Plus article on the risk factors for staph infections. The article itself does not offer any direct support for the Veteran’s claim. Additionally, the Board notes that, although Dr. B.D. did not directly address the Medline Plus article, he had opportunity to review the article, and his opinion adequately discussed the information in the article’s contents. Accordingly, as the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel