Citation Nr: 1031992 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 06-13 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for ringing in the ears and mood swings s a result of medical treatment furnished at a VA medical facility. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the case in February 2009. The Board requested that the Veteran be provided with additional notification in accordance with the Veterans Claims Assistance Act (VCAA), that additional VA medical treatment records be obtained and associated with the claims file, and that the Veteran be afforded a VA examination. In accordance with the remand, the Veteran was provided with additional VCAA notification, and additional VA treatment records were obtained. The Veteran was also scheduled for a medical examination, but the record indicates that he refused to report for the examination. See 38 C.F.R. § 3.655 (2009) (in an original compensation claim, the claim shall be rated based on the evidence of record when a claimant fails to report for a VA medical examination). The case has since been returned to the Board for appellate review. In an April 2009 statement of record, the Veteran indicated that he wished to file a service connection claim for aggravation of a herniated disc under 38 U.S.C.A. § 1151, and wished to file claims to reopen service connection claims under 38 U.S.C.A. § 1151 for paralyzed vocal cords and numbness of the left thumb and forefinger. However, those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran has not been shown to have any ringing in his ears or mood swings that are an additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers, nor does the evidence show that any additional disability was an event that was not reasonably foreseeable. CONCLUSION OF LAW The requirements for compensation under 38 U.S.C.A. § 1151 for ringing in ears and mood swings as a result of medical treatment furnished at a VA medical facility have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.358, 3.361 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board does acknowledge that the RO did not provide the Veteran with adequate notice prior to the initial rating decision in April 2005. Nevertheless, the RO did send the Veteran letters in March 2006, March 2009, and December 2009, which did meet the notification requirements. The Board finds that any defect with respect to the timing of the notice requirement was harmless error. In this regard, the Board notes that, while notice provided to the Veteran was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the case, notice was provided by the AOJ prior to the most recent transfer and certification of the Veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the Veteran's claim was readjudicated in a supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The Veteran has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the Veteran. Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letters about the information and evidence that was necessary to substantiate his claim for entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for medical treatment furnished at a VA medical facility. Specifically, the March 2009 letter indicated that there must be evidence that additional disability was caused by hospital care, lack of proper skill, error in judgment, or similar instance of fault on part of the VA or was an event that was not reasonably foreseeable. That letter also stated that the Veteran needed evidence showing that he has additional disability or the aggravation of an existing disease or injury that was the direct result of VA fault, such as carelessness, negligence, lack of proper skill, or error in judgment, or was not a reasonably expected result or complication of VA care or treatment. Additionally, the March 2006 statement of the case (SOC) notified the Veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim under 38 U.S.C.A. § 1151. In addition, the RO notified the Veteran in the notice letters about the information and evidence that VA will seek to provide. In particular, the March 2009 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim and that VA was requesting all records held by Federal agencies, including service treatment records, military records, and VA medical records. The Veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the Veteran about the information and evidence that he was expected to provide. Specifically, the March 2009 letter notified the Veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. This letter also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the March 2009 letter informed the Veteran that it was his responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date. In this regard, the Board notes that the March 2006 and December 2009 letters informed him that a disability rating was assigned when a disability was determined to be service-connected and that such a rating could be changed if there were changes in his condition. The letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are relevant to his claim. In addition, VA obtained a medical opinion in April 2005 in connection with the Veteran's current claim. As noted earlier, the Board also determined that an additional medical opinion should be obtained. As a result, a letter was sent to the Veteran in February 2010 informing him that he would was being scheduled for a VA examination and that he would be notified of the time and place. It was also noted that he should contact the medical facility if he could not keep the appointment or wanted to be rescheduled. The letter specifically stated that, "When a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated on the evidence of record, or even denied." However, it was subsequently noted that month that the Battle Creek VA Medical Center had cancelled the examination because the Veteran refused to report. The Appeals Management Center (AMC) contacted the Veteran via telephone in March 2010, and he verified his current mailing address. He stated that he was "done with VA" and declined to be rescheduled for the examination. His representative also confirmed in a July 2010 informal hearing presentation that he appears to be refusing a VA examination. As such, the Veteran has not indicated a willingness to report for an examination, nor has he provided any good cause. Therefore, the Board finds that the AMC attempted to complete the development requested in the prior Board remand and complied with the remand instructions. Stegall v. West, 11 Vet. App, 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. . . . . VA has not only the discretion, but in this case, the duty under 38 U.S.C. § 5103A(d). . . to schedule an examination . . . . [The veteran] and his counsel are expected to cooperate in the efforts to adjudicate his claim. Their failure to do so would subject them to the risk of an adverse adjudication based on an incomplete and underdeveloped record." See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Olson v. Principi, 3 Vet. App. 480, 483 (1992). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC and a SSOC, which informed them of the laws and regulations relevant to the Veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). Since the Veteran filed his claim after that date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. In determining whether additional disability exists, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 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 veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that that the veteran has an additional disability or died 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 diagnoses and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death 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). 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 or death, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death 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. 38 C.F.R. § 3.361(d)(2). In considering the evidence of record under the laws and regulations as set forth above, the Board notes that the adjudication of the issue has been made significantly more difficult by the Veteran's failure to report for the February 2009 VA examination that was offered pursuant to the Board's February 2009 remand. According to 38 C.F.R. § 3.655, in an original compensation claim such as this one, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record. The record shows that, in December 2004, the Veteran claimed service connection under 38 U.S.C.A. § 1151 for ringing in his ears and for mood swings. In his original claim, he asserted that oxycodone prescribed by VA caused these disorders. He states that he informed VA of an allergy to codeine-based drugs, such as oxycodone, but that he was nevertheless prescribed oxycodone. An April 2001 VA treatment record supports the Veteran's contention that he notified VA medical personnel of his allergy, as codeine is noted on that record under "allergies." The Veteran has also contended, according to a December 2004 VA treatment record, that Percocet may have caused his tinnitus. In addition, the Veteran's representative asserted in a July 2007 statement that quinine sulfate may have caused ringing in the Veteran's ears. The Board finds that the record supports the Veteran's claim of currently having ringing in his ears and mood swings. VA treatment records dated since the late 1990s note the Veteran's psychiatric problems related to his chronic pain, to include mood swings. These records also note the Veteran's complaints of tinnitus. The Board further observes that the Veteran's lay statements support his claims of having tinnitus and mood swings. Laypersons are generally not capable of opining on matters requiring medical knowledge (e.g., whether a disorder relates to service). See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). However, lay testimony is competent to establish the presence of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Indeed, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. The Board is within its province to weigh lay evidence and to make a credibility determination as to whether such evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this matter, the Board finds the lay statements of record are probative on the issue of whether the Veteran currently has tinnitus and mood swings. The Veteran is clearly competent to attest to his symptoms regarding tinnitus, which is defined as, "[n]oises (ringing, whistling, hissing, roaring, booming, etc.) in the ears." See Stedman's Medical Dictionary 1838 (27 ed. 2000). A ringing noise in the ears is an "observable" symptom. See Layno, supra. Likewise, the Veteran is competent to testify regarding his emotional state, to include mood swings. Therefore, the Veteran's assertions that he currently has such disorders are of probative value therefore. Nevertheless, the Board finds that the preponderance of the evidence of record is against the Veteran's claim under 38 U.S.C.A. § 1151. In this regard, there is no competent evidence showing that the Veteran's current tinnitus and mood swings are an additional disability that are the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers. Nor does the evidence show that any additional disability was an event that was not reasonably foreseeable. A review of the record reveals that the Veteran injured his neck and upper back area in a post-service motor vehicle accident in November 1985 and incurred chronic disorders. A November 1985 report from the Michigan Department of Social Services reflects a diagnosis of "chronic intractable benign (non-malignant) pain syndrome" and reactive depression as a result of the accident. Private magnetic resonance imaging in October 1986 also showed herniated discs in the cervical spine, and private and VA medical records dated since the mid 1980s document the Veteran's complaints of pain in the neck, upper back, and shoulder areas. VA treatment records dated in November 1997 further indicate that the Veteran was evaluated for "individual psychotherapy and pain management" and reflects a diagnosis of "cannabis dependence" based on the Veteran's reported daily use of marijuana for 20 years. In addition, a December 1997 VA report notes a diagnosis of mood disorder secondary to chronic pain and again notes cannabis dependence. Moreover, VA treatment records dated in December 1999 indicate a diagnosis of complex regional pain syndrome. As such, it appears that the Veteran developed some mood problems that that were considered secondary to his accident and injuries sustained therein. The Board does note that VA medical evidence dated from the late 1990s indicates that the Veteran's pain symptoms have been treated with many pain medications, including methadone, morphine, trazodone, elavil, flexeril, tegratol, baclofen, acetaminophen, Zoloft, a clonidine patch, ibuprofen, lidocaine, valium, depakote, gabitril, Tylenol #3, Motrin, salsalate, venlafaxine, neurontin, vioxx, Paxil, ultram, celexa, cortisone, marcaine, piroxicam, serzone, toradol, metaxalone, etodolac, vicodin, Prozac, Paxil, ativan, naproxen, hydrocodone, tizanidine, and combined cervico-thoracic nerve blocks. Moreover, the VA treatment records specifically indicate that the Veteran was prescribed oxycodone, quinine, and Percocet. The Board also notes again that the lay statements of record were reviewed. As indicated, the Veteran has maintained that oxycodone and Percocet caused his tinnitus and mood swings, while his representative has suggested that quinine may have caused his tinnitus. However, although lay witnesses may be competent to testify regarding observable symptoms, a lay person is not competent to testify regarding etiology of the symptoms he experiences. The record on appeal does not indicate that the appellant or his representative has the expertise to provide an opinion that requires specialized knowledge, skill, experience, training or education, such as an opinion as to the etiology of tinnitus or mood swings. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The only medical evidence of record addressing the contentions of the Veteran and his representative weighs against the claim. Indeed, the April 2005 VA examiner opined that the Veteran's tinnitus and mood swings were not caused by his prescribed medication. The Board reiterates that a recent VA compensation examination and opinion could have proven useful here. Additional medical inquiry addressing whether medication prescribed to the Veteran caused tinnitus and mood swings could have resulted in evidence of probative value. However, the Veteran failed to report to the examination requested by the Board in February 2009. See 38 C.F.R. § 3.655. As such, the decision here must be based on the evidence of record. The available evidence clearly preponderates against the Veteran's claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). In summary, the record does not indicate that the Veteran currently suffers from an additional disability that was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or that was the result of an event not reasonably foreseeable. 38 U.S.C.A. § 1151. While the Veteran has repeatedly asserted that he continues to suffer from ringing in his ears and mood swings due to prescribed medication, he lacks the medical expertise necessary to render a competent medical opinion regarding causation. For these reasons, the Board finds the preponderance of the evidence against the Veteran's claim for compensation under 38 U.S.C.A. § 1151. Accordingly, the Board concludes that compensation for ringing in the ears and mood swings pursuant to 38 U.S.C.A. § 1151 is not warranted. ORDER Compensation pursuant to 38 U.S.C.A. § 1151 for ringing in the ears and mood swings as a result of medical treatment furnished at a VA medical facility is denied. ____________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs