Citation Nr: 21006269 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-38 918A DATE: February 3, 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) infection is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1987 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a March 2018 Board hearing. A transcript of the hearing is of record. By way of procedural history, this matter has come before the Board in September 2018 and March 2020. In the September 2018 prior Board decision, the Board remanded this matter to obtain a medical opinion. Then, in March 2020, the Board again remanded this matter for a clarification opinion. This matter has now come back before the Board for adjudication. 1. Right Vestibular Dysfunction The issue under consideration poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. VA failed to fulfill its duty to assist the Veteran by obtaining an adequate medical opinion. In the March 2020 Board Remand, the Board specifically directed, in part, that an opinion should be obtained on whether the right vestibular dysfunction the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part, and whether the right vestibular dysfunction the Veteran sustained, subsequent to the MSSA infection caused by an IV that he received at a Durham VA Medical Center in July 2011, was an event not reasonably foreseeable. See March 2020 Board Decision. Furthermore, the Board specifically requested the examiner to address whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider and whether VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. However, neither of these directives were adequately accomplished. See June 2020 VA BVA Medical Opinion Disability Benefits Questionnaire (DBQ). Specifically, the June 2020 VA examiner opined that it was less likely than not that the Veteran’s right vestibular dysfunction was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part; it was less likely than not that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider; and it is less likely than not that the VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent. However, in the rationale, the examiner explained that the known causes of hearing loss include infection and treatment of infection. The examiner noted this includes the Veteran’s MSSA. The examiner noted that a majority of patients who experience hearing loss due to infection or treatment of an infection will recover, but there is a small number of patients that continue to have unilateral hearing impairment. The examiner continued to state that the Veteran’s history of MSSA could have resulted in the Veteran’s right ear hearing loss which developed after repeated MSSA infections. These findings in the rationale establish that the Veteran’s condition could be caused by MSSA but the examiner failed to address whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part. Also, the examiner failed to support the opinion regarding whether the VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or whether the VA furnished the hospital care or medical or surgical care treatment without consent. See June 2020 VA BVA Medical Opinion Disability Benefits Questionnaire (DBQ). Lastly, the examiner found that the Veteran’s vestibular dysfunction was reasonably foreseeable as he had MSSA infection prior to the IV received at Durham VA Medical Center. See id. The Board notes that the Veteran was first admitted to Durham VA Medical Center on July 8, 2011 for hyperglycemia and an IV was administered. At discharge, the IV was removed and the area was noted to be clear. See July 2011 VA Nursing Emergency Department Discharge Note. The Veteran was then readmitted on July 17, 2011 with a fever and pain in his arms and legs. It was noted that the Veteran had lost weight since his prior admission and his arm was infected at the IV site from the prior hospitalization that month. See July 2011 Nursing Emergency Department Note. The first hospitalization had no indication or notation of the Veteran having MSSA and the examiner failed to support his findings in his rationale. Since the examiner failed to cite to the evidence that he relied upon to arrive at his conclusion, the Board finds this opinion inadequate to address the Veteran’s claim. The Board notes the Veteran’s private medical records opine that the Veteran’s vestibular dysfunction was a result of his IV catheter from July 2011. See March 2012 Duke University Medical Center. The Board finds that, unfortunately, this opinion also did not provide an opinion or rationale on whether the VA failed to exercise the degree of care that would be expected of a reasonable health care provider or whether the VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361 (d). It too, is inadequate. Another VA opinion from the Veteran’s treating physician was provided which opined that the Veteran’s vestibular dysfunction was a result of antibiotic(s) administered for treatment of his MSSA which caused his disability ototoxicity. See May 2018 VA Dr. M.P.S. Medical Opinion. Again, the Board notes this opinion does not provide a rationale to support the opinion. This includes any rationale on whether the VA failed to exercise the degree of care that would be expected of a reasonable health care provider or the 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 notes that the Veteran has undergone four VA examinations in May 2010, August 2012, March 2019, and June 2020. The March 2019 and June 2020 were obtained at the request of the Board on remand. This matter has come before the Board for a third time and the VA medical opinion is still inadequate. Given the number of times this issue 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. Prior to submitting claim for IME, request and obtain complete copies of consent forms provided to the Veteran July 2011 at the Durham Emergency Room, as well as at his admission to the Durham Medical Center from November 2011 to December 2011 for procedures performed. 2. 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 the independent 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? i. If yes, why? ii. If no, why not? • In providing the above opinion, the independent medical expert should specifically address: i. 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. ii. 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. iii. the July 2011 and May 2018 medical opinions. (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? i. If yes, why? ii. 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. The independent 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. 3. 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 J. Glaeser, Associate 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.