Citation Nr: 21008156 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 12-05 221 DATE: February 11, 2021 ORDER Entitlement to compensation benefits under 38 U.S.C. § 1151 for staph infection residuals as a result of Department of Veterans Affairs (VA) medical treatment, including heart surgery in January 1996, is denied. FINDING OF FACT Evidence of record does not establish that any additional disability, including staph infection residuals, related to VA heart surgery in January 1996 was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing reasonable care; or, that the additional disability was due to an event not reasonably foreseeable in furnishing the Veteran’s VA surgical treatment. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for staph infection residuals as a result of VA medical treatment, including heart surgery in January 1996, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to April 1970 and from November 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2011 rating decision. In June 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2014 and August 2014, the Board remanded this matter for additional development. The Board subsequently denied the Veteran’s claim in a December 2014 decision. In January 2016, the parties filed a Joint Motion for Remand (Joint Motion), which was granted by Order of the United States Court of Appeals for Veterans Claims (Court) that same month. In March 2016, the Board remanded this matter for additional development. In September 2016, the Board subsequently denied the Veteran’s claim. In May 2017, the parties filed another Joint Motion, which was granted by Order of the Court that same month. In August 2017, November 2018, and July 2020, the Board remanded this matter for additional development. Entitlement to compensation benefits under 38 U.S.C. § 1151 for staph infection residuals as a result of VA medical treatment, including heart surgery in January 1996 The Veteran has asserted that he suffers from an additional disability, staph infection residuals, as a result of VA surgical treatment in January 1996. Under VA laws and regulations, when a veteran suffers additional disability as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability was service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.358, 3.361 (2020). For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. As the Veteran filed his claim after that date (in October 2010), he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1) (2012); 38 C.F.R. § 3.361 (2020). In determining that additional disability exists, 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 program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b) (2020). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination and that that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2020). Hospital care, medical or surgical treatment, or examination cannot cause the continuance 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) (2020). Additional disability caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3) (2020). 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 VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1) (2020). The second prong of proximate causation requires that the veteran’s additional disability be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2020). The record reflects that on January 22, 1996, the Veteran underwent a coronary artery bypass graft of three arteries at a VA facility. He was discharged on January 28, 1996. However, by the end of the month, the Veteran returned to the hospital for ongoing chest pain. Further examination and observation led to the assessment of staph aureus infection at the surgical site and he was treated with antibiotics. VA treatment notes from February 1996 documented the Veteran’s surgical debridement due to development of a staph infection at the incision site of his January 1996 coronary artery bypass graft. In May 1996, he had a recurrence of infection which was again treated with antibiotics. Due to continuing infection, a catheter was placed at the surgical site under the sternum in July 1996. He was treated with antibiotics for four weeks and was then prescribed a different antibiotic to take orally for five months. In August 1997, he was noted to be doing well. In June 1996, private treatment notes from Lakeview Medical Center detailed findings that the Veteran’s wound infection was improving on Dicloxacillin and with open packing. In October 1996, private treatment records from Indianhead Center noted that Veteran was on long-term antibiotics secondary to staph mediastinitis and mediastinal abscess following open heart surgery. In October 2004, private treatment notes from Sioux Valley Hospital listed an assessment of methicillin-resistant Staphylococcus aureus (MRSA) colonization. In a January 2011 statement, the Veteran reported that he periodically suffered from weeping sores on his body. In a March 2011 VA examination report, the Veteran indicated he had not taken antibiotics to treat a staph infection since 1997. A review of the records dated since 1997 showed that the Veteran had been treated for cellulitis in 2002 as well as undergone a cardiac catherization. At that time, it was noted that he had had previous infections and skin rashes. The examiner acknowledged the October 2004 private treatment record which listed a previous history of a MRSA infection but concluded that the notation was incorrect. The examiner detailed that the Veteran had eczema, which was not a staph infection. The examiner then opined that the VA hospital treatment surrounding the Veteran’s heart surgery and subsequent staph infection was not careless or negligent in any way. Rather, his care was managed in an expedient and professional manner. It was indicated that the notes accompanying the surgery showed meticulous care. Once the infection of the sternal wound was found, the Veteran was treated appropriately with surgical debridement, drainage tubes, and proper antibiotics. There were notes in the record showing that the Veteran had been noncompliant with filling his prescriptions and that such had contributed to his symptoms. The examiner explained that infection was a complication of any procedure and that the Veteran would certainly have known that there are risks to surgery when he signed the informed consent. The examiner then concluded that there was no indication of any recurrent skin infection or staph infection beyond September 1996 and that there was no current staph infection. Additional VA treatment records dated in 2012 revealed that the Veteran continued to complain of skin infections. A February 2012 VAMC telephone note reflected the Veteran’s concern that his lower leg lesion had become increasingly erythematous, weepy, and uncomfortable. A February 2012 VA treatment record indicated that the Veteran had been experiencing crusty, oozing bilateral lower arm lesions for approximately one year. On examination, he had a lesion on his right arm measuring one centimeter that was oozing. A March 2012 VAMC telephone note showed complaints of increased pain, red rash, and blisters with a small amount of colored drainage in his left lower leg. In an April 2012 VA infectious disease note, the treatment provider concluded that the Veteran had experienced oozing and crusting of the pre-tibial area in 2008. In a May 2012 letter from a private provider, the Infectious Disease Specialists, the Veteran was noted to have colonization with staphylococcus aureus of his calf with recurrent episodes of cellulitis of the left calf that was treated frequently with antibiotics but currently showed no signs or symptoms suggestive of an active infectious process. Additional VA treatment notes dated in 2012 documented the Veteran’s prior severe staph infection of chest wound and left leg infection after coronary artery bypass graft, treated with prolonged antibiotics, and current chronic staph cellulitis of left leg with recent Minocycline prescription. In a March 2014 VA examination report, the Veteran stated that since his 1996 surgery, he had had times when his skin would bubble up and form a blister and would be given medications such as Bactrim or Levaquin. He further described his outbreaks as areas of weeping and reported that his biggest fear was that staph was active in his body. He did not have any current sores or any other ongoing constitutional symptoms. Physical examination revealed a scar on the mid-sternal chest that was stable and well-healed with some venous stasis on the left leg but no changes that would evidence active infection. There were some areas on the right forearm of prior scarring that were small circular areas of undetermined etiology. The examiner found there were no current skin infections present. Following extensive review of the record, the examiner found no current clinical evidence of an active staph infection since October 2010. The examiner noted that the Veteran was placed on an antibiotic empirically following lumbar spine surgery in August 2010. Although he did suffer from an infection following back surgery, the culture was negative for staph infection. It was further indicated that VA treatment records in 2011 and 2012 showed treatment for folliculitis, a negative MRSA culture, and cellulitis with a recent insect bite. A past medical history of chronic staph infection was listed, but such infection was not clinically present on examination at that time. He was treated with antibiotics in July 2011 for cellulitis, but no staph infection was found. The Veteran was placed on an antibiotic for chronic cellulitis. In May 2012, the Veteran was noted to have ongoing chronic cellulitis with no infection found. In October 2012, the Veteran was treated with an antibiotic prior to undergoing surgery. In November 2012, an area under the incision point either resulted in a severe allergic reaction or cellulitis and antibiotics were administered with a January 2013 note showing no skin infection. In August 2014, the Board remanded the claim in order for a VA examiner to discuss specific evidence in the record suggesting an ongoing staph infection, to include a June 2012 note documenting a severe staph infection of chest wound, mediastinitis and left leg infection after coronary artery bypass graft, treated with prolonged antibiotics and current chronic staph cellulitis of the left leg as well as a June and December 2011 records noting “chronic staph infection-active”. In September 2014, a VA examiner reviewed the specific evidence discussed above in the August 2014 Remand, as well as the remaining evidence of record and concluded that the Veteran had not had a staph infection at any time during the pendency of the appeal. The examiner explained that even though the Veteran had been placed on various antibiotics, such was done prophylactically to prevent potential problems. It was noted that staph usually manifested itself with purulent drainage and formation of abscesses and that there was no evidence of such in the records. Moreover, the Veteran had had two nasal swabs for MRSA infection, which had been negative and had a normal blood culture. Additionally, there was no other diagnosis or ongoing disability as a result of the post-operative wound infection following his 1996 heart surgery. In a December 2014 decision, the Board denied the claim. In the January 2016 Joint Motion, the parties noted that while the September 2014 VA opinion relied on by the Board concluded that the Veteran had not had a staph infection since the date of his application for VA benefits, it also explained that staph usually manifests itself with purulent drainage and the formation of abscesses. The parties found the examiner’s conclusion the Veteran did not have a staph infection to be inconsistent with his explanation of how staph infection manifests, because there was evidence of record reflecting complaints from the Veteran of having weeping sores and oozing and crusting lesions on his body. In a May 2016 VA infectious diseases examination report, the VA examiner opined that the Veteran did not have a staph infection, or the residuals thereof, since the filing of his claim in October 2010. In doing so, the examiner noted that the Veteran’s 1996 sternotomy infection was treated and resolved without residuals. The examiner concluded that the Veteran did not have any confirmed infections due to staph since the filing of his claim in October 2010. Further, the examiner highlighted that the Veteran had had at least two other diagnosed skin conditions, nummular eczema and herpes zoster, which were noted to be unrelated to staph infections and could cause the symptoms identified by the Veteran, to include weeping and crusting lesions of the skin. However, the examiner also noted multiple findings of chronic cellulitis in the record from 2012, detailing that skin infections caused by staph bacteria included cellulitis. In a September 2016 decision, the Board denied the claim. In the May 2017 Joint Motion, the parties noted that the May 2016 VA examiner did not opine on whether the Veteran’s chronic cellulitis could be a residual of the post-operative staph infection. It was further indicated that the Board did not discuss whether this had rendered the May 2016 VA opinion inadequate and that the Board’s September 2016 decision was absent any discussion of a relationship between the post-operative staph infection and cellulitis noted in the record. On remand, the Board was instructed to reconcile the examiner’s statement with the medical evidence of record and to obtain a new opinion if necessary. The parties also agreed that the Board should provide an adequate statement of reasons or bases as to the adequacy of Veteran’s informed consent for the January 1996 VA heart surgery. In August 2017, the Board remanded this matter to obtain any informed consent documents from the Veteran’s heart surgery in January 1996 at Minneapolis VAMC as well as to obtain an addendum VA medical opinion to adequately address whether the Veteran’s chronic cellulitis was a residual of the post-operative sternal wound infection; whether informed consent was given by the Veteran for heart surgery in January 1996 at Minneapolis VAMC; and whether the post-operative sternal wound infection was due to an event not reasonably foreseeable. Informed consent documents from the Veteran’s heart surgery in January 1996 at Minneapolis VAMC were associated with the record and clearly noted that risks of the procedure (including bleeding, infection, and death) were explained to the Veteran. A May 2017 letter from a private physician indicated that the Veteran had been seen in his clinic for some time and had been treated on numerous occasions for staph and strep infections of his lower extremities. In a September 2018 statement, the same physician noted that the Veteran had indicated that there was an open area in the VA hospital that allowed bugs and gnats into patient care areas. He then indicated that he was concerned about any possibility for vector-borne illnesses and/or bug bites allowing for various bacteria (staph and strep) to enter the skin. In a November 2017 medical opinion, the VA examiner highlighted that evidence of record reviewed clearly indicated that the 1996 staph infection was successfully treated and resolved with antibiotics. The examiner explained that any staph infection that developed years later could not be assumed, with at least as likely as not certainty, to be the same bacteria (residual infection) as from the original infection. It was further indicated that the Veteran’s recent findings of cellulitis, if indeed caused by staph, represented new, separate and distinct infections. However, the November 2017 VA examiner provided an internally inconsistent medical opinion that lacked sufficient rationale as to whether the Veteran’s post-operative sternal wound infection was due to an event not reasonably foreseeable. The examiner indicated that risk of infection, such as the sternal wound/staph infection, was a reasonably foreseeable complication and noted that “infection” was discussed in the informed consent given before VA treatment in January 1996. The examiner noted that the possibility of an infection as a complication of a procedure was foreseeable and was the reason infection control practices were standard-of-care. Nevertheless, the examiner then indicated that the specific “event” that evaded normal infection control practices and resulted in infection in 1996 in this Veteran’s specific case was not “foreseeable” without providing any rationale concerning those inconsistent statements. In November 2018, the Board remanded this matter, requesting that the same VA examiner provide a clear opinion with cited rationale as to whether any additional disability, to include the post-operative sternal wound infection, as a result of the January 1996 VA surgical treatment was due to an event not reasonably foreseeable. Instead, in a November 2019 VA medical opinion, the same examiner was asked whether the Veteran’s staph infection residuals were at least as likely as not proximately due to or the result of staph infection residuals. He simply indicated that the rationale remained the same, as previously discussed in the November 2017 VA medical opinion. It was noted that there was no pertinent information in the new/additional records and that the new/additional records of a recent leg injury that became infected in 2019 did not change anything regarding the remote history of staph infection that was resolved/cleared by antibiotics. Additional private treatment records dated in 2019 detailed that the Veteran was receiving treatment for multiple chronic medical problems, including cellulitis of the right leg. Cultures in March 2019 revealed a coagulase negative Staphylococcus species. A past medical history of Methicillin susceptible Staphylococcus aureus infection was noted, with confirmation of no history of MRSA per VA hospitals. Additional VA treatment records dated in 2019 and 2020 showed a past medical history of chronic staph infection and current treatment for right leg cellulitis. In July 2020, the Board remanded this matter to obtain an adequate addendum VA medical opinion concerning whether the post-operative sternal wound infection was due to an event not reasonably foreseeable. In an October 2020 VA medical opinion, the examiner opined that the Veteran’s staph infection was not caused by or became worse as a result of the VA treatment, was not an additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, and was not an additional disability that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or from failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowing the disease or disability to continue to progress. In the cited rationale, the examiner highlighted that in 1996, staph infections were just rising and significant and not always preventable infections in cardiac, orthopedics and other surgery (especially the high-risk intensive care unit admissions, e.g. cardiac surgery). The examiner further noted that as of admission in June 1996, there were notations of diabetes and other comorbid diagnoses for the Veteran. It was indicated that MRSA was one of the few pathogens routinely implicated in nearly every type of hospital-acquired infection. This was noted to probably be related in part to the organism’s capacity for biofilm formation on invasive, foreign devices such as endotracheal tubes and urinary and endovascular catheters. Biofilm was noted to facilitate MRSA survival and multiplication on those surfaces, prolonging the duration of organism exposure to antibiotics as well as promoting the potential opportunity for transfer of antibiotic resistance genes between organisms. Risk factors for HA-MRSA infections included antibiotic use, prolonged hospitalization, intensive care, hemodialysis, MRSA colonization, and proximity to others with MRSA colonization or infection. Upon consideration of all of the evidence of record, the Board has determined that entitlement to compensation benefits under 38 U.S.C. § 1151 for staph infection residuals as a result of VA medical treatment, including heart surgery in January 1996, is not warranted. As an initial matter, the Board is cognizant that evidence of record contains numerous medical opinions, some found to be incomplete or inadequate in certain aspects. However, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight. If the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Board has already identified the portions of the VA medical opinions and examinations found to be incomplete or inadequate in the detailed discussion of the evidence of record above and has not relied on those findings or given them any probative value in this determination. Here, evidence of record shows that the Veteran had an additional disability, a staph infection of the surgical wound, caused by his January 1996 VA surgical procedure. The May 2016 and November 2017 VA examiners explained that the staph infection was properly recognized after the January 1996 surgical procedure, treated appropriately with antibiotics, and resolved with treatment before the appeal period began in October 2010. The Board is cognizant that there were other skin findings during the appeal period, including chronic cellulitis, eczema, and herpes zoster. The May 2016 VA examiner highlighted that the Veteran had nummular eczema and herpes zoster, which were unrelated to staph infections and could cause the symptoms identified by the Veteran, to include weeping and crusting lesions of the skin. In addition, the November 2017 VA examiner explained that any staph infection that developed years later could not be assumed, with at least as likely as not certainty, to be the same bacteria (residual infection) as from the original post-surgical staph infection. It was further indicated that the Veteran’s recent findings of cellulitis, if indeed caused by staph, represented new, separate and distinct infections. Even so, the Board finds that the evidence of record does not establish that any additional disability, to include staph infection residuals, was proximately caused by the January 1996 VA heart surgery. Evidence of record does not establish that any additional disability, to include staph infection residuals, was proximately due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care; or, that any additional disability was the result of an event not reasonably foreseen. The Board considers the findings contained in the October 2020 VA medical opinion to be of great probative value in this appeal regarding proximate cause. The VA physician provided a complete rationale for the stated opinions based on an extensive and detailed review of the evidence of record. Thereafter, the examiner explained their opinion regarding proximate cause of the Veteran’s claimed additional disability, supporting those opinions by utilizing medical knowledge, citing to medical treatise evidence concerning staph infections and MRSA, and with consideration of the lay assertions of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and there is sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, statements from the Veteran’s private physician dated in May 2017 and September 2018 are considered to lack probative value, due to their general nature and lack of proffered rationale. As such, the Board accords little probative weight to the private medical statements of record. Finally, the Board will discuss the adequacy of Veteran’s informed consent for the January 1996 heart surgery. In a March 2011 VA examination report, a VA examiner did note that infection was a complication of any procedure and that the Veteran should certainly have known that there were risks to surgery when he signed the informed consent. However, during the Veteran’s June 2013 hearing testimony, the Veteran seemed to assert that he was not informed that a staph infection could be a complication of his January 1996 VA heart surgery and that he did not possess full awareness to provide informed consent for that procedure. Despite the Veteran’s assertions, informed consent documents from the Veteran’s heart surgery in January 1996 at Minneapolis VAMC clearly noted that risks of the procedure included bleeding, infection, and death were discussed with the Veteran and that he agreed to having the procedure, providing his signature on a consent form outlining the above discussion. Thus, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether any additional disability was proximately caused by VA surgical treatment in January 1996 weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The only evidence to directly support the Veteran’s claim are his lay statements that he suffered staph infection residuals as a result of his VA surgical treatment in January 1996. The Veteran is capable of observing symptoms related to his claimed additional disability of staph infection residuals. Nevertheless, his statements and hearing testimony are not competent evidence sufficient to establish that he experiences staph infection residuals related to his VA surgical treatment as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that staph infection residuals were due to an event not reasonably foreseeable in furnishing the Veteran’s VA surgical treatment. Although lay persons are competent to provide opinions on some medical issues, the proximate cause of any additional disability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to compensation under 38 U.S.C. § 1151 for staph infection residuals, as a result of VA surgical treatment in January 1996, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.