Citation Nr: 21014762 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-01 108 DATE: March 15, 2021 REMANDED Entitlement to service connection for a right knee disability, claimed as right knee osteomyelitis, for accrued benefits purposes is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for Methicillin-Resistant Staphylococcus aureus (MRSA), to include as the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1960 to December 1964. The Veteran passed away in January 2011. The Appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a VA Regional Office (RO). The Board previously remanded the claims in March 2019 for further development. As will be discussed below, the resulting opinion and subsequent development was not responsive to the Board's directives and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). 1. Entitlement to service connection for a right knee disability, claimed as right knee osteomyelitis, for accrued benefits purposes is remanded. During his lifetime, the Veteran indicated he initially injured his right knee in service and had subsequent right knee problems since that time. His service treatment records reflect the Veteran had a tear of the lateral meniscus to his right knee on August 1964. After service, the Veteran underwent right total knee replacement in August 2001 by a private physician. Thereafter, in December 2008, he received VA treatment of his right knee to include a “washout” of his right knee joint. The Appellant contends this treatment caused an infection, which ultimately led to his death. The Board’s March 2019 remand requested the RO to associate with the claims file all VA treatment records, to include all 2008 records from Shreveport VA Medical Center (VAMC), the Veteran’s right knee “washout” procedure, which is contended by the Appellant to be the source of the Veteran’s MRSA infection. Although not directly related to the underlying service connection claim, the records relate to the Veteran’s overall right knee condition and, therefore, are pertinent to both issues on appeal. Upon a complete review of the claims file, the Board finds that no VA treatment records from Shreveport VAMC have been associated with the file. In addition, there is no memorandum or notice in the file claiming the records are lost, destroyed or otherwise unavailable. The Board notes, these records are particularly important as care received at a VA facility is also at issue in the 38 U.S.C. §1151 claim below. As such, the Board finds that substantial compliance with the Board’s prior remand directives has not been made and there remains a violation of the duty to assist. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2018). 2. Entitlement to compensation under 38 U.S.C. 1151 for Methicillin-Resistant Staphylococcus aureus (MRSA), to include as the cause of the Veteran's death is remanded. In addition to the outstanding records mentioned above, the Board’s March 2019 remand also directed the RO to afford the Appellant a VA medical opinion in connection with the claim. The Board reflects that to establish entitlement to compensation under 38 U.S.C. § 1151, VA medical care must have resulted in an additional disability (not the result of the Veteran’s willful misconduct) that was caused by carelessness, negligence lack of proper skill, error in judgment, or fault on the part of VA; or, alternatively, the additional disability must have resulted by an event not reasonably foreseeable. See also 38 C.F.R. § 3.361(b). In contrast, the provided opinion merely opined in August 2020 that "[g]iven his extensive medical history and overall poor prognosis, it is less likely than not that his MRSA and subsequent death were cause or related to malpractice by the VA". The examiner further explained that his medical conditions treated as appropriately as possible given his overall poor prognosis and the Veteran’s death was due to the serious nature of his past medical history. Unfortunately, the Board finds the August 2020 medical opinion is inadequate for adjudicative purposes on several grounds thus an additional remand is warranted. First, as noted above, the record does not contain VA treatment records necessary to decide the claim. Specifically, the record does not contain VA treatment records of the 2008 right knee surgery and subsequent wash out that are at the heart of the Appellant’s claims. As such, the examiner’s August 2020 opinion is based on a review of an incomplete or inaccurate medical history. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Second, the examiner’s opinion, did not specifically discuss or mention the Appellant’s contentions that her husband’s right knee surgery in 2008 was the cause of his MRSA infection, which later led to his death. The examiner did not refer to the 2008 knee surgery in her rationale nor is there any reference to the wash out of the right knee that occurred in December 2008. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn’t find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Lastly, the VA examiner did not opine as to whether the MRSA infection was a foreseeable risk of the surgery, or whether the Veteran received proper informed consent before the right knee procedures at a VA facility in 2008 advising him of this risk. Therefore, the Board finds an additional remand is warranted for an addendum medical opinion after full development of the claim has been completed. The matters are REMANDED for the following action: 1. Obtain copies of all VA treatment records, including those from the Shreveport VAMC from 2008 documenting the Veteran’s right knee surgery, and associate them with the Veteran’s claims folder. All efforts to obtain the Veteran’s VA treatment records must be documented in the claims file and if it is determined that further efforts would be futile, a memorandum outlining all steps taken and conclusions reached should be drafted and associated with the claims file. 2.After the above development has been completed, obtain a VA medical opinion from a VA examiner not at the Shreveport VA Medical Center (VAMC) of appropriate expertise who will opine as to whether the Veteran’s VA treatment of his right knee in 2008, namely the right knee surgery, resulted in an additional disability (to include but not limited to the MRSA infection and subsequent death) and if so, (a) whether the additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA; or (b) whether the additional disability was a reasonably foreseeable result of the right knee surgery; that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the right knee surgery at issue? The clinician should provide a complete rationale for all opinions, which discusses relevant medical and lay evidence of record. The claims file must be made available to the examiner and reviewed in conjunction with rendering the medical opinion. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.