Citation Nr: 21068638 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 14-38 918A DATE: November 12, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right vestibular dysfunction (claimed as hearing problems and dizziness) as a residual of Methicillin Sensitive Staphylococcus Aureus (MSSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to July 1991. In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was remanded in September 2018, March 2020, and February 2021 in attempts to obtain an adequate VA medical opinion. In its most recent Board remand, in February 2021, the Board noted the issue in this case poses a medical problem with such obscurity or complexity that an advisory opinion from an independent medical expert is required. Unfortunately, for the reasons discussed below, the Board finds that the most recent opinion authored in May 2021, is also inadequate to address the issues before the Board. Given such, another remand is warranted. As this appeal is being remanded for an additional time, the Board finds that a review of the factual and medical history is warranted to clarify the issues in this case, in attempt to ensure an adequate medical opinion is obtained upon remand. Factual Background Here, the Veteran contends that on July 8, 2011, he was treated at a Durham VA Medical Center (VAMC),and received intravenous fluids (IV) in his left arm. On July 17, 2011, he returned to the VA hospital because his left arm was infected. He was diagnosed with a Methicillin Sensitive Staphylococcus Aures (MSSA) bacteremia infection, which he believes was caused by his previous IV. He was admitted and treated for the MSSA infection. In November 2011, he returned to the VA hospital for a reoccurrence of the MSSA infection. During this time, he was treated for ear trauma, which he believes was caused by the heavy antibiotics he was taking for his MSSA infection. See March 2012 Correspondence. The Veteran contends that his MSSA infections caused ototoxicity leading to vestibular dysfunction. See November 2014 Notice of Disagreement. Also, the Veteran contends that he cannot hear from his right ear. He notes that he started having problems with his ear since his July 2011 hospitalization. See May 2018 Correspondence. Here, the Veteran's medical records confirm that the was hospitalized on July 8, 2011 for nausea and vomiting. He was administered an IV through a line place in his left arm. On July 17, 2011, the Veteran reported to the emergency department with an infection of the IV site. The wound was cultured, and the infection was identified as MSSA. The Veteran was seen again for a reoccurrence of the infection in November 2011. The Veteran was treated with Vancomycin. In February 2012, the Veteran's infection was not detected and reportedly resolved. Dr. M.T.M from Duke University Medical center provided a medical opinion that was received in March 2012, in which he opined that the Veteran's MSSA infection and complications of that infection are more likely than not the direct result of peripheral IV catheter placed at Durham VAMC. He explained that MSSA infection is a risk of the IV catheter; and noted there is no evidence of negligence or improper care. Dr. M.T.M. noted that infections are a known, well-described, but uncommon, outcome from placement of peripheral IV catheters. He noted that there is no evidence that informed consent was obtained prior to the IV catheter. However, he explained that it is not common practice to obtain formal (written) informed consent prior to placement of a peripheral IV catheter. In an August 2012 VA examination report for hearing loss, the VA examiner diagnosed the Veteran with right ear hearing loss. The VA examiner noted that the Veteran reported an onset of right ear hearing loss in November 2011. The VA examiner opined that it is less likely that the antibiotics would selectively affect only one ear and leave the other ear entirely unchanged. The examiner noted that in general vancomycin or other such potentially ototoxic agents would be expected to affect hearing loss bilaterally. However, the examiner also noted that several texts indicate that asymmetric hearing loss is a possible outcome after Vancomycin use. The VA examiner also noted that Vancomycin is not been shown to be associated with vestibulotoxicity, which the Veteran has also been assessed with. The testing revealed a right vestibular lesion. In a January 2013 neurology consult note, the examiner opined that it is very likely that the Veteran developed ototoxicity from pharmacologic agents. The examiner noted that, while not treated with any aminoglycosides, the Veteran has been on a number of antibiotics and medications in general during his hospitalizations. In a January 2013 nursing education note, the examiner noted profound sensorineural right ear hearing loss, with tinnitus, and 100 percent vestibular weakness. The examiner noted that "[i]t is assumed that this is caused by an embolic event from SSA septicemia in 2011." In a January 2013 otolaryngology outpatient note, the examiner noted that the Veteran developed MSSA bacteremia following an IV injection in the left arm. The examiner noted that the Veteran was hospitalized and treated with multiple antibiotics, including Nafcillin, Bactrim, Cefazolin, and Vancomycin. Since this course, the Veteran reported his has daily disequilibrium, vertigo, headaches, severe photophobia, and vison disturbance. During the March 2018 Board hearing, the Veteran testified that his right vestibular dysfunction was caused by the antibiotic course he was prescribed to treat his reoccurring MSSA. The Veteran links his MSSA infections to his initial IV treatment at Durham VAMC in July 2011. In a May 2018 VA medical opinion, the examiner noted that he reviewed the Veteran's neurology records from January 2013, as well as other records. The examiner noted that the Veteran's testing revealed findings compatible with ototoxicity. The examiner noted that he determined that the Veteran has been exposed to multiple antibiotics, which include one or more "mycin" antibiotic to treat his severe infection(s). The examiner opined that the antibiotic[s] were most likely the cause of the Veteran's disabling ototoxicity. In May 2018 private medical records, the examiner noted that the Veteran presented for vestibular dysfunction and tinnitus. The examiner opined that upon review of extensive records, it would appear that the Veteran had MSSA septicemia and during hospitalization he more likely than not experienced an embolic event that resulted in unilateral vestibulopathy and complete hearing loss. As a result, the Veteran experiences symptomatic hearing loss and dizziness. In a March 2019 VA medical opinion, the VA examiner opined that it is at least as likely as not the Veteran's right vestibular dysfunction was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar fault of fault on the VA. The rationale appears to support a finding that the Veteran's unilateral hearing loss in the right ear may have been caused by his infection. As here, the VA examiner noted that in the Veteran's specific case, all potential etiologies have been ruled out except infection and treatment of an infection. The examiner goes on to state that given the Veteran's complex medical history, his unilateral hearing loss is more likely than not caused by the aggregate of his health conditions. However, the VA examiner then opined that it is less likely than not that VA failed to exercise the degree of care expected of a reasonable health care provider and it is less likely than not that the Veteran's right vestibular dysfunction, subsequent to the MSSA infection that was caused by the IV received in July 2011, was an event not reasonably foreseeable. Due to the contradicting proximate cause opinions within the March 2019 VA medical opinion, the Board requested a clarifying opinion. In the June 2020 addendum opinion, while the VA examiner opined that the Veteran's right vestibular dysfunction was less likely than not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the fault of VA, the VA examiner did not provide a rationale to this opinion. Consequently, in February 2021, the Board remanded again to obtain an adequate medical opinion. In a March 2021 VA medical opinion, the VA examiner opined that the Veteran's IV inserted into his left arm in July 2011 was the cause for his MSSA infection. Also, the VA examiner opined that it is less likely than not that the Veteran's right vestibular dysfunction, as a residual of MSSA, was caused by or became worse as a result of the VA treatment at issue. The examiner's rationale was that "[t]his is unlikely since it is only in one ear. Systemic therapy affects both ears." The VA examiner opined that the Veteran's additional disability is less likely than not a result of the attending VA personnel's failure to follow the appropriate standard of care. The rationale provided was that "[a]ppropriate standard of case was used." The VA examiner opined that it is less likely than that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease to continue to progress. The rationale provided was that "[a]ppropriate standard of case was used." INDEPENDENT MEDICAL OPINION WARRANTED The Board notes this matter has been remanded in September 2018, March 2020, and February 2021, in an attempt to obtain an adequate medical opinion. This matter has now come before the Board for a fourth time, and unfortunately, the most recent medical opinion is inadequate. It is important to clarify the issue in this case. The Board notes that the evidence appears to support that the Veteran's initial MSSA infection was due to the IV he received in July 2011. Furthermore, some evidence of record also appears to support a finding that the Veteran's right vestibular dysfunction was either caused by or partly caused by his MSSA infections and/or the antibiotics the Veteran took to treat his MSSA. These factors alone do not address whether the Veteran's right vestibular dysfunction was a result of VA's carelessness, negligence, lack of proper sill, error in judgment, or other similar instance of fault due to an IV received during July 8, 2011 and/or due to antibiotics used during his hospitalization from November 23, 2011 to December 1, 2011. In other words, the record evidence appears to focus solely on whether the Veteran's right vestibular dysfunction was actually caused by his IV treatment and/or his antibiotics used to treat his MSSA infections. However, the issue in his case is whether the Veteran's additional disability, right vestibular dysfunction, was proximately caused by the VA's carelessness, negligence, lack of proper skill. 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 or medical or surgical treatment caused the veteran's additional disability and 1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361 (d). The Board finds that the most recent 2021 VA medical opinion is also inadequate. Here, the VA examiner opined that it is less likely than not that the Veteran's right vestibular dysfunction was caused by or made worse as a result of VA treatment. The rationale was simply that systemic therapy affects both ears and, in this case, the Veteran only has one ear effected. However, it is unclear if the examiner reviewed the other medical opinions of record, which indicate that right vestibular dysfunction could be a result of the Veteran's antibiotic treatment. For example, as discussed above, in the August 2012 VA examination report, the VA examiner noted that several texts indicate that asymmetric hearing loss is a possible outcome after Vancomycin use. Furthermore, in a January 2013 neurology consult note, the examiner opined that it is very likely that the Veteran developed ototoxicity from pharmacologic agent. Also, in a January 2013 nursing education note, the examiner noted profound sensorineural right ear hearing loss, with tinnitus, and 100 percent vestibular weakness. The examiner noted that "[i]t is assumed that this is caused by an embolic event from SSA septicemia in 2011." In a May 2018 VA medical opinion, the examiner noted that he determined that the Veteran has been exposed to multiple antibiotics, which include one or more "mycin" antibiotic to treat his severe infection(s). The examiner opined that the antibiotic[s] were most likely the cause of the Veteran's disabling ototoxicity. In May 2018 private medical records, the examiner opined that upon review of extensive records, it would appear that the Veteran had MSSA septicemia and during hospitalization he more likely than not experienced an embolic event that resulted in unilateral vestibulopathy and complete hearing loss. The May 2021 examiner did not discuss any of this medical evidence, which appears to contradict the May 2021 VA medical opinion. The Board specifically remanded this appeal in February 2021 noting that his appeal poses a medical problem with such obscurity or complexity that an advisory opinion from an independent medical expert is required. The Board requested the examiner to discuss the previous medical evidence of record, to include the medical evidence which links the Veteran's right vestibular dysfunction to his IV treatment and/or to his antibiotic courses. That was not accomplished in the May 2021 VA medical opinion. The single sentence rationale noting that simply that systemic therapy affects both ears and, in this case, the Veteran only has one ear effected, does not in any meaningful way discuss the other evidence of this case, as requested by the Board. Furthermore, and significantly, again an adequate proximate cause opinion was not provided. When addressing this medical question, the VA examiner simply noted that "adequate standard of care was used." This is a single conclusory sentence that in no way provides a meaningful discussion of the appropriate standard of care necessary in this specific situation. In other words, the VA examiner must explain, as previously directed to in the Board's remand, how the standard of care was met in this case by applying the standard of care to the specific facts of this case. A general conclusory sentence, without discussion of the facts in this case, lacks probative value. As any opinion, to be adequate, it "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). GIVEN THE NUMBER OF TIMES THIS APPEAL HAS BEEN REMANDED, AND THE HARDSHIP IMPOSED ON THE VETERAN FOR HAVING TO UNDERGO ANOTHER VA EXAMINATION AND THE COMPLEXITY OF THE MATTER, THE BOARD FINDS THAT AN EXPERT MEDICAL OPINION IS WARRANTED. See 38 U.S.C. §§ 5109 (a), 7109(a). The matters are REMANDED for the following action: 1. OBTAIN A NEW MEDICAL OPINION FROM A QUALIFIED INDEPENDENT MEDICAL EXPERT (IME) WITH RESPECT TO THE VETERAN'S CLAIM FOR COMPENSATION UNDER 38 U.S.C. § 1151 FOR RIGHT VESTIBULAR DYSFUNCTION AS A RESIDUAL OF MSSA INFECTION. The examiner should be provided the instructions contained within this remand. All pertinent evidence of record must be made available to and reviewed by medical expert. Based on review of the evidence, the independent medical expert should offer medical opinions addressing the following: A) Whether the Veteran's diagnosed right vestibular dysfunction was at least as likely as not (50 percent or greater probability) a result of the VA's carelessness, negligence, lack of proper skill, error in judgment, or any other similar instance of fault due to an IV received during July 8, 2011, and/or due to antibiotics used in during his hospitalization from November 23, 2011, to December 1, 2011? a) If yes, why? b) If no, why not? In providing the above opinion, the medical expert should specifically address: a) Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider when providing the Veteran's IV during his July 8, 2011 hospital visit, as well as providing antibiotics during the Veteran's hospital stay from November 23, 2011 to December 1, 2011. Please discuss the degree of care that would be expected of a reasonable health care provider under the specific circumstances of this case. If the expert finds that the degree of care was satisfied, please discuss specific facts of this case which led to such a determination. b) Whether VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent at the Durham VA Medical Center in July 2011 and from November 21, 2011, to December1, 2011. c) The medical expert must discuss the following medical evidence a. A January 2013 neurology consult note, in which the examiner opined that it is very likely that the Veteran developed ototoxicity from pharmacologic agent. b. A January 2013 nursing education note, in which the examiner noted profound sensorineural right ear hearing loss, with tinnitus, and 100 percent vestibular weakness. The examiner noted that "[i]t is assumed that this is caused by an embolic event from SSA septicemia in 2011. c. A May 2018 VA medical opinion, in which the examiner noted that he determined that the Veteran has been exposed to multiple antibiotics, which include one or more "mycin" antibiotic to treat his severe infection(s). The examiner opined that the antibiotic[s] were most likely the cause of the Veteran's disabling ototoxicity. d. A May 2018 private medical records, in which the examiner opined that upon review of extensive records, it would appear that the Veteran had MSSA septicemia and during hospitalization he more likely than not experienced an embolic event that resulted in unilateral vestibulopathy and complete hearing loss. (B) Whether the right vestibular dysfunction the Veteran sustained, subsequent to the MSSA infection caused by an IV and the taking of antibiotics received at a Durham VA Medical Center in July 2011 and November 2011 to December 2011, were events not reasonably foreseeable? a. If yes, why? b. If no, why not? c. The independent medical expert MUST specifically address the Veteran's assertions that his IV inserted into his left arm during an emergency visit in early July 2011 and/or the prescribing of multiple antibiotics was the cause of his MSSA infection. In a January 2013 otolaryngology outpatient note, the examiner noted that the Veteran was hospitalized and treated with multiple antibiotics, including Nafcillin, Bactrim, Cefazolin, and Vancomycin. d. The medical expert should provide a detailed rationale for all opinions expressed, including by citing to the record and medical literature. The lack of medical literature is inadequate to support a negative opinion. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.