Citation Nr: 1320889 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-42 195 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for chronic decubitus ulcers and osteomyelitis of the left hip, due to VA medical treatment. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the RO which denied the benefits sought on appeal. A hearing before the undersigned was held at the RO in May 2012. The claim of service connection for hearing loss and tinnitus is REMANDED to the RO for further development. FINDING OF FACT The Veteran's chronic decubitus ulcers and osteomyelitis of the left hip was not 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 treatment; nor was chronic decubitus ulcers and osteomyelitis due to an event that was not reasonably foreseeable. CONCLUSION OF LAW Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for decubitus ulcers and osteomyelitis of the left hip, due to medical treatment by VA is not warranted. 38 U.S.C.A. §§ 1151, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2007 (defective hearing and tinnitus) and September 2009 (§ 1151 claim). See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and testified at a hearing at the RO before the undersigned in May 2012. The Veteran's Virtual VA have also been reviewed. As will be discussed in greater detail herein below, the Board finds that the December 2011 VA orthopedic surgeon's examination and the February 2013 Independent Medical Expert (IME) report were comprehensive and adequate upon which to base a decision on the merits of the issues on appeal. The VA examiners personally interviewed and examined the Veteran, elicited a medical history and provided a rational explanation for the conclusions reached. The IME provided a discussion of the facts and analysis of the medical principles involved in this case, along with his statement that he "completely agreed" with the VA surgeon's opinion. The Board finds that the opinion taken as a whole sufficiently addressed the underlying legal questions in this case. Therefore, the Board finds that there was substantial compliance with IME directives. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran and his representative were provided with a copy of the IME report and allocated additional time to file a response. A response from the Veteran's representative was received in April 2013. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). As noted above, the Veteran testified a hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal, indicated the evidence necessary to substantiate the claims, and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available, but not yet part of the claims file. Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied. Compensation Pursuant to 38 U.S.C.A. § 1151 Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are payable for additional disability not the result of the veteran's own willful misconduct, where such disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee, or in a Department facility, where the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); see also VAOPGCPREC 40-97. Under applicable criteria, to determine whether a veteran has an additional disability, 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 (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). For claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination, actual causation is required. 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 the veteran has an additional disability or died does not establish cause. 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. 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). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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 the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d). 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). Chronic Decubitus Ulcers and Osteomyelitis Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran contends, in essence, that his recurring decubitus ulcers were the result of carelessness, lack of proper skill and error in judgment in furnishing surgical treatment and hospital care in the early 1970's, and that his osteomyelitis of the left hip was a reasonably foreseeable outcome of the substandard care provided by VA. The representative asserts that the Veteran's decubitus ulcer was not completely healed when he was discharged from a VA hospital in 1974, and that it became infected necessitating readmission a few weeks later. The representative argues that the Veteran's chronic recurring decubitus ulcers and subsequent osteomyelitis was the result of being discharged, prematurely from the VA hospital in 1974. Concerning the Veteran's contentions, while he is competent to provide evidence concerning his observations and experiences, any such assertions must be weighed against other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). The issue in this case involves a complex medical question; therefore, the Veteran is not competent to provide an etiology opinion. Historically, the record showed that the Veteran suffered a fracture of the thoracic spine (T5-7) in an automobile accident in April 1969, subsequent to service, and has been paraplegic with no functional use of his body below the rib level since the accident. A special VA orthopedic examination in December 1969, indicated that the Veteran had no voluntary control of hip muscles, no sensation below the hips, and that his entire body below the fracture site was weak and must be moved about with the Veteran as an inert structure. VA hospital records showed that the Veteran was admitted for treatment of a decubitus ulcer in February 1971. At that time, the Veteran reported that he noticed a small ulcer on the right buttock three weeks early that he treated with peroxide and ointment, but that it continued to enlarge, prompting him to come to the hospital for treatment. On admission, there was a round necrotic ulcer on the right ischial area with green-black pus which was debrided, and the Veteran was treated with antibiotics. Once the infection cleared up, the decubitus ulcer was treated with wet-to-dry dressings and healed slowly. On the 42 day (March 19, 1971), the Veteran was discharged home with the ulcer almost healed. Parenthetically, the Board notes that a treatment note dated March 9, 1971, indicated that the Veteran could be discharged the following day if he was able to get all arrangements made at home, and that he was provided a "codeform" and instructed to change the pack daily. The Veteran was readmitted with a large, deep decubitus ulcer on the right hip area in May 1971. The ulcer was excised in total and the right ischial tuberosity was excised in a wedge shaped fashion. A saddle flap was then elevated to close the defect and split-thickness graft was sutured in place. Upon closure, there was excellent hemostasis and a large bulky mildly compressive dressing was placed on the wound. The hospital records showed that the wound was cleaned and the dressing changed regularly, and that the ulcer healed slowly. A hospital summary dated in October 1971, indicated that the Veteran had been treated conservatively over the previous four months with frequent dressing changes and appropriate bed rest, and that the ulcer had healed quite satisfactorily. The Veteran was discharge on October 6, 1971, and was to be followed periodically in the Plastic Surgery clinic. VA hospital records showed that the Veteran was admitted for multiple decubitus ulcers on the buttocks and both ischials in March 1973 (to June 22, 1973), and underwent multiple procedures for rotation of flap with complete recovery. He was readmitted for a decubitus ulcer on the left ischium in July 1974. The admitting impression was decubitus ulcer, osteomyelitis, left ischium and paraplegia. The Veteran underwent debridement of decubitus ulcers with partial ischiectomy and rotation of local flap in July 1974, without complications and the wound was healing well when he was returned to the operating room in August 1974, for split-thickness skin graft to the right trochanteric area and the area of the abdominal for the flap. The skin graft healed well, but there was some difficulty with the original flap in the lateral aspect with healing, but this managed to heal with wet to dry dressings. The report indicated that the Veteran could resume normal pre-hospital activities when he was discharged in September 1974. An operative report, dated in October 1974, showed that the Veteran was readmitted two weeks later for excision of a large cavity below the pinhole draining sinus area on the left buttock. The Veteran tolerated the procedure and the wound healed nicely over the next two weeks, and the wires were removed. There was no evidence of cavity formation, infection or drainage noted. After the Veteran was up in a chair for several days, the wound was still felt to be intact and healing well, and he was discharged home to be followed in the Plastic Surgery clinic. VA hospital records showed that the Veteran was hospitalized for treatment of a neurogenic bladder and for burns to the feet and buttocks on a couple of occasions in 1982. A VA hospital report dated in March 1986, indicated that the Veteran had a sacral decubitus ulcer for the past year that was treated conservatively for several months, but would not heal completely, necessitating flap rotation with excision of the sacral decubitus ulcer in February 1986. The Veteran did well post-operatively, and the flap looked viable and the JP drainage tube was in place, when he was discharged in March 1986, to be followed-up by the plastic surgeon the following week. The Veteran was admitted to a VA hospital in May 2007 with diarrhea, abdominal bloating and leaking from his catheter. Prior to admission, the Veteran reported that he had been independent in his activities and denied any active bleeding, melena, hematochezia or trauma to his hip. He reported a recurrent trochanteric ulcer that had recently opened up again, but said that he did not have any significant bleeding from the site or any other bleeding. While in ICU, the Veteran developed septic shock and was found to be severely anemic. A CT scan revealed a fracture of the left femoral neck and possible septic arthritis. The Veteran underwent an extensive workup for chronic infection, including aspirations of the left hip on two separate occasions, neither of which yielded any fluid or revealed the presence of a pathogen. The Veteran also had two technetium indium scans one month apart that did not demonstrate osteomyelitis. Despite numerous diagnostic and laboratory testing, no clear etiology was identified for the cause of his symptoms. Finally, a bone marrow biopsy of the left acetabulum in August 2007, revealed chronic osteomyelitis of undetermined etiology. The favorable evidence in this case, consists primarily of a private medical opinion by Dr. Bash, received in October 2009. Dr. Bash indicated that he reviewed the Veteran's medical records and noted that he was initially treated for a decubitus ulcer on the right buttocks in February 1971, but that he was discharged from the hospital in March 1971, before the ulcer had healed completely. The Veteran went on to need readmission for numerous left and right-sided ulcers following his 1971 admission, and that his non-healed right side ulcer required ischial surgery in 1972. He noted that in 1974, the same area displayed periosteal reaction, which was consistent with osteomyelitis, and the Veteran has had recurrent ischial bone problems ever since his first admission in 1971, and now has osteomyelitis. Dr. Bash opined that the Veteran's chronic decubitus ulcers and osteomyelitis are due to his first incompletely treated decubitus ulcer in 1971. In explaining his opinion, Dr. Bash stated that the Veteran's early decubitus ulcer was not adequately treated and that he was released home to the same environment that caused his initial decubitus ulcer without any special precautions or additional training. Citing to a Paralyzed Veterans of America 2000 clinical practice guidelines, he noted that pressure ulcers begin deep inside the tissues close to the bone and erupt on the surface of the skin, and that while the skin may be discolored, the muscle underneath may be necrotic. When eschar is present, the pressure ulcer cannot be graded accurately until the eschar is removed. Stage I pressure ulcers are not always accurately assessed, especially in people with darkly pigmented skin. Dr. Bash stated that the Veteran's decubitus ulcers progressed to osteomyelitis of the bone and that he may now have a form of chronic osteomyelitis. He concluded that the medical records do not support another more plausible etiology for his current pressure sore pathology other than a slow progression of his early decubitus ulcers, which were inadequately treated. The time lag between his first sores and his current pathology is consistent with known medical principles and the natural history of this disease, as he has had many recurrent decubitus ulcer problems. In December 2011, the claims file was reviewed by a VA orthopedic surgeon to determine whether the Veteran's osteomyelitis and chronic decubitus ulcers were the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault due to VA treatment. The surgeon indicated that he reviewed the claims file and numerous medical records, interviewed the Veteran, and provided a description of the Veteran's medical history and treatment. The surgeon noted that the Veteran was treated for chronic ischial decubitus ulcers with surgical debridement including ischial tuberosity bony debridement, and that he required revision surgery because of a non-healing wound in July 1974, at which time the Veteran was reported to have osteomyelitis. After multiple procedures in the mid 1970's, the Veteran did not require any further treatment other than local wound care for periodic skin breakdowns, and for chronic urologic issues associated with his paraplegia that required multiple surgeries, including frequent UTI's and a chronic suprapubic catheter. The surgeon noted that the Veteran was admitted to a VA hospital in May 2007, with complaints of diarrhea, abdominal blotting, poor appetite and dysphagia, and was subsequently was found to have a Grade 3 decubitus ulcer over the left greater trochanter. The Veteran was severely anemic, developed septic shock due to urosepsis and was shown, by CT scan to have a fracture of the left femoral neck, joint effusion and possible septic arthritis. The Veteran underwent extensive work-up, including multiple nuclear scans that suggested evidence of infection about the left hip, but were not diagnostic for acute osteomyelitis. A biopsy of the acetabulum in August 2007, confirmed osteomyelitis. The surgeon also noted that an Infectious Disease specialist who examined the Veteran in June 2011, indicated that a bone scan did not suggest an active infectious process. The surgeon indicated that the Veteran was first diagnosed with osteomyelitis in 1974, and that the treatment he received at that time was appropriate to allow healing of the ulcer and removed the prominence of the ischial tuberosity to try to prevent recurrence. He opined that this procedure likely resolved the osteomyelitis, and that the Veteran did not have a recurrence of the ulcers, draining sinus, or constitutional symptoms to suggest chronic osteomyelitis in the years after this surgery. The surgeon explained that decubitus ulcers are unfortunate, common complications for paraplegic patients because of their inability to detect pain or change positions frequently, and that ulcers over the ischial tuberosity are common because this is where pressure is localized when sitting. The surgeon concluded that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment or fault due to VA treatment that led to the development of chronic osteomyelitis. The surgeon noted that the second episode of osteomyelitis involved the proximal femur and acetabulum, but that it was not possible to say with any degree of certainty when this began. He noted that the Veteran had an active UTI infection followed by another illness prior to his admission in May 2007, and that he was treated for septic shock during his hospitalization. He also noted that a CT scan did not show significant destructive changes in the post surgical pelvis that extended proximally to the hip. Therefore, he opined that the second episode of chronic osteomyelitis of the hip was a separate diagnosis which may have occurred due to hemotogenous seeding of the hip joint or bone of the proximal femur. As the infection progressed, the Veteran appears to have developed pathologic fractures of the proximal femur, destruction of the femoral head and significant involucrum and sequestrum of the proximal femur. Because the Veteran is a paraplegic, he would not have the typical symptoms of severe pain and limited tolerance for weight bearing or range of motion which is normally seen in acute infections about the hip. The hip infection was found serendipitously during the Veteran's work-up for anemia and constitutional symptoms, and was advanced with severe destructive changes already occurring in the hip. The surgeon opined that there was no way to foresee the hip infection that occurred sometime in 2007, and that the diagnosis was only possible as the result of the work-up for other symptoms associated with his impending urosepsis. In January 2013, the Board referred the claims file for an Independent Medical Expert (IME) opinion. In February 2013, the Assistant Professor of Surgery at Florida International University indicated that the claims file was reviewed and he included a discussion of the Veteran's medical history and the problems associated with the development and treatment of pressure ulcers. The IME explained that decubitus pressure ulcers were the end result of ischemia and are extremely common in patients with impaired mobility and sensation, such as, paraplegic patients due to their inability to feel and adapt to pressure changes. The IME pointed out that the management of these types of ulcers has not evolved significantly over the past 30 years, though there have been improvements in the prevention of ulcers. He noted that the Veteran was first treated for a decubitus ulcer with debridement and antibiotics in 1971, and that the records showed the wound was healing slowly when he was discharged home. He opined that the Veteran's discharge from the hospital was appropriate, because pressure ulcers are a chronic process that take a significant amount of time to heal, and that as long as there is no evidence of active infection, a patient does not require hospitalization to perform local wound care and allow healing. The IME stated that he agreed completely with the assessment provided by the VA orthopedic surgeon, and opined that there was no evidence of carelessness negligence, lack of proper skill or error in judgment due to VA treatment. The Veteran's ulcers were debrided and allowed to heal either by secondary intention or by multiple methods of closure, including grafts and rotation flaps. The current management of pressure ulcers involves the same principles that were used in the Veteran's treatment, and includes debridement to viable tissue, antibiotics for control of the infection, local wound care and pressure off-loading to the point where this can be done. The IME pointed out that exposure of bone on a deep ulcer predisposes osteomyelitis, and that there was no way to determine, definitively, when the first episode occurred. However, the fact that the Veteran survived over 30 years since the beginning of this problem is an indicator that the Veteran has been adequately cared for within the limitations of what modern medicine can offer. The IME stated that he agreed that the instructions during the Veteran's first operation was not very detailed and did not specify wound care and pressure off-loading, but that it was unlikely to have made a significant difference due to the Veteran's baseline condition. In deciding a claim for VA compensation, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). After review of all the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151. In this case, the Board finds the VA orthopedic surgeon and the IME opinions persuasive and more probative of the nature of the Veteran's decubitus ulcers and current osteomyelitis than the generalized and somewhat factually inaccurate private medical opinion. The VA surgeon and IME opinions provided a detailed discussions of all relevant facts, including the nature of decubitus ulcers in general and with respect to the Veteran's particular situation, considered other possible etiologies, and offered rational and plausible explanations for concluding that the Veteran's decubitus ulcers and current osteomyelitis were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of his VA treatment in the early 1970's. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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.) In contrast, the favorable private medical opinion by Dr. Bash offered few specific facts and essentially no analysis for the conclusory assessment that the Veteran's current osteomyelitis was the result of "sub-optimal" treatment and "poor VA skin care" by VA in the early 1970's. Dr. Bash based his opinion primarily on a notation in the record that the Veteran's decubitus ulcer was "almost healed" when he was discharged home from the hospital in March 1971, without any "special precautions or additional training," and the fact that he had to be readmitted two months later for a recurring ulcer. Without identifying any specific treatment report or offering any explanation or analysis of the evidentiary record, he then went on to state that the Veteran has had recurrent ischial bone problems ever since his first admission in 1971. As to his assertion that the Veteran was not given any information about wound care, the record showed that not only was the Veteran instructed to change his dressing daily when he was expected to be discharged several days prior to the actual date of discharge (the delay was apparently due to the Veteran's problems making home arrangements), but that he was already knowledgeable about wound care, as evidence by his statements at the time of his admission in February 1971, and the fact that he was a trained hospital corpsman (MOS HM-8404) in service. Moreover, the IME stated that any lack in instructions had made no significant difference due to the Veteran's baseline. As pointed out by the IME, the management of pressure ulcers is essentially the same today as when the Veteran was treated in the early 1970's, and has not evolved significantly since then. As the record showed that the Veteran was a trained hospital corpsman knowledgeable about wound care, had been properly caring for his pressure ulcers prior to his VA admission in 1971, and was instructed by VA to change the dressings daily prior to his discharge in March 1971, the Board finds Dr. Bash's comments on this aspect of VA treatment is of no probative value. That is not to say, however, that the Veteran's training as a corpsman, relieved VA of its duty to inform him about proper wound care. Rather, under the circumstances in this case, the record showed that the Veteran was provide adequate information by VA on caring for his pressure wounds upon his release from the VA hospital. As to Dr. Bash's allegation that the Veteran was discharged prematurely with an incompletely healed ulcer wound in 1971, he did not point to a single treatment record or laboratory findings that even remotely suggested that the Veteran's decubitus ulcer was infected or that the healing process was unusual or warranted closer monitoring. In this regard, the Board notes that the IME indicated that the Veteran's discharge was entirely appropriate given his medical condition at the time, and that hospitalization to perform local wound care and allow healing was not necessary if there was no evidence of active infection. As noted above, the medical reports did not reflect any signs or symptoms of infection at the time of hospital discharge. Accordingly, the Board finds that Dr. Bash's assertion that the Veteran's discharge was premature, is of no probative value. As a whole, the Board finds that Dr. Bash's report was general in nature and offered no specific facts or findings to support his conclusion that the Veteran's recurring decubitus ulcers and current osteomyelitis of the left hip was due to "sub-optimal" treatment and "poor VA skin care" by VA during his initial hospitalization in February/March 1971. The evidentiary record showed that the Veteran's initial treatment in 1971 was for a decubitus ulcer on the right ischium. While Dr. Bash reported that the right-side ulcer needed ischial surgery in 1972, the record showed that the Veteran underwent excision and ischial tuberosity on the right side in 1971. Similarly, while Dr. Bash asserted that "the same area" displayed periosteal reaction in 1974, the evidentiary record showed the Veteran's treatment in 1974, was for a decubitus ulcer on the left ischium, and that there were no specific findings for the right ischium at that time. Furthermore, while the record showed that the Veteran was treated for recurring decubitus ulcers on numerous occasions from 1971 to 1974, and again in 1986; the latter treatment indicated that the ulcer was present for one year, the records do not show treatment for any recurring ischial bone problems until 2007. Thus, while Dr. Bash asserted that the Veteran had "recurrent ischial bone problems ever since his first admission in 1971," he has not offered any explanation for absence of any treatment for ischial bone problems for more than two decades from 1986 until his recent treatment in 2007, nor did he point to any specific clinical or laboratory findings to support his assertion. In light of the discussion above, the Board finds that the private opinion is little probative value and declines to assign it any evidentiary weight. The Board notes the VA January 2009 opinion in which the examiner stated that it was his medical opinion that it was less likely than not (less than 50/50) that the Veteran's left hip disability is due to or a result of carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA. The Board finds, however, that this opinion's rationale was not as probative as the 2011 VA opinion and the 2013 IME opinion. As such, the Board has given it limited probative value. Under the circumstances in this case, the Board finds that the probative weight of the competent evidence does not show that the Veteran's recurring decubitus ulcers and current osteomyelitis of the left hip was due to or proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or by an event not reasonably foreseeable in connection with VA treatment. Consequently, the legal requirements are not met for compensation under 38 U.S.C.A. § 1151 for disability claimed as due to VA medical treatment. Accordingly, the claim is denied. ORDER Entitlement to compensation benefits for chronic decubitus ulcers and osteomyelitis of the left hip pursuant to the provisions of 38 U.S.C.A § 1151, is denied. REMAND Hearing Loss & Tinnitus The Veteran's service awards indicate he is a combat Veteran. The Veteran believes that service connection should be established for bilateral defective hearing and tinnitus due to his exposure to acoustic trauma from helicopter engine noise and incoming mortar and artillery rounds during his service in Vietnam. The Veteran reports being at the Battle of Khe Sahn in Vietnam. At the hearing in May 2012, the Veteran testified that he never really noticed any hearing problems until recently, and that other people brought it to his attention and encouraged him to get an examination. He testified that his tinnitus comes and goes, and said that it began sometime in the early 1980's. The Veteran's STRs showed no complaints, treatment, abnormalities or diagnosis for any ear or hearing problems or tinnitus during service. The Veteran's enlistment and separation examinations in September 1966 and September 1968, respectively, showed his ears were normal and that his hearing acuity for whispered and spoken voice was 15/15, bilaterally. When examined by VA in February 2011, the Veteran was noted to have hearing loss meeting VA standards. The examiner acknowledged the Veteran's combat service and the noise associated with such service, including explosions, mortars, artillery and small arm fires. He also noted the Veteran's history of going deer hunting before, as well as after service, even though he was a paraplegic. He further noted that the Veteran's hearing of 15/15 on enlistment and exit service physicals and that there were no service medical records related to ear or hearing problems. He reported that the Veteran's hearing problems were described as a recent occurrence and not in connection with the military. The examiner then concluded that it was not as likely as not that the Veteran's hearing loss was related to his military duty. The examiner reported that the Veteran noted that the onset of his tinnitus was years ago and that there was no specific onset. The examiner opined that given that the Veteran exited [service] with 15/15 hearing and no apparent complaints of tinnitus and that he had post military noise [exposure] from hunting that it was not as likely as not that the tinnitus is related to military duty. The Board finds that the opinions are not adequate. In this regard, the examiner does not clearly provide a sound basis for his opinion. His rationale included noting that the Veteran did not have hearing loss and tinnitus in service and that he hunted after service. The Board notes that the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Because this aspect of the applicable law and regulations does not appear to have been contemplated in the VA examination report, a remand for a new examination and opinion is required. The Board observes that the Veteran was given a whispered test on entrance and exit service examinations and therefore it would be difficult to ascertain whether there was any true hearing loss increase, even if it would not meet the standard for hearing loss for VA purposes. To fulfill VA's duty to assist, an opinion is needed which specifically provides a rationale as to why acoustic trauma in service could not cause hearing loss and tinnitus many years after service. This should include an explanation as to the significance of the Veteran's history of hunting after service. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all medical facilities that have treated him for bilateral hearing loss and tinnitus since service. The RO/AMC should take appropriate steps to obtain all identified records. Proper notification should be sent to the Veteran for any records that cannot be obtained. 2. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his current hearing loss and tinnitus. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran, to include his reports of in-service and post-service noise exposure. All tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should express an opinion as to whether it is at least as likely as not (at least a 50 percent probability or more) that any hearing loss and/or tinnitus disability was incurred in service or is related to service, including to any in-service acoustic trauma such as helicopter engine noise and incoming mortar and artillery rounds during his service in Vietnam. If it is determined that hearing loss is related to the Veteran's military service, the examiner should address whether it is at least as likely as not (at least a 50-50 percent probability) that any diagnosed tinnitus was caused or aggravated (i.e., permanently worsened, as opposed to a temporary or intermittent flare-up of symptomatology which returns to baseline level of disability) by the Veteran's hearing loss disability. The examiner should explain his/her answer and, if applicable, attempt to identify baseline level of severity of the tinnitus before aggravation and discuss the aspect of the disability which is due to aggravation. Any opinion expressed must be accompanied by a complete rationale. This rationale should specifically address the significance of the Veteran's noise exposure in service as it relates to his diagnosed hearing loss and tinnitus. 3. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs