Citation Nr: 21010146 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-00 549 DATE: February 24, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA treatment resulting in hospitalization for neutropenia with resulting pneumonia in July 2013 is granted. FINDING OF FACT Affording the Veteran, the benefit of the doubt, the Veteran has additional disability as a result of his VA treatment resulting in hospitalization for neutropenia with resulting pneumonia in July 2013 due to VA fault. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA treatment resulting in hospitalization for neutropenia with resulting pneumonia in July 2013 have been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1994 to October 2000. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA treatment resulting in hospitalization for neutropenia with resulting pneumonia in July 2013. Compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if that additional disability or death were service-connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). To obtain compensation, a claimant must show: (1) a qualifying additional disability, (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran’s informed consent. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1). The Veteran underwent back surgery at VA on May 17, 2013. He contends that the back surgery resulted in an accidental cut into the dura/thecal sac, causing cerebral spinal fluid leakage. After additional surgeries on May 24, 2013, and on May 27, 2013, the cut was repaired. However, post-operatively the Veteran developed an infection that required antibiotic treatment at home. During this treatment, the Veteran was hospitalized for neutropenia with resulting pneumonia, and underwent intubation for this and treatment for other complications such as kidney failure, gastrointestinal bleeding and heart strain. The Veteran contends that as a result of this 2013 infection, he has additional disability to, include lung scarring with decreased pulmonary function, chronic congestion/illness, low sex drive, heart strain, sleep apnea, and allergies. The Veteran’s attorney has argued that the VA breached its duty of care when it negligently failed to recognize and act upon the Veteran’s declining white blood count following his release from the hospital. Regarding the first two elements of the Veteran’s claim, that of additional disability and causation by VA treatment, an October 2019 VA addendum opinion states that the Veteran’s hospitalization for neutropenia with resulting complications such as respiratory failure, kidney failure, gastrointestinal bleeding, heart strain and additional disability, to include lung scarring with decreased pulmonary function, chronic congestion/illness, low sex drive, heart strain, sleep apnea, and allergies, was caused by treatment furnished by VAMC San Francisco. This statement by the VA examiner satisfies both the additional disability and causation elements of the Veteran’s claim. Thus, the remaining issue is whether the additional disability was proximately or directly caused by either a fault on the part of VA or an event not reasonably foreseeable. In other words, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran’s informed consent. The evidence shows that the Veteran’s blood was drawn regularly by VA while he was treating on antibiotics at home. Over time, his white blood cell (WBC) count began to decrease. By July 3, 2013, a blood draw showed that the antibiotics had caused his WBC count (3,900) to drop below the acceptable limit (4,800). VA did not take any action or note it at this time. A July 8, 2013, blood draw came back on July 9, 2013, and showed the WBC count had dropped further to 2,100. A VA nurse practitioner on that date noted the WBC count was very low. She requested a redraw, for results to be faxed to VA ASAP, and requested the patient see his primary care provider ASAP. It appears that the attending VA physician did not get the note until July 16, 2013, one week later. On that day, the VA physician called the Veteran and left him a voicemail to come to the hospital on that date. The VA physician also emailed the Veteran. The following day, July 17, 2013, the Veteran emailed back and reported having chills, sweats and severe fatigue and could not make it to the San Francisco VA hospital because he was out of town. The San Francisco VA called the police where the Veteran was and had them do a wellness check. He was taken by ambulance to a local hospital and was hospitalized for neutropenia with resulting pneumonia and further complications. A VA examiner rendered opinions in this case in September 2017 and in October 2019. Although he acknowledged that the Veteran experienced additional disability due to VA treatment, he opined that VA followed the appropriate standard of care. His rationale was based upon the VA treatment from July 16, 2013, when the VA physician became aware of the Veteran’s low WBC count and acted by calling and emailing the Veteran, and even sending authorities to do a wellness check. The Board does not disagree with the examiner in finding that a VA physician acted prudently from July 16, 2013. However, as the Veteran’s representative has pointed out in a compelling argument, VA first had knowledge of the Veteran’s declining WBC count prior to that time. The WBC count declined steadily for weeks until it reached a level below the acceptable limit on July 3, 2013. Given how rapidly the Veteran’s health declined from this point, clearly this was an indicator that urgent action should have been taken, but the Veteran’s low WBC count was not communicated to the Veteran’s physician until nearly two weeks later. No VA examiner has opined that it was appropriate to delay notifying a physician for 13 days once the WBC count entered an alarming range. Accordingly, after resolving reasonable doubt in the Veteran’s favor, the Board finds that compensation under 38 U.S.C. § 1151 for additional disability due to VA treatment in July 2013 is warranted. Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.