Citation Nr: 9836883 Decision Date: 12/18/98 Archive Date: 12/30/98 DOCKET NO. 96-13 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a back disability incurred or aggravated as a result of VA medical treatment. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran had active duty from March 1944 to June 1950. In January 1982, the Board of Veterans’ Appeals (BVA or Board) denied benefits for residuals of VA back surgery after finding that the veteran did not incur any additional disability due to carelessness, negligence, accident, lack of proper care, or error in judgment. In reaching that decision the Board relied upon the provisions of 38 C.F.R. § 3.358(c)(3). In Gardner v. Derwinski, 1 Vet. App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994), the United States Court of Veterans Appeals held that 38 C.F.R. § 3.358(c)(3) was invalid as a matter of law. Accordingly, this claim will be reviewed de novo. This matter comes before the Board on appeal from a July 1995 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veteran Affairs (VA), which denied compensation under the provisions of 38 U.S.C.A. § 1151. REMAND After carefully reviewing the evidence of record the Board finds further development to be warranted in this case. The appellant contends that he is entitled to compensation under 38 U.S.C.A. § 1151 for residuals of back surgery performed at a VA hospital in 1972. The medical records indicate that in January 1972, the veteran was admitted to the Fort Wayne, Indiana VA hospital complaining of a long history of chronic low back pain following an industrial accident. After extensive workup, including a neurological consult, a bilateral posterolateral fusion from L4 to S1, a total laminectomy at L5, and exploration of the L5-S1 disc space were performed in February 1972. The extensive operative report concluded that the veteran tolerated the procedure well and he was transferred to the intensive care unit for his postoperative course. VA hospital treatment records indicate that on the first day following the operation, the veteran spiked a temperature of 104 degrees. On postoperative day three, he again spiked a temperature to 104 degrees. Pus and serous drainage were noted in the bone in March 1972, requiring an incision and drainage of the surgical wound abscess. During the procedure, the wound was debrided of all extraneous loose material. Several small pieces of the bone graft, present deep in the wound that were loose, were removed. Subsequent testing revealed the infectious organism was staph coagulase positive and was sensitive to Oxacillin. The veteran remained on Oxacillin and Darvon and was discharged in April 1972 without infectious symptomatology. An x-ray revealed no findings of abscess or osteomyelitis. A VA hospital summary in June 1973 reported that the veteran had been followed because of a deep surgical infection following an attempt to do a posterior fusion for spondylolisthesis. The veteran was again admitted in January 1974. His diagnosis was spondylolisthesis, Grade II and back pain, etiology unknown, status postoperative bilateral mass fusion complicated by a staphylococcus aureus infection of wound. The veteran received treatment for his back problems at Kosciuski Community Hospital, from November 1979 to December 1979. He was diagnosed with osteomyelitis and sterile abscess of the iliac crest. In other treatment records from December 1979, the veteran was diagnosed with probable recurrent osteomyelitis of the left sacral iliac area, secondary to previous taking of bone grafts. In January 1980, he was diagnosed with a large abscess of the left posterior sacroiliac area; possible recurrent osteomyelitis of posterior left iliac bone. In a January 1980 medical statement from George M. Haymond, M.D., the veteran was reported to be chronically disabled due to apparently old lumbar disc disease which was treated surgically at a VA hospital and subsequently resulted in extensive wound and bone infections. The veteran was noted to have eventually recovered from these but remained chronically and totally disabled. The veteran was reported to have recently had a reoccurrence of the bone infection where the bone graft had been taken from the posterior left iliac area. This area was noted to be healing, but the veteran was having a great deal of low back pain. The veteran received treatment for his back in October 1980 from Kosciuski Community Hospital. The veteran was noted to have undergone at least 10 to 12 operative procedures on his back, primarily those directed at trying to stabilize his back and clearing up a wound and bone infections. The last infection was reported to have occurred one year previously. As a result of these numerous surgeries and continuing back pain, he reportedly was totally disabled. The diagnosis was severe chronic unstable back with associated chronic pain secondary to previous disc surgery; possible recurring bone infection of lumbar and iliac spine area. In an August 1981 treatment report from Kosciuski Community Hospital, the veteran was reported to have underwent an excision of the wound at the left mid back. The final diagnosis was chronic wound left mid back. An April 1988 VA bone scan revealed no evidence of osteomyelitis to the left ileum. The veteran, from April to May 1988, received VA hospitalization for left sacral decubitus care. A history of paraplegia since 1972 was noted. The veteran’s then current ulcer was noted to have been reoccurring since 1982. X-ray of the pelvis was negative and indium scan to rule out the bone scan which was also negative. Cultures were negative except for staphylococcus. The preoperative diagnosis was left sacral decubitus. He underwent a left gluteus myocutaneous flap and split thickness graft. The veteran tolerated the procedure well. In a September 1997 medical statement, Craig N. Bash, M.D., of the Paralyzed Veterans of America, concluded that a disability resulted from the veteran’s care at a VA Medical Center in February 1972. He stated that it is commonly known that a graft site will become infected without good medical attention, such as the use of a prophylaxis. Dr. Bash further stated that this graft site could progress to osteomyelitis, requiring extended and repeated care. Dr. Bash believed that this appeared to have happened to the veteran as required subsequent hospitalization, including skin graft surgery in 1979. He believed the prior surgeries could have created a vascular compromise which would possibly have lent the area more susceptible to reinfection. Dr. Bash concluded that osteomyelitis was a chronic disease and there were obvious residuals from the skin graft surgery. Dr. Bash recommended that x-ray films from 1978 and 1979 be secured. In view of the totality of the evidence, the Board finds that there is a reasonable possibility that there is residual disability due to treatment received at a VA facility. See Horowitz v. Brown, 5 Vet. App. 217, 222 (1993). The record, however, record as it stands is currently inadequate for purposes of rendering a decision. See Crawford v. Brown, 5 Vet. App. 33, 36 (1993). As such, the Board finds that further development, in particular an examination, is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify any health care provider who has provided treatment for any back infections since May 1988. Following receipt of the veteran’s response appropriate action should be undertaken to secure records which are not currently associated with the claims folder. 2. The RO should contact the Fort Wayne VA hospital and attempt to secure any x- rays of the veteran’s spine that were taken in 1978 and 1979. 3. Following completion of the foregoing the veteran should be scheduled for an examination at a VA medical center other than the Fort Wayne facility, to determine the nature and etiology of any current back disorder. This examination should include all necessary evaluations, tests, and studies deemed appropriate. Following completion of the examination and a review of the claims folder, the examiner must offer an opinion as to whether VA’s treatment of the veteran during his hospitalization in 1972 caused or aggravated any current back disability. The examiner should further offer an opinion whether it is at least as likely as not that the veteran currently suffers from any residual of the infection documented in 1972. The examiner should understand that the Board is not asking whether the treatment provided to the veteran was negligent. Further, the Board is not asking the examiner to offer an opinion as to whether the veteran was a victim of malpractice, carelessness, lack of proper skill, error in judgment, or similar instances involving a connotation of “fault.” Rather, the Board is asking whether the veteran left the VA hospital in April 1972 with a disability he did not have at admission, and whether the veteran currently has a disability that was incurred or aggravated as a result of the aforementioned 1972 surgical procedure. All opinions, and the supporting rationales, should be in writing. Since it is important that the disability be viewed in relation to its history, the veteran's claims folder, his extensive four volumes of VA medical records, and a copy of this REMAND, must be made available to and reviewed by the examiner prior to conducting the requested examination. The examination report should be typed. The appellant must be given adequate notice of this examination, to include advising him of the consequences of failure to report. If he fails to report for this examination, that fact should be noted in the claims folder and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. In the event that the veteran does not report, the RO should nevertheless refer the files to a VA orthopedist for review and to secure the aforementioned opinions. 3. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the RO must implement corrective procedures at once. Upon completion of the above development, the RO should readjudicate the issue on appeal. If the determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and be given an opportunity to respond. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. DEREK R. BROWN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998). - 2 -