Citation Nr: 21002109 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-29 877 DATE: January 12, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left leg below-the-knee amputation surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision. This appeal was previously before the Board in October 2018 and July 2020. The October 2018 Board decision denied the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for left leg below-the-knee amputation surgery. In February 2020, however, the United States Court of Appeals for Veterans Claims granted a January 2020 Joint Motion for Remand (JMR), thereby vacating the October 2018 Board denial and remanding the case back to the Board for additional development. Thereafter, in July 2020, the Board remanded the Veteran’s appeal back to the Agency of Original Jurisdiction (AOJ). Entitlement to compensation under 38 U.S.C. § 1151 for left leg below-the-knee amputation surgery is remanded. The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for left leg amputation below the knee as a result of being placed in a recovery room with another patient leading to contracting methicillin-resistant Staphylococcus aureus (MRSA) following a December 2013 surgery. See June 2020 Third Party Correspondence; June 2016 VA Form 9; February 2016 Email Correspondence. The Veteran also contends that following the November 2014 amputation, he developed additional disability, including nerve and muscle damage causing pain. Id. As discussed in the Board’s July 2020 remand, the Veteran contends he contracted MRSA from another patient, named “REDACTED or Norm,” with whom the Veteran was in close proximity over a period of approximately six weeks, while rehabilitating at the St. Cloud VAMC following a December 2013 surgery on his left leg. See June 2020 Third Party Correspondence; June 2020 Buddy/Lay Statement; June 2016 VA Form 9; February 2016 Email Correspondence. The Veteran’s VA treatment records note the Veteran had a left lower extremity embolectomy in December 2013 and was diagnosed with MRSA at the time he was admitted for his left leg amputation in November 2014. See November 2014 VA treatment records. Pursuant to the January 2020 JMR, the Board, in July 2020, remanded the Veteran’s appeal for two main actions. First, the Board instructed the AOJ to give the Veteran additional opportunity to provide information identifying the servicemember with whom he cohabitated at the St. Cloud VAMC while rehabilitating following the December 2013 surgery on his left leg, including the approximate dates of such cohabitation, after which the AOJ was to make reasonable efforts to obtain the relevant records in conformity with VA General Counsel’s Precedential Opinion 05-2014. See Molitor v. Shulkin, 28 Vet. App. 397, 410 (2017). The Board further indicated that “if any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken,” adding that “if the RO determines that it cannot attempt to obtain the identified servicemembers’ records, the RO should notify the Veteran why it will not undertake these efforts.”   Second, the Board instructed the AOJ to obtain an addendum VA opinion, one that would address the Veteran’s contention of contracting MRSA from another patient while rehabilitating at the St. Cloud VAMC following a December 2013 surgery on his left leg, and his claim that the VA surgeon failed to round off his shin bone during the 2014 surgery. In July 2020, following the Board’s remand, the AOJ sent a letter to the Veteran, asking him to provide information identifying the servicemember with whom he cohabited at the St. Cloud VAMC while rehabilitating following the December 2013 surgery on his left leg. 07/15/2020, Subsequent Development Letter. In August 2020, the Veteran’s attorney responded to the AOJ’s letter. The attorney indicated that “[REDACTED] was being treated for an infection at the St. Cloud VAMC in building 50 on the second floor between the time that Mr. [REDACTED] arrived on December 16th [2013] and approximately January 27, 2014,” adding that “REDACTED was still rehabilitating when the Veteran was discharged.” The Veteran’s attorney requested that “VA substantiate [the Veteran]’s claim that he developed a MRSA infection as a result of cohabiting with REDACTED by obtaining records from the St. Cloud VAMC regarding [the Veteran]’s roommate during his hospitalization and the infection protocols used in the room while [the Veteran] was inpatient.” There is no indication that the AOJ made any subsequent attempts the Veteran’s claim. Furthermore, there is no indication that the AOJ notified the Veteran as to why it would not undertake these efforts. The Board finds that the AOJ did not substantially comply with the Board’s remand directive. The Veteran responded to the AOJ’s July 2020 development letter by providing detailed information regarding the dates and location of the Veteran’s in-patient treatment at the St. Cloud VAMC. Although the Veteran does not recall the last name of REDACTED, he has submitted sufficiently detailed information to guide the AOJ in the process of identifying the fellow servicemember and requesting any relevant records. A remand is therefore necessary for the AOJ to contact any appropriate source to try to ascertain the identity of REDACTED and, if his identity is ascertained, to obtain any relevant records. As directed by the Board in the 2020 remand, if the RO determines that it cannot attempt to obtain the identified servicemembers’ records, the RO should notify the Veteran why it will not undertake these efforts. As noted in the January 2020 JMR, one of the Veteran’s assertions is that VA demonstrated carelessness, negligence, and error in judgment during treatment for and recovery from the Veteran’s December 2013 embolectomies. More specifically, he asserts that he was placed near a patient diagnosed with a MRSA infection. See 06/14/2020, Third Party Correspondence. In this regard, the Veteran’s attorney representative has contended that the VAMC should be able to identify the Veteran’s room and then who co-occupied the Veteran’s room during the relevant time period. In July 2020, the Board remanded for a VA opinion that would consider the Veteran’s assertion of carelessness, negligence, and error in judgment during treatment for and recovery from the Veteran’s December 2013 embolectomies. The Veteran underwent a VA examination in September 2020. Regarding the Veteran’s medical history, the examiner noted the following: [The Veteran] notes that he developed clots in his legs 2013, and was evaluated at St. Joseph’s in the Twin Cities. He was found to have arterial occlusion and went to surgery at that time to perform bypasses left LE arteries. Went to St. Cloud VA for Rehab. He stayed in Rehab for approximately 8-12 weeks. He states that over the course of the year he had slow atrophy of the foot with vascular stasis findings including hair loss, smooth, shiny skin of the foot, progressive discoloration of the foot from pink, to pale to red to blue. He provided pictures documenting the progression. He was found to have no pulse of the foot around 5/2014. He developed significant ischemic symptoms of pain, burning, etc. He also developed a non-healing ulcer of the left great toe. He was scheduled for amputation of left foot completed 11/2014. The September 2020 VA examiner opined that it is less likely than not that the contraction of MRSA was a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. In the rationale, the examiner noted that the MRSA infection occurred in February 2015, that the incubation period for MRSA ranges from one to ten days, and, therefore, the February 2015 MRSA infection was not an immediate complication of the October 2014 below the knee amputation. Regarding the Veteran’s assertion that the VA surgeon failed to round off his shin bone during the 2014 surgery, the VA examiner indicated that this was not supported by records or any medical evidence. Finally, regarding the Veteran’s assertion that he contracted MRSA from another patient while rehabilitating at the St. Cloud VAMC following the December 2013 surgery on his left leg, the examiner indicated that this was also not supported by records or any medical evidence. The September 2020 VA opinion has deficiencies that warrant a new opinion. Significantly, the VA examiner did not provide a clear explanation for his conclusions that the VA surgeon failed to round off his shin bone during the 2014 surgery and that the Veteran did not contract MRSA during rehabilitation at the St. Cloud VAMC. For both conclusions, the examiner simply stated that these assertions are not supported by the evidence of record, an insufficient rationale as it did not explain why. Additionally, regarding the rehabilitation at the St. Cloud VAMC, the examiner did not address the extent to which carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA resulted in additional disability. As noted in the medical history section of the September 2020 VA examination, the Veteran has indicated that he continued to have issues with his left leg following discharge from the St. Cloud VAMC in January 2014. This matter is REMANDED for the following action: 1. Contact the appropriate sources to try to ascertain the identity of “REDACTED,” the servicemember with whom the Veteran cohabited at the St. Cloud VAMC between December 2013 and January 2014, while rehabilitating following the December 2013 surgery on his left leg. See 08/05/2020 Third Party Correspondence.   If the identity of the servicemember is ascertained, the AOJ should then take appropriate action to verify the Veteran’s assertion that he was placed near a patient being treated for an MRSA infection. More specifically, the AOJ should make reasonable efforts to obtain the relevant records, in conformity with VA General Counsel’s Precedential Opinion 05-2014. See Molitor v. Shulkin, 28 Vet. App. 397, 410 (2017). If the AOJ is unable to identify the servicemember or if any records sought are not obtained, it is to notify the Veteran and his representative of the negative result and explain efforts taken. Similarly, if the RO determines that it cannot attempt to obtain the identified servicemembers’ records, the RO must notify the Veteran why it will not undertake these efforts. 2. After completion of the above development, forward the record and a copy of this Remand to the examiner who provided the September 2020 medical opinion, or, if that examiner is unavailable, to another suitable qualified examiner, for completion of an addendum opinion. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner is to address the following: (a.) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s amputation of his left leg below the knee, subsequent treatment, and any residuals was/were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care, medical or surgical treatment, or examination? **The examiner is to address the Veteran’s assertions that (1) VA demonstrated carelessness, negligence, and lack of proper skill during the Veteran’s rehabilitation following the December 2013 surgery on his left leg and (2) that the VA surgeon failed to round off his shin bone during the 2014 surgery.** (b.) In responding, please discuss whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in diagnosing and treating the Veteran’s left leg. In this regard, the Veteran has suggested that he continued to experience issues with his left leg following discharge from rehabilitation following his December 2013 surgery on his left leg. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López 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.