Citation Nr: 21003361 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-38 758 DATE: January 21, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a March 2010 surgical procedure performed in a VA medical center (VAMC) is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran suffered a residual disability due to a March 2010 surgical procedure at a VA medical center that was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the treatment of the Veteran. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a residual disability stemming from a March 2010 surgical procedure performed in a VA medical center have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to June 1966. He died in November 2019. The Veteran’s surviving spouse has been substituted in this appeal by the Agency of Original Jurisdiction (AOJ). The Board last remanded the claims in June 2020. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). During his lifetime, the Veteran maintained that he contracted Methicillin-resistant Staphylococcus aureus (MRSA) and a secondary psychiatric disability as a result of surgery conducted at a VA medical center in March 2010. For the reasons that follow, the Veteran’s claim is denied. 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); see Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). Hospital care, medical or surgical treatment, or examination cannot cause the continuation 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). The proximate cause of disability is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when hospital care or medical or surgical treatment caused the veteran’s additional disability and VA either “failed to exercise the degree of care that would be expected of a reasonable health care provider” or furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361 (d)(2). The event does not have to be “completely unforeseeable or unimaginable” but it 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)(2); see Schertz v. Shinseki, 26 Vet. App. 362 (2013). A review of the Veteran’s VA treatment records reflects that in February 2010 he gave informed consent to undergo a surgical procedure – specifically, an abdominoperineal resection – the following month to treat his rectal cancer. The known risks of the treatment included, but were not limited to, infection of the incision or abdomen, injury to the spleen, bowel, bladder or ureter, injury to the nerves, the formation of an incisional hernia, possible significant blood loss requiring transfusion, pulmonary embolism and death. In September 2011, the Veteran underwent a VA examination. The examiner noted that the medical records showed the Veteran was diagnosed with rectal cancer for which he underwent an abdominoperineal resection of sigmoid colon and rectum in March 2010. A few days after the procedure, the Veteran developed abdominal pain and a fever. A CT scan revealed the presence of a presacral infected hematoma for which the Veteran underwent a percutaneous drainage on March 26, 2010 (with respect to the drainage, an informed consent form signed by the Veteran is also in his claims folder). Cultures of the drained secretion revealed the presence of MRSA. The Veteran was treated with intravenous antibiotics, and subsequent CT scans conducted in June 2010 and July 2011 showed no evidence of infection or abscess formation. The September 2011 VA examiner concluded following a review of the claims file and examination of the Veteran that there was no evidence of any residual disabilities, to include an active abscess formation or bacterial infections. The examiner noted that the consent form signed by the Veteran prior to his surgery clearly explained that an infection of the abdomen requiring further treatment or surgery was a known risk. The examiner noted that the Veteran did in fact develop an infected hematoma that was treated and resolved without residuals. The examiner concluded that there was no evidence of malpractice, carelessness, negligence, lack of proper skill, error in judgment, fault on the part of VA medical personnel, or evidence of any additional disability regarding the Veteran’s March 2010 surgery. The Board remanded the claim on appeal multiple times to obtain any outstanding VA treatment records, as well as an adequate VA examiner’s opinion addressing whether the Veteran had a psychiatric disability which was related to his past MRSA diagnosis. In a July 2020 VA addendum opinion, an examiner concluded following a review of the record that the Veteran’s psychiatric disorder – diagnosed as depressive disorder in VA treatment records – was not caused by either MRSA or any residuals of his past infection. The examiner noted that psychiatry and psychology records from 2018 reported that the Veteran was having difficulty adjusting to his poor vision and “feeling sad after having retired from work.” Medical records also showed that VA psychiatrists were consulted due to possible side effects from a medication the Veteran took for his neurocognitive disorder that may have caused some side effects. The July 2020 VA examiner concluded that the medical records in the Veteran’s claims folder did not report a relationship between any MRSA residuals and a depressive disorder. The July 2020 VA examiner further noted that VA records showed the Veteran was infected with MRSA of presacral abscess in March 2010 and received “appropriate medical care and treatment” for the infection. The VA opinions of record clearly reflect that VA exercised the degree of care that would be expected of a reasonable health care provider at the time of the Veteran’s March 2010 surgery. See 38 C.F.R. § 3.361 (d)(1)(i). Overall, the opinions were thorough, supported by an explanation and based on a review of the claims folder, to include the lay assertions made by the Veteran and the Appellant. The Board finds that the VA medical opinions are probative evidence against entitlement to compensation under 38 U.S.C. § 1151. The opinions are based on an accurate medical history and provide an explanation that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA opinions are competent medical evidence that the Veteran’s MRSA infection following his March 2010 surgery was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include failure to diagnose. 38 U.S.C. § 1151. The VA opinions are also competent medical evidence that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361 (d)(1). Finally, it is competent medical evidence that the VA medical treatment was conducted with the Veteran’s informed consent, as the examiners reviewed the specific consent form and concluded that he was informed of the risks. The Board has considered the Veteran’s and appellant’s statements that VA was negligent in providing care. Initially, the Board observes that the Veteran has never argued that VA treated him without informed consent. 38 C.F.R. § 3.361 (d)(1)(ii). Neither the Veteran nor the appellant are competent to provide an opinion as to whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault. In expressing an opinion as to cause and negligence, the Veteran was not reporting readily apparent symptoms, nor was he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the most probative evidence in this case are the September 2011 and July 2020 VA opinions which reflects that the VA acted with reasonable care and due diligence in treating the Veteran. While the Board has carefully reviewed /the record in depth, it has been unable to identify a basis upon which benefits under 38 U.S.C. § 1151 may be granted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal. See 38 U.S.C. § 5107. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, Counsel 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.