Citation Nr: 21021838 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-32 094 DATE: April 14, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151 is denied. FINDINGS OF FACT 1. The Veteran died in June 2011 and the Appellant seeks surviving spouse benefits. 2. The Veteran’s death certificate lists the immediate cause of death as multiorgan failure due to methicillin-resistant staphylococcus aureus sepsis (MRSA) due to constrictive pericarditis due to intracerebral hemorrhage. 3. At the time of the Veteran’s death, service connection was not in effect for any disability and there was no evidence indicating a relationship between any of the disabilities on his death certificate and active service. 4. The preponderance of the evidence is against a finding that any disease or injury incurred in or aggravated by service caused or contributed materially to the Veteran’s death. 5. The Veteran’s MRSA infection has not been shown to be proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1103, 1110, 1112, 1116, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1958 to August 1960. The Veteran died on June [REDACTED], 2011. The Appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Milwaukee, Wisconsin. The Appellant appeared before the undersigned Veterans Law Judge for a June 2017 Board hearing. A copy of the hearing transcript is of record. In March 2018, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to service connection for the cause of the Veteran's death. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or is etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the Veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312 (c)(1). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) an etiological relationship between the claimed disease or injury in service and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran died in June 2011. At the time of death, service connection had not been established for any disability. The official certificate of death lists the official causes of death as multiorgan failure due to methicillin-resistant staphylococcus aureus sepsis (MRSA) due to constrictive pericarditis due to intracerebral hemorrhage. The Appellant contends that the Veteran contracted a MRSA infection while receiving treatment at a VA hospital that was not properly treated, which was a major contributing factor to the Veteran’s death. The Appellant has not asserted that an event in-service or service-connected disability caused the Veteran death. At the time of the Veteran’s death, service connection was not in effect for any disability. The service medical records do not show any complaints, treatment, or diagnoses related to the disabilities that caused or contributed to death, and there are no competent medical opinions of record indicating that there is any relationship between the Veteran’s service and his cause of death. The service medical records show no treatment for any heart condition, MRSA, sepsis, or intracerebral hemorrhage. The May 1960 separation examination shows normal heart, chest, and vascular examinations. In June 2012, a VA doctor opined that MRSA was incurred during the Veteran’s treatment at the Columbia VA hospital and was successfully treated with a six-week course of treatment. That doctor reasoned that since the University Hospital admittance report did not mention a MRSA infection that implied that a new MRSA infection developed in University hospital stay. However, that doctor did not opine whether the six-week course of treatment provided was the course that a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have used to treat a patient with the Veteran’s age and health complications. Nor did that doctor opine whether the treatment provided for the Veteran’s lower extremity pseudomonas was reasonable for a patient with the Veteran’s age and health complications. 38 C.F.R. § 1151(d)(1). In a March 2018 Remand, the Board found a June 2012 medical opinion to be incomplete. Therefore, the June 2012 VA medical opinion will not be considered in the adjudication of the claim. In a November 2019 VA opinion with March 2020 addendum, a physician opined that, based on a review of body of evidence and relevant medical literature and in accordance with accepted medical principles, it was his professional opinion that it was unknowable and would require resorting to speculation to opine as to whether it is it at least as likely as not (50 percent or greater probability) that the MRSA infection was an additional disability caused by VA treatment. The March 2020 provider explained that the Veteran had two MRSA infections. The first was diagnosed in April 2011 based on blood culture which grew MRSA. Bloodstream infections originate from an external source. Medical treatment records show the Veteran had multiple potential sources for the infection including a left leg with pus pocket and ulcer draining thick white fluid, pneumonia, right upper extremity red and draining pus, skin disruption of the right groin, and bilateral lower extremity swelling, redness, warmth. The examiner explained that all of those were potential sources of the Veteran's bloodstream infection, but it would require speculation on the part of the examiner to opine which of those caused the infection. Even the Veteran's treating physicians indicated they were unsure of the source of the bloodstream infection. The examiner further explained that the Veteran was tested for the presence of ongoing infection after starting treatment for the April 2011 infection. Six separate blood cultures from May 2011 and June 2011 were all negative. The negative predictive value accuracy of the follow-up testing for determining infection clearance had been established by medical literature: a single negative blood culture rules out ongoing infection 91 percent of the time. Each subsequent negative blood culture is approximately 95 percent accurate in excluding ongoing infection. The Veteran had six negative blood cultures after starting VA treatment. Thus, the likelihood of having ongoing infection from the original April 2011 MRSA infection was incredibly small and certainly less likely than not. The infectious disease physicians quoted in the December 2019 claimant statement worked in a different hospital system than VA where those six negative blood culture results were performed. The medical treatment records do not show that they were aware of that data. The examiner explained that the original April 2011 infection was treated with six weeks of daily intravenous antibiotics. That was the recommended treatment for such infections. After the April 2011 infection was diagnosed, the Veteran underwent transesophageal echocardiography which did not show evidence that the infection had spread to the heart. The Veteran was evaluated by an infectious diseases specialist in June 2011, and there was no mention of suspicion for ongoing infection from the April 2011 infection. One would expect that if the infectious disease specialist determined or considered the Veteran had an ongoing infection that would have been reported. However, medical records do not show that. The Veteran was evaluated by an infectious diseases specialist at University Hospital in June 2011 where the physician reported the Veteran with a new onset of bilateral bullous leg rash. Such a leg rash is a known source for MRSA bloodstream infection. The Veteran's death certificate states that the MRSA infection that led to his death started approximately eight days prior to death. That indicated that the infection started during the Veteran's University Hospital admission from June 19, 2011, to June [REDACTED], 2011. In support of the claim, the Appellant testified before the undersigned Veterans Law Judge at a June 2017 hearing. During that hearing, the Appellant reasserted a contention that the Veteran’s death was, in part, due to a MRSA infection that was cause by VA treatment. During the hearing, a registered nurse also testified at the Board hearing that it is common knowledge in the medical field that MRSA infections can be intermittent or persistent, and that it is not uncommon for infections to come back out. The Board has considered whether service connection for the cause of death (multiorgan failure due to methicillin-resistant staphylococcus aureus sepsis due to constrictive pericarditis due to intracerebral hemorrhage) could be warranted on a direct basis. None of the Veteran's medical treatment providers have given any indication in the record that the Veteran's cause of death could be related to active duty service or to any service-connected disability. The only evidence which provides any connection between the Veteran's cause of death and service comes from the Appellant. The Appellant has not submitted any competent medical opinion relating this specific Veteran's MRSA due to constrictive pericarditis due to intracerebral hemorrhage to service or any symptoms or treatment during service. The Board finds that the March 2020 VA medical opinion is persuasive because of the training of the examiner and because the examiner considered the contention. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the appellant's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether the Veteran's cause of death (MRSA, constrictive pericarditis, and/or intracerebral hemorrhage) was caused by active service or a service- connected disability, those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Appellant possesses the medical expertise to provide etiology or diagnostic opinions, and no competent positive nexus opinions are of record. The March 2020 VA examiner stated that the cause of the Veteran’s MRSA infection was unknowable and would require resorting to speculation. In great detail, the examiner went through the Veteran’s treatment history and explained that the Veteran had numerous potential sources of infection. However, the examiner explained that the likelihood of the Veteran having an ongoing infection from the original April 2011 MRSA infection at a VA facility is incredibly small and was certainly less likely than not. The Board finds the March 2020 VA examiners' opinion to be more probative than the lay statements of record and the other medical evidence of record. The opinion of the March 2020 VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional with citation to medical literature regarding likelihood of negative testing being accurate. The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability. Accordingly, the March 2020 VA opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). 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. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board acknowledges that the March 2020 examiner opined that it was his professional opinion that the answer to the question regarding whether it is it at least as likely as not (50 percent or greater probability) that the MRSA infection was an additional disability caused by VA treatment was unknowable and would require resorting to speculation. In this circumstance, the Board finds that the examiner provided sufficient explanation as to why an opinion cannot be provided without resort to speculation. In addition, the examiner provided an in depth analysis of the percentage likelihood that the original MRSA was still present in June 2011, based on analysis of the negative blood culture results in finding it was less likely than not that the original MRSA infection was present in June 2011. The examiner reviewed the claims file and described the disability in sufficient detail to enable the Board to make a fully informed decision on the claim. D’Aries v. Peake, 22 Vet. App. 97 (2008) (examination is adequate when it is based on consideration of the claimant’s medical history and describes the disability in sufficient detail so the Board’s evaluation of the disability will be a fully informed one); Monzingo v Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for the opinion, even when the rationale does not explicitly lay out the examiner’s journey from the facts to a conclusion); Acevedo v. Shinseki, 25 Vet. App. 286 (2012) (the law imposes no reasons-or-bases requirement on examiners). The examiner specifically acknowledged and discussed what the medical evidence of record did and did not show in connection with the claim. The Appellant’s contentions were addressed. There are no apparent inconsistencies or ambiguities in the examination report. The Board, in its own lay capacity, is not otherwise qualified to call into question the VA examiner’s medical judgment, nor does the Board find any reason to do so. Monzingo v Shinseki, 26 Vet. App. 97 (2012). As the examination and opinions have sufficiently informed the Board of both the examiner’s judgment on the medical questions at issue and the essential rationale for the opinions made, the Board finds that the March 2020 VA examination is adequate. Service connection may be established when all the evidence establishes a medical nexus between service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds no competent probative evidence of a direct medical nexus between service and the cause of the Veteran’s death. The Board finds that the evidence of record weighs against such a finding. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between the Veteran's service and his cause of death is demonstrated by the evidence of record. The Board is sympathetic to the Appellant in that it is clear that the Appellant sincerely believes the Veterans' cause of death is the result of VA treatment. However, the most persuasive evidence of record does not support that contention. The weight of the competent and credible evidence establishes that the Veteran's cause of death is not related to active service or treatment received at a VA facility. The Board finds it significant that the service medical records do not show any findings, treatment, or diagnosis for any MRSA, constrictive pericarditis, or intracerebral hemorrhages. There is also no medical evidence of record to show that the Veteran's causes of death manifested to a compensable degree within one year after separation from service. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. West, 12 Vet. App. 453 (1999); Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). The Board is appreciative of the Veteran's faithful and honorable service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for the Veteran's cause of death, the claim must be denied. 38 U.S.C. § 1318; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151. Compensation shall be awarded for a qualifying additional disability in the same manner as if that additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability 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(a). To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 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). 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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 the hospital care, medical or surgical treatment, or examination caused the additional disability. 38 C.F.R. § 3.361(c). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, representative’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim 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). The Appellant contends that the Veteran contracted a MRSA infection while receiving treatment at a VA hospital, which was not properly treated, and was a major contributing factor to the Veteran’s death. In a March 2020 medical opinion, the examiner, a physician, opined that, based on a review of body of evidence and relevant medical literature and in accordance with accepted medical principles, it is my professional opinion that it is less likely than not that VA physicians failed to treat the Veteran by discharging the Veteran prior to full recovery from the MRSA infection, discharging the Veteran without any medications or instructions to help prevent reoccurrence of the MRSA infection, or by not properly wrapping and protecting the Veteran's lower extremity pseudomonas. The examiner also stated that it was less likely than not that a physician exercising the degree of skill and care ordinarily required of the medical profession, reasonably should have provided a patient with the Veteran's age and health complications a longer course of treatment for MRSA infection, discharged the Veteran with at home medication or instructions to help prevent reoccurrence of the MRSA infection, or kept the veteran's lower extremity pseudomonas sterilized and protected. The examiner explained that, upon the Veteran's April 2012 blood culture growth of MRSA, he had a condition known as complicated bacteremia, which is defined as positive blood cultures in the presence of an implanted prosthesis, in this case aortic valve replacement. Contemporaneous treatment guidelines for complicated bacteremia recommended (and still recommend) four to six weeks of therapy. This Veteran received six weeks of therapy. Some of that therapy was administered intravenously at the Veteran's home by home health nurses. Discharging patients from the hospital to receive remaining intravenous treatments is common practice and considered the standard of care. Discharging the patient to home for treatment completion versus prolonged hospitalization for treatment completion would not be considered failing to treat the Veteran. The examiner further explained that medical records actually showed that the Veteran received intravenous antibiotics administered by a home health nurse every day for six weeks. The medical records also showed that the Veteran's wife and daughter were assisting in wound care, had a home health nursing available every day, knew where to call to get more information, and had no questions regarding discharge instructions. The examiner stated that it is unclear where the question of lower extremity pseudomonas arose. Pseudomonas is a type of bacteria. Pseudomonas was not mentioned in the June 2017 hearing transcripts nor in multiple submitted statements in support of claim. The only test results related to pseudomonas had nothing to do with the Veteran's leg, but rather the bacteria grew in an April 2011 urine culture and was subsequently determined to be a contaminant and not an infection. Medical records indicated that the Veteran's lower extremities were managed by wound care nurses multiple times and that he received appropriate wound care management. The March 2020 examiner also opined that, based on review of body of evidence and relevant medical literature and in accordance with accepted medical principles, it was that examiner’s professional opinion that it was less likely than not that the MRSA infections represented additional disability caused by VA treatment that was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or an event not reasonably foreseeable. The examiner explained that the issue of the source of the infection and whether the infection was caused by VA treatment was unknowable and would require resorting to speculation as previously explained above. The examiner also explained that the body of record contained no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault that would increase the Veteran's risk of the infection (such as unneeded invasive procedures, improper hygiene, inappropriate immune-suppressing medications, etc.). The Veteran's baseline cirrhosis, ascites, and diabetes put him at a higher than usual risk of infection. Therefore the MRSA infection was reasonably foreseeable. The infection was cleared and did not lead to the Veteran's death. Regarding the June 2011 MRSA infection, the examiner explained that the infection originated during the Veteran's University Hospital admission and was unrelated to VA treatment. The Board assigns great probative weight to the competent, probative, and comprehensive findings of the March 2020 VA examiner. The opinion was made following a thorough review of the claims file and medical history. The VA examiner concluded that the Veteran’s MRSA was not due to carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA in furnishing medical treatment to the Veteran for his condition. The Board notes that there are no other competent nexus opinions of record. The Board acknowledges that the Appellant is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that she attributes an infectious disease or cause of death to the administration of treatment by VA, such a determination involves complex dental findings beyond the Appellant’s competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the statements in that regard, and of the medical professional at the hearing, are of less probative value than the findings of the March 2020 VA examiner because the VA examiner reviewed the complete record and provided a detailed opinion based on that review and research of medical literature. The Board is appreciative of the Veteran's honorable service to our country. However, the Board finds that the preponderance of the evidence weighs against the claim of entitlement to compensation under 38 U.S.C. § 1151. The competent and probative evidence of record does not support a finding that any additional disability or cause of death was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. Accordingly, the criteria for VA compensation benefits under 38 U.S.C. § 1151 are not met, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.