Citation Nr: A20007359 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191028-39902 DATE: April 30, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a sepsis infection is denied. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran’s sepsis infection, which constitutes an additional disability, resulted from the Veteran’s ventral incisional hernia repair performed at a VA Medical Center on November 30, 2018. 2. The preponderance of the evidence indicates that the additional disability, sepsis, was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault as a result of VA treatment, nor was it 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 sepsis infection have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran elected a Direct Review of his appeal when he submitted his October 2019 VA 10182 Notice of Disagreement Form. The Board’s review is limited to evidence submitted to VA as of that date and no additional evidence has been received. 1. Entitlement to compensation under 38 U.S.C. § 1151 for sepsis infection and residuals from a is denied. The record shows that the Veteran underwent a surgical laparoscopic umbilical hernia repair with mesh on November 30, 2018. See June 2019 CAPRI records. On January 22, 2019, the Veteran underwent a colonoscopy with colon polyp removal. Id. On January 23, 2019, the Veteran was admitted to a private hospital for 5 days with a diagnosis of septic shock due to a liver abscess and acute kidney injury likely due to septic shock. He was subsequently treated with IV and oral antibiotics and the infection resolved. See e.g., July 2019 Liver CT scan results, St. Cloud VA Medical Center. The Veteran now seeks compensation for sepsis infection under the provisions of 38 U.S.C. § 1151. The Veteran contends that he suffered illness, weakness, unintentional weight loss after his hernia surgery on November 30, 2018 and resultant sepsis infection. He further indicates that post-recovery he continues to experience weakness and stomach pain as a result of a sepsis infection caused by VA surgical and medical treatment. See May 2019 VA 21-4138 Statement in Support of Claim. He further asserts that he had many out of pocket medical expenses. Id. As an initial matter the Board notes that a medical reimbursement claim is not part and parcel of a claim for benefits under 38 U.S.C. § 1151. Nor is an appeal for medical reimbursement presently before the Board. Accordingly, the Board has no jurisdiction to review the Veteran’s contention of uninsured or unreimbursed medical expenses due to a sepsis infection. As it pertains to the Veteran’s appeal for benefits pursuant to 38 U.S.C. § 1151, the purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). The law provides that a veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability... were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). A claim under 38 U.S.C. § 1151 must meet three specific criteria before benefits can be granted. First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before 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 to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). 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). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of “hospital care, medical or surgical treatment, or examination” furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Notably, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran underwent a hernia operation at a VA Medical Center on November 30, 2018. The Veteran attributes additional disability, namely subsequent sepsis, to this operation. On January 23, 2019 the Veteran was transported to a private hospital by ambulance. He was seen in the emergency department and diagnosed with sepsis and systemic inflammatory response syndrome (SIRS). The Veteran had fever, was diaphoretic and hypotensive, and had a white blood cell count of 23. He had a complete work up including chest x-ray, chest CT scan, abdominal CT scan, EKG and blood work, but no clear etiology for sepsis was initially detected. The Veteran indicated that he had some recent trauma to his epigastrium from his two-year old grandson elbowing him. The Veteran was admitted to the intensive care unit (ICU) and broad-spectrum antibiotics were administered. The Veteran had pain in the right upper quadrant of his abdomen and the CT scan showed soft tissue thickening in the epigastric region. He was seen by an infectious disease specialist who aspirated a presumed hepatic abscess on January 25, 2019. Blood cultures were positive for E. coli and para sanguinis streptococcus. The final diagnosis was septic shock secondary to intra-abdominal process. A January 24, 2019 private infectious disease consultation treatment record noted that the Veteran was admitted after near syncope from weakness as well as 103 fever. A CT scan showed a small lesion on the left hepatic lobe which was too small to drain but was sampled. There was also fatty stranding adjacent to the liver abcess. The private physician opined that the Veteran’s condition was most likely a postsurgical complication of the hernia repair at the VA. Although the Veteran had undergone a colonoscopy the day before he became ill with sepsis, the private doctor stated it was too soon in time to have caused an infection. He also noted that the umbilicus looked fine and that there was no abdominal erythema. See June 2019 Medical Treatment Record-Non-Government Facility. A January 29, 2019 discharge note indicates that there were suspicions that his infection could have potentially been related to his colonoscopy at the VA. The Veteran was afforded a VA examination to consider his claim in August 2019. The VA examiner noted that his opinions were based upon a complete review of the Veteran’s claim file to include both VA treatment and private treatment records. He opined that it was unlikely that the Veteran developed a liver abcess from the colonoscopy he had done at VA one day prior to diagnosis because it was not medically feasible for it to have occurred in such a short time frame. The August 2019 VA examiner offered several opinions regarding the issue of causation pertaining to the Veteran’s septic infection. First, the examiner opined that the Veteran’s sepsis was less likely than not caused by or became worse as a result of the VA treatment at issue. Further, the additional disability suffered by the Veteran was less like than not the result of the attending VA’s personnel. Also, it was less likely than not that the Veteran’s additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider or from a failure to follow the appropriate standard of care. Finally, the May 2019 VA examiner opined that the Veteran’s septic infection was less likely than not due to a failure on the part of VA to timely diagnose and/or properly treat the disease, allowing the disease to progress. The VA examiner acknowledged that although it was possible that the Veteran’s diagnosis of sepsis was due to the umbilical hernia repair that he underwent at VA on November 30, 2018, studies have reported that approximately 15 percent of patients undergoing the same procedure experienced one or more complications. Nevertheless, no clear predictive risk factors for post-surgical complications of umbilical hernia repair have been identified. Significantly, the examiner stated that the VA surgeon followed the proper standard of care for incisional hernia repair. Specifically, the Veteran had physical examinations including one on the same day with normal results. The Veteran’s surgery went well without any complications and he was discharged home on the same day. VA contacted him by phone on December 3, 2018 and he had no complaints. The Veteran returned for a follow up examination with the VA surgeon on December 7, 2018 and had no significant complaints. He was advised not to perform any heavy lifting. The examiner recognized that the Veteran was diagnosed with septic shock secondary to an intra-abdominal process. In the September 2019 AMA rating decision, the Agency of Original Jurisdiction (AOJ) found that an additional disability arose during a period of hospital care, medical or surgical treatment, or examination. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). After careful review of the Veteran’s claim file, the Board finds that compensation under 38 U.S.C. § 1151 is not warranted. While the medical evidence establishes that the Veteran has additional disability due to sepsis infection that developed as a result of the umbilical hernia repair he underwent at VA as opposed to the colonoscopy also performed at the VA Medical Center, compensation is authorized under 38 U.S.C. § 1151 only when that disability is due to fault on the part of VA or are not reasonably foreseeable. In this case, the May 2019 VA medical opinion, which is uncontroverted indicated that all treatment provided by VA was necessary, was within the standard of care, and that complications of the treatment such as the Veteran’s septic infection were reasonably foreseeable. Notably, the Veteran was apprised of the risk of post-surgical complications including infection and consented, evidenced by his signature on an informed consent form. See November 30, 2018 Informed Consent Form, CAPRI records. (Continued on the next page)   As to the Veteran’s lay statements and belief that VA was negligent in his care, they have been considered. However, while he is competent to report observable symptomatology, he lacks the medical training and expertise necessary to determine whether he sustained additional disability due to a medically inappropriate standard of care. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In sum, the record establishes by a preponderance of evidence that the septic infection addressed in this decision did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA and are reasonably foreseeable results of that treatment. Therefore, the criteria for disability compensation under 38 U.S.C. § 1151 for a sepsis infection have not been met and the claim must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.