Citation Nr: 21012540 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-15 794A DATE: March 4, 2021 ORDER The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee condition, including arthritis, has been withdrawn. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression with suicidal tendencies has been withdrawn. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for drug addiction/dependency has been withdrawn. The issue of entitlement to service connection for hepatitis C has been withdrawn. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for methicillin resistant Staphylococcus aureus (MRSA) infection is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a neck disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a low back disability is remanded. FINDING OF FACT In December 2020, prior to the promulgation of a decision with respect to this appeal, the Veteran withdrew the appeal with respect to the issues of entitlement to service connection for hepatitis C and the issues of whether new and material evidence has been submitted to reopen the claim of service connection for a right knee condition including arthritis, depression with suicidal tendencies, and drug addiction/dependency. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee condition, including arthritis, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205 (2020). 2. The criteria for withdrawal of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression with suicidal tendencies by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205 (2020). 3. The criteria for withdrawal of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for drug addiction/dependency by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205 (2020). 4. The criteria for withdrawal of the issue of entitlement to service connection for hepatitis C by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2020, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. Withdrawn Appeals 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disability 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression with suicidal tendencies 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for drug addiction/dependency 4. Entitlement to service connection for hepatitis C The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. During the December 2020 Board hearing, the Veteran testified that he wished to withdraw the service connection claims listed in the statement of the case (SOC). The March 2016 SOC reflects that, in addition to the 1151 claims on appeal, the agency of original jurisdiction (AOJ) addressed the issues of service connection for hepatitis C, a right knee condition, including arthritis, depression with suicidal tendencies, and drug addiction/dependency. In this regard, while the SOC characterized the right knee, depression, and drug addiction claims as ones for service connection, these claims were adjudicated in earlier rating decisions. See e.g., rating decisions dated August 1996, December 1996, August 1999, and November 1999. As the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the previously denied claims, the Board has characterized the right knee, depression, and drug addiction claims as petitions that require new and material evidence to reopen. Nevertheless, there remain no allegations of errors of fact or law for appellate consideration as to the issues on appeal involving hepatitis C, the right knee condition, depression, or drug addiction. Withdrawal at a Board hearing must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). During the December 2020 Board hearing and during the pre-hearing conference, the Veteran, his representative, and the undersigned discussed the issues that had been certified to the Board and the Veteran indicated his desire to withdraw the service connection claims listed in the SOC. During the hearing, the undersigned identified the service connection claims in general, and the Veteran affirmed that he was requesting a withdrawal as to the service connection claims at issue and that he understood that his appeal for those issues would be terminated. Based upon the hearing testimony, the Board finds the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew those claims. See Acree, 891 F.3d at 1009. Accordingly, those issues are dismissed. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for methicillin resistant Staphylococcus aureus (MRSA) infection is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a neck disability is remanded. 3. Entitlement to compensation under 38 U.S.C. § 1151 for a low back disability is remanded. The Veteran is seeking entitlement to compensation for an MRSA infection and disabilities involving the neck and low back under the provisions of 38 U.S.C. § 1151. He attributes the MRSA and neck and low back disabilities to a surgical procedure performed by VA in April 2007. During the Board hearing, he testified that the MRSA infection was a result of improper sterilization procedures and that he now has residual stiffness, pain, and reduced range of motion in his neck and low back, as well as a cyst on his upper back. At the outset, the Board notes that the evidence reflects that the surgical procedure at issue in this case was performed at the University of Maryland Medical System (UMMS) on April 3, 2007. However, the evidence also reflects that the Veteran initially presented at the VA Medical Center (VAMC) in Washington, DC, on April 2, 2007, with complaints of mid-thoracic back pain that progressed to bilateral lower extremity paralysis. After being diagnosed with an epidural hematoma with cord compression, he was transferred to the Baltimore, Maryland VAMC for urgent neurosurgical evaluation where it was determined that he needed surgery; however, because the Baltimore VAMC did not have the capability for emergent cases that night, VA contacted the operating room at UMMC to perform a cervical-thoracic laminectomy and epidural hematoma evacuation. See April 2007 VA treatment records. The Veteran was transferred to UMMC on April 3, 2007 where the laminectomy and epidural hematoma evacuation was performed, after which he was immediately transported back to the Baltimore VAMC for postoperative care. See April 2007 VA treatment records. The evidence reflects that, following the laminectomy, the Veteran complained of pain at the incision site and was noted to have sanguineous drainage and bleeding from the site, which required wound exploration, debridement, and closure at the Baltimore VAMC on April 20, 2007. The evidence shows that, despite the foregoing, the Veteran continued to experience neck and back pain and a recurring cyst/granuloma on the back of his neck. See e.g., VA treatment records dated May and July 2007 and March 2010; see also VA treatment records dated April, June, and October 2008 and April 2009. The evidence also suggests that he experienced a recurring MRSA infection despite extended antibiotic treatment. See e.g., VA treatment records dated June and June 2007. In June 2013, VA obtained a medical opinion regarding the 1151 claim; however, the Board finds the opinion is inadequate for the following reasons. First, the opinion did not address the claimed additional disability involving the low back and, while the examiner noted the Veteran’s chronic neck pain and a diagnosis of degenerative disc disease, she did not properly address whether an additional neck disability was caused by the laminectomy and, if so, if the disability was an event not reasonably foreseeable or due to fault. Similarly, while the examiner seems to suggest that an infection is reasonably foreseeable after extensive surgery, she also stated that there was no residual impairment or recurrent infection attributable to the MRSA infection, which is appears inaccurate. As noted, the evidence shows the Veteran experienced a recurring MRSA infection and cyst at the surgical incision site. The examiner also stated that it could not be proven that the Veteran developed MRSA as a result of the surgery and suggested there was no fault or negligence on the part of VA because VA personnel tested the Veteran for an infection following the surgery. However, the evidence does not have to “prove” causation. Instead, the relevant questions are whether it is as likely as not that (1) the infection was caused by the surgery or VA treatment and (2) there was fault, negligence, or lack of proper skill in performance of the surgery or, in the alternative, that the infection was reasonably foreseeable. The Board also finds that the evidence raises questions as to whether the recurring cyst at the surgical site was caused by the April 2007 laminectomy or subsequent wound treatment performed by VA and, if so, whether the recurring cyst is due to fault or negligence or, in the alternative, was reasonably foreseeable. The June 2013 medical opinion does not address these issues. Given the foregoing deficiencies, the Board finds a remand is needed to obtain a new medical opinion. These matters are REMANDED for the following action: 1. Arrange to have an appropriate physician review the claims file, including all relevant medical and lay evidence of record, and provide opinions that address the following: (a) Did the Veteran have an additional disability after the surgical treatment he received at the University of Maryland on April 3, 2007? If so, identify the additional disabilities. Note: the Veteran has alleged that he expereinced an MRSA infection and residual neck and low back pain following the laminectomy. (b) Did the Veteran have an additional disability after the medical treatment/wound care he received on April 20, 2007 at the Baltimore VAMC? If so, identify the additional disabilities. Note: the evidence shows the Veteran experienced a recurrent MRSA infection and recurring cyst/granuloma on the back of his neck following wound exploration, debridement, and closure. (c) With respect to any disability identified above, is it as likely as not (a probability of 50 percent) that the additional disability was caused by medical or surgical treatment, or examination furnished to the Veteran by the VA or the UMMC? In answering this question, the examiner may address whether the additional disability was the natural progress of the underlying disease or caused by a failure to follow medical instructions. (d) If so, is it as likely as not (a probability of 50 percent) that the disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? Note: the Veteran has alleged that the infection was a result of improper sterilization procedures during the surgical procedure. (e) Regardless of the answer to (d), is it at least as likely as not (a probability of 50 percent) as not that the additional disability was not reasonably foreseeable OR an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided? (e) A well-reasoned rationale must be provided for each opinion offered. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.