Citation Nr: 1548132	
Decision Date: 11/16/15    Archive Date: 11/25/15

DOCKET NO.  09-00 138A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Whether new and material evidence was submitted to reopen a claim for service connection for gastroesophageal reflux disorder (GERD) and other gastrointestinal disorders, for accrued benefits purposes.

2. Entitlement to service connection for gastroesophageal reflux disorder (GERD), including as secondary to generalized anxiety disorder, for accrued benefits purposes.

3. Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes.

4. Entitlement to service connection for tinnitus, for accrued benefits purposes.

5. Entitlement to service connection and/or compensation under 38 U.S.C. § 1151 for the cause of the Veteran's death, claimed as related to VA medical treatment.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from August 1955 to August 1956. He died in October 2011. The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeals from rating decisions by Regional Offices (ROs) of the Department of Veterans Affairs (VA). In a June 2003 rating decision, an RO denied the Veteran's claim for service connection for GERD and other gastrointestinal disorders. The Veteran appealed that denial to the Board. In a September 2005 decision, the Board denied service connection for GERD and other gastrointestinal disorders.

In February 2006, the Veteran submitted a claim for service connection for GERD as secondary to his service-connected generalized anxiety disorder. In a November 2006 rating decision, an RO denied that claim. The Veteran appealed that decision. In the course of the appeal, he submitted contentions and evidence regarding claims both of secondary service connection (a relationship between generalized anxiety disorder and GERD) and of direct service connection (a relationship between digestive system problems during service and digestive system problems after service).

In a November 2009 rating decision, an RO denied the Veteran's claim for service connection for hearing loss and tinnitus.

The appellant has continued the claims for service connection for GERD, hearing loss, and tinnitus that the Veteran had pending on appeal; she is seeking accrued benefits based on those claims.

The appellant also submitted a claim for service connection and/or compensation under 38 U.S.C. § 1151 for the cause of the Veteran's death, claimed as related to VA medical treatment. In a May 2012 rating decision, an RO denied that claim. The appellant appealed that denial.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of service connection and/or compensation under 38 U.S.C. § 1151 for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. A September 2005 Board decision denied service connection for GERD and other gastrointestinal disorders.

2. Evidence received since the September 2005 Board decision includes evidence showing a relationship between service-connected psychiatric disability and post-service digestive disorders.

3. The Veteran's anxiety disorder caused worsening of his GERD.

4. The Veteran's bilateral hearing loss did not have onset during service or earlier than many years after service, and is not related to his noise exposure during service.

5. The Veteran's tinnitus did not have onset during service or earlier than many years after service, and is not related to his noise exposure during service.


CONCLUSIONS OF LAW

1. The September 2005 Board decision that denied service connection for GERD and other gastrointestinal disorders is final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015).

2. Evidence received since the September 2005 Board decision is new and material to a claim for service connection for GERD and other gastrointestinal disorders; that claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
accrued

3. The Veteran's service-connected generalized anxiety disorder aggravated his GERD; the appellant is entitled to accrued benefits due and unpaid to the Veteran based on the service-connected GERD. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.310, 3.1000(a) (2015).


4. The Veteran's bilateral hearing loss was not incurred or aggravated in service, and may not be presumed to have been incurred in service; therefore, no benefits based on claimed service connection for bilateral hearing loss were accrued for payment to a survivor. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385, 3.1000(a) (2015).

5. The Veteran's tinnitus was not incurred or aggravated in service; therefore, no benefits based on claimed service connection for tinnitus were accrued for payment to a survivor. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121; 38 C.F.R. §§ 3.303, 3.1000(a).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). 

VA provided the Veteran and the appellant notice in letters issued in May 2003, March 2006, May 2008, April 2009, December 2011, and February 2012. In those letters, VA advised the Veteran and the appellant what information was needed to substantiate claims for service connection and survivor's benefits. VA also informed the Veteran and the appellant how VA assigns disability ratings and effective dates.

The claims file contains service medical records, post-service medical records, and reports of VA examinations, and VA medical opinions. The treatment records, examination reports, and opinions provide relevant information that is sufficient to address the issues that the Board is deciding at this time.

The Board finds that the Veteran and the appellant were notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which they might obtain such evidence, and the allocation of responsibilities between the claimants and VA in obtaining such evidence. The Veteran and the appellant actively participated in the claims process by providing evidence and argument. Thus, they were provided with a meaningful opportunity to participate in the claims process, and they have done so.

GERD and Other Gastrointestinal Disorders

The Veteran contended, and the appellant continues to contend, that the Veteran's post-service GERD was related to gastrointestinal disorders he had during service, or was caused or aggravated by his service-connected generalized anxiety disorder.

In April 2003, the Veteran sought service connection for GERD and other gastrointestinal disorders. In a June 2003 rating decision, the RO denied service connection for GERD and other gastrointestinal disorders. The Veteran appealed that denial to the Board. In a September 2005 decision, the Board denied service connection for GERD and other gastrointestinal disorders.

Subsequently, in February 2006, the Veteran submitted a claim for service connection for GERD as secondary to his service-connected generalized anxiety disorder. In a November 2006 rating decision, an RO denied the Veteran's claim for service connection for GERD as secondary to generalized anxiety disorder. The Veteran appealed that decision. In the course of the appeal of that decision, he submitted contentions and evidence regarding his claim that his GERD is related to his generalized anxiety disorder, and also submitted contentions and evidence that his GERD began during his service. His contentions relating GERD to service constituted a request to reopen a service connection claim following the Board's September 2005 denial.

After the Veteran's death, the appellant filed a claim for VA benefits as his surviving spouse. Upon the death of an individual receiving VA benefits payments, certain persons, including the surviving spouse, shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death, under existing ratings or decisions, or based on evidence in the file at the date of death, which were due and unpaid. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). The appellant is pursuing, for purposes of such accrued benefits, the Veteran's pending appeals regarding service connection for GERD.

When the Board disallows a claim, the claim may not be reopened and allowed unless new and material evidence is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).


Service connection may be established, on a direct basis, for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The Court has explained that, in general, direct service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted, on a secondary basis, for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b).

The evidence that was of record at the time of the September 2005 Board decision included medical records that showed gastrointestinal problems during and after service. The evidence that was added to the file after September 2005 included the new contentions from the Veteran and later medical records. From 2006, the Veteran contended that his generalized anxiety disorder had caused or aggravated his GERD. VA treatment records, including some from later than September 2005, address a possible relationship between psychological stress and digestive disorders. That claimed relationship is an unestablished fact necessary to substantiate a claim for service connection for digestive disorders. The new evidence thus is material to the claim. As new and material evidence was added, the Board grants reopening of the claim for service connection for GERD and other gastrointestinal disorders.

Having reopened the claim, the Board must consider it on its merits. In addressing a service connection claim on the merits, the Board must assess the credibility and weight of all the evidence, including 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 

claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

On an August 1954 examination of the Veteran for entrance into service, the examiner noted dilated inguinal rings, and a history of appendectomy, but did not find any other gastrointestinal abnormality. In April and May 1955, the Veteran had inpatient treatment to address digestive problems. He reported that for three months he had been experiencing vomiting after meals. He was admitted for treatment, with a diagnosis of possible intestinal obstruction. X-rays did not show evidence of intestinal obstruction or ulcer crater, but showed slight irritation of the duodenum. A treating clinician provided a diagnosis of functional pylorospasm. On the report of a May 1956 examination of the Veteran for separation from service, the examiner checked normal for the condition of his abdomen and viscera.

After service, the Veteran had private treatment in August 1957 for stomach pain. The treating physician prescribed antacid medication. In private treatment in 1964, symptoms included chest pain and treatment included antacids. In private treatment in 1965, The Veteran was treated for gall bladder problems, including chronic cholecystitis and cholelithiasis. He underwent cholecystectomy. In December 1966, gastrointestinal (GI) series x-rays were negative for problems. He underwent sigmoidoscopy in 1968.

In February 1970, the Veteran had VA treatment to address chest pain accompanied by upset stomach. He related that during service he had pain and other problems in his stomach and chest.

Private treatment of the Veteran addressed an umbilical hernia in 1979 and a ventral hernia in 1980. In 1984, he reported abdominal discomfort, bloating, and loose stools. The treating physician diagnosed spastic colon syndrome, and prescribed medication. The Veteran had another ventral hernia repair in 1985.

In private treatment in April 1986, imaging showed a hiatal hernia. Subsequent imaging continued to show a hiatal hernia. Imaging from 1991 forward also showed gastritis. Treatment records from 1987 forward reflect the Veteran's reports of stomach pain and reflux. Physicians diagnosed and treated GERD from 1988 forward. In May 1989, a physician addressing the Veteran's chest pain found that he had psychogenic pain disorder and psychological factors affecting his physical condition. From 1989 forward, clinicians diagnosed the Veteran with and treated him for chronic anxiety and recurrent depression.

In a 1989 statement, the Veteran wrote that during service he had nausea, upset stomach, and abdominal pain, and that doctors could not identify the cause of the symptoms. He reported that his present medications included the anti-anxiety medication Xanax.

In a January 1990 hearing at an RO, the Veteran reported that several times during service he had acidic stomach and sharp stomach cramps. He related that he continued to have acid stomach after service. He stated that during the year after separation from service he went to a private doctor several times for acid stomach.

Records of VA and private treatment from 2001 through 2011 reflect ongoing diagnoses of hiatal hernia and GERD, treated with medication. Ongoing psychiatric problems also were noted. In VA treatment in March 2003, Z. S., M.D., stated that the Veteran's GERD might be worsening. Dr. S. also indicated that the Veteran had diarrhea that might be due to viral gastroenteritis, stress from chest pain, or his home bowel regimen.

In an April 2003 statement, the Veteran asserted that he began to have a nervous stomach and other gastrointestinal disorders during service, and that he continued to have such problems through the present.

On VA examination in May 2003, the examiner noted records of treatment of the Veteran for nausea and vomiting during service in 1955. The examiner expressed the opinion that the episode treated during service did not have any residuals.

In June 2003, the appellant stated that, during the Veteran's service, he wrote to her that he had sharp stomach pain and vomiting, and was hospitalized to address those problems. She stated that he continued to have stomach problems after service. She indicated that over the years, through the present, he had continued to have heartburn and a sour and nervous stomach, which were treated with various medications.

In a December 2003 VA gastroenterology consultation, it was noted that the Veteran was on medication for a long history of GERD. In February 2004, endoscopy showed hiatal hernia and antral gastritis.

In a February 2004 VA mental disorders examination, the Veteran reported ongoing nervousness, worry, and tension. He indicated that his episodes of gastrointestinal symptoms led him to curtail his social interactions. The examiner found that the Veteran's gastrointestinal problems likely worsened his psychological functioning. In a March 2004 VA medical examination, the Veteran reported having reflux after meals and at night, and dysphagia once or twice a week.

In an April 2004 rating decision, an RO granted service connection for the Veteran's psychiatric disability, described as generalized anxiety disorder. 

In a VA gastroenterology consultation in November 2004, the Veteran reported a 30-year history of nervous stomach, with present symptoms of epigastric pains and cramps. The gastroenterologist, C. J. F., M.D., stated that he could not explain the Veteran's abdominal symptoms satisfactorily. Dr. F. indicated that it was possible that the Veteran's digestive disorders were a multifactorial problem, involving drug reactions, diabetes, depression, hiatal hernia, previous surgeries, and intestinal ischemia.

In a VA primary care visit in January 2006, the Veteran indicated that he had GERD symptoms every time he felt anxious. Treating physician S. V., M.D., agreed that his anxiety might be contributing to his increasing GERD symptoms. Dr. V. provided a note confirming that opinion.

In a February 2006 claim, the Veteran contended that he had GERD that was caused or worsened by his service-connected psychiatric problems.

In October 2006, the Veteran had a VA examination to address the question as to whether his generalized anxiety disorder had caused or aggravated his GERD. The examining physician, D. M. M., D.O., reported having reviewed the Veteran's claims file. Dr. M. noted that the Veteran had a long history of generalized anxiety disorder, and a long history of symptoms consistent with GERD. He noted that the Veteran had been diagnosed with a hiatal hernia. Dr. M. expressed the opinion that it is less likely than not that the Veteran's generalized anxiety disorder caused or had aggravated his GERD. He explained that the Veteran had a hiatal hernia that caused his GERD, and that the medical literature did not support hiatal hernia being caused by any type of psychiatric illness.

In his December 2006 notice of disagreement, the Veteran stated that his treating physician at a VA facility had told him that his gastrointestinal problems might be aggravated or even caused by his anxiety condition. He also noted that he had received VA inpatient treatment for gastrointestinal problems within a year after his separation from service.

The Veteran had stomach symptoms during service. Medical records reflect that those symptoms resolved during service, however. The medical records do not help to show any chronic digestive system disorder soon after service or for at least several years after service. Thus, the preponderance of the evidence indicates that he did not have a stomach or other digestive disorder during service that continued after service. Therefore, direct service connection, based on incurrence in service, is not warranted.

After service, the Veteran had diagnoses of GERD and of anxiety disorder over similar or overlapping periods, particularly from the late 1980s forward. The medical records do not indicate that any physician suggested that his anxiety disorder caused his GERD. In fact, Dr. M. opined that such causation was less likely than not. The preponderance of the evidence is against such causation.

The statements of Drs. S., F., and V. support the contention that the Veteran's mental disorders, including anxiety, aggravated his GERD. Each of those physicians treated the Veteran. Their direct interactions with him provided them knowledge that adds to the value of their opinions. Dr. M.'s examination of the Veteran informed his opinion against the likelihood that his anxiety disorder aggravated his GERD. The explanation Dr. M. provided, however, addressed mainly causation and not aggravation. When all of the opinions are considered, the evidence that the anxiety disorder aggravated the GERD is not outweighed by the evidence against that relationship. Resolving reasonable doubt in the claimant's favor, the Board concludes that the anxiety disorder aggravated the GERD, and grants service connection on that basis. As service connection is granted, the Veteran was entitled to disability compensation based on that service-connected disorder. The appellant, as his surviving spouse, is entitled to accrued benefits based on the disability compensation that is due as a result of this decision and is unpaid.

Hearing Loss and Tinnitus

The Veteran contended, and the appellant continues to contend, that the Veteran had hearing loss and tinnitus as a result of exposure to artillery noise during service. 

Service connection for certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of a veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160.

In February 2009, the Veteran submitted a claim for service connection for hearing loss and tinnitus. He reported that during service he had duties as a field artilleryman and as a tank crewmember. He stated that he was exposed to noise from the firing of Howitzers and machine guns. He asserted that he did not receive proper ear protection. He reported that he began to experience tinnitus during service.

The Veteran's service discharge document indicates that his specialty was basic field artillery, and that his last duty assignment was as a truck driver with a field artillery unit at Fort Hood, Texas. Thus, his duties during service were reasonably consistent with the noise exposure that he reported in his claim. On his service entrance examination in August 1954 and his service separation examination in May 1956, no audiometric testing was performed. Each of those examinations used whispered voice testing, which measured his hearing as 15/15.

The claims file contains some records of post-service private and VA medical treatment of the Veteran. The assembled records of treatment in 1956 and 1957, the year following his separation from service, do not address his hearing. Thus, there is no basis to presume service connection for a hearing loss disability.

Records of private treatment of the Veteran in 1960 through 1997 contain no mention of hearing issues or tinnitus. During VA inpatient treatment of the Veteran in February and March 1970 to address pain in his abdomen and chest, a treating clinician noted that he had no hearing impairment. VA treatment records from 1999 through 2001 contain no mention of hearing issues or tinnitus.

In March 2002, the Veteran had a VA otolaryngology consultation. It was noted that he had a history of hearing loss and occasional light-headedness. The treating physician found that the Veteran had bilateral sensorineural hearing loss, and that his dysequilibrium was likely not related to his ears. In May 2002, he underwent further hearing testing, and was medically cleared for hearing aids.

In VA treatment in October 2002, the Veteran reported difficultly hearing and he noted ringing in his ears. In August 2003, the treating clinician indicated that the Veteran had no hearing loss, earache, ear discharge, or tinnitus. In February 2005, the Veteran reported right ear pain and drainage. He related that sounds were muffled, and that he heard the sound of air blowing. The treating physician found otitis externa and otitis media. In July 2005, a VA audiologist found that the Veteran's hearing had worsened slightly since 2003. In October 2007, a treating clinician noted that the Veteran had hearing loss and wore bilateral hearing aids. In June 2008, a clinician adjusted the recommendations for hearing aids and telephone equipment for the Veteran.

On VA audiology examination in April 2009, the Veteran reported that during service he was exposed to artillery noise. He indicated that after service he was exposed to noise as a factory worker, welder, millwright, and mechanic. He reported that, when he was in his early twenties. he had bilateral middle ear infections, and underwent surgeries placing tubes in both ears. He stated that presently he had difficulty understanding speech. He related experiencing constant tinnitus. The tinnitus was described as being of unknown onset and etiology.

On audiometric testing, in each ear, the auditory thresholds for each of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz was 40 decibels or greater. The speech recognition scores using the Maryland CNC Test were 84 percent in the left ear and 88 percent in the right ear. The examining audiologist diagnosed bilateral sensorineural hearing loss. The Veteran had bilateral hearing loss disability at that time.

After reviewing the Veteran's claims file, the examiner noted that the whispered voice testing performed during the Veteran's service was, by itself, insufficient for rating purposes. He stated that the 15/15 finding nonetheless suggested normal hearing at that time. He commented that the absence of recorded complaints during service of hearing difficulty or tinnitus also suggested the absence of hearing difficulty or tinnitus during service. He noted that current research did not support delayed onset of hearing loss, that is, the onset of hearing loss due to acoustic trauma long after that trauma. Based on all of those factors, the examiner expressed the opinion that it was less likely than not that the Veteran's hearing loss and tinnitus were connected to his service.

Medical evidence from the early 2000s forward establishes that the Veteran had disabling hearing loss. The Veteran credibly reported noise exposure during service. There is little evidence, however, as to the time of onset of his hearing loss. The whispered voice test used to measure his hearing during service is of limited value. There is no record or contention, however, that he reported hearing difficulty during service, or after service in the 1950s through 1990s. There is not even any contention as to when he began to notice difficulty hearing. The 2009 VA examiner provided a clear, logical, and persuasive explanation, based on the available history and evidence, of his opinion that it is less likely than not that the hearing loss found after 2000 was incurred in service or developed as a result of the noise exposure during service. The preponderance of the evidence is against service connection for the Veteran's hearing loss. His claim for service connection for bilateral hearing loss therefore does not form a basis for accrued benefits for the appellant.

The Veteran credibly reported noise exposure during service, but there is no indication that while he was in service he reported tinnitus. Records of medical treatment after service in the 1950s through 1990s also contain no reports of tinnitus. In the early 2000s, there were inconsistent reports as to whether he experienced tinnitus. From 2009 forward, he consistently reported having tinnitus. In his 2009 claim, he stated that he began to experience tinnitus during service. The absence of reports of tinnitus during service and through considerable medical treatment over many years after service, however, tends to undermine the 2009 account. On the question of whether he had tinnitus during service or soon after service, the contemporaneous records are more likely to be accurate than the recollection made many years later. Considered in combination with the long silence in the contemporaneous records, the 2009 account of tinnitus from service forward is not credible. The VA examiner persuasively explained his opinion, based on the lack of earlier reports of tinnitus, against a likelihood that the Veteran's tinnitus had onset during service. The greater persuasive weight of the evidence is against onset of tinnitus in service, and thus against service connection for tinnitus. The Veteran's claim for service connection for tinnitus therefore does not form a basis for accrued benefits for the appellant.


ORDER

A claim for service connection for GERD and other gastrointestinal disorders, for accrued benefits purposes, is reopened.

Entitlement to service connection for GERD, for accrued benefits purposes, is granted.

Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes, is denied.

Entitlement to service connection for tinnitus, for accrued benefits purposes, is denied.


REMAND

The appellant contends that the Veteran's death in October 2011 due to intracranial hemorrhage was related to fault in treatment that he received in 2011 at VA medical facilities, specifically, the VA St. Louis (Missouri) Health Care System, John Cochran Division (JC Division), and the VA St. Louis Health Care System, Jefferson Barracks Division (JB Division). Treatment at the JB Division in October 2011 resulted in transfer for emergency treatment to St. Anthony's Medical Center in St. Louis. The claims file contains some VA and private treatment records, and an April 2012 VA medical opinion, but additional evidence is needed to address remaining questions. The Board is remanding the issue to seek additional medical records and additional medical review and opinion.

The Veteran reportedly underwent right total knee replacement surgery in 2006 and left total knee replacement surgery in 2007. In 2011, he was seen at the VA JC Division to address bilateral knee pain. In July 2011, he underwent surgery at the JC Division to resurface the right patella, and had rehabilitation at the JB Division. In September 2011, pain and swelling developed his right knee. In treatment at the JC Division, Staph infection was found in his right knee. In October 2011, he underwent emergency surgery on that knee, with irrigation, debridement, and liner exchange. He was transferred to the JB division for rehabilitation. While in treatment at the JB division, he reported headaches. On October 24, 2011, a physician found that the Veteran was unresponsive, and transferred him for emergency treatment at St. Anthony's. At St. Anthony's, CT scan showed a large intracranial hemorrhage. The intracranial bleed was inoperable and not survivable, and the Veteran died that day at St. Anthony's.

The appellant contends that the infection in the Veteran's knee found in October 2011 developed as a result of fault in VA care in July 2011. She also contends that insufficient attention to headaches that the Veteran reported in VA care in October 2011 may place the care at some fault for the development of the brain bleed.

In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312 (2015). When it is determined that a veteran's death was service connected, his surviving spouse is generally entitled to dependency and indemnity compensation. 38 U.S.C.A. § 101 (West 2014). 

Under certain circumstances, VA provides compensation for death or additional disability resulting from VA medical treatment in the same manner as if such death or additional disability were service-connected. For a claimant to qualify for such compensation, the death or additional disability must not be the result of the veteran's willful misconduct. When death or additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015).

The RO provided the claims file to a VA physician to review and provide an opinion about the claim. In April 2012, the reviewing physician discussed the medical records. The reviewer expressed the opinion that it is not at least as likely as not that the Veteran died as a result of fault in the VA medical care. The reviewer went on to opine that his death is attributable to an event that was not reasonably foreseeable. 

It is not clear that the records in the claims file include the complete records of 2011 treatment of the Veteran at the JC and JB divisions. The Board is remanding the issue to obtain the complete records.

The physician of the 2012 VA medical opinion did not have the benefit of any additional medical records that may be obtained. In addition, that opinion was fairly brief, and left relevant questions. It did not explicitly address the appellant's direct and implied contentions that infection in the right knee was due to fault in VA care, that the right knee infection led to the intracranial bleed, or that fault in VA care following the Veteran's report of headaches led or contributed to the intracranial bleed. On the question of whether the intracranial hemorrhage was an event not reasonably foreseeable, the opinion did not discuss whether a reasonable health care provider would have considered the infection an ordinary risk of the July 2011 knee surgery or the intracranial bleeding an ordinary risk of the October 2011 knee surgery and rehabilitation. The Board is remanding the issue for a new file review and opinion from a VA physician to address those questions in detail.

Accordingly, the case is REMANDED for the following action:

1. Obtain complete records of all inpatient and outpatient treatment of the Veteran in 2011 at the VA St. Louis (Missouri) Health Care System, John Cochran Division (JC Division) and the VA St. Louis Health Care System, Jefferson Barracks Division (JB Division).

2. Provide the expanded claims file to a VA physician for review and opinion with respect to the claim of a relationship between fault or unforeseeable events in VA treatment and the cause of the Veteran's death. Ask the reviewer to review the file, including the VA and private medical records, and provide clear, detailed, and thoroughly explained opinions addressing the following questions:

A. Is it at least as likely as not that fault in VA surgery and care in July 2011 caused or contributed to causing the right knee infection found in October 2011?

B. Is it at least as likely as not that the right knee infection caused or contributed to causing the intracranial bleeding?

C. Is it at least as likely as not that fault in VA care in October 2011 in response to reports of headaches caused, contributed to causing, or failed to prevent, the intracranial bleeding?

D. Would a reasonable health care provider have considered the knee infection to be an ordinary risk of the July 2011 knee surgery?

E. Would a reasonable health care provider have considered the intracranial bleeding to be an ordinary risk of the October 2011 knee surgery and rehabilitation?

3. Thereafter, review the expanded record and reconsider the remanded claim. If the claim remains denied, issue a supplemental statement of the case and afford the appellant and her representative an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order.

The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The appellant has the right to submit additional evidence and argument on that matter. 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 2014).




______________________________________________
MATTHEW D. TENNER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs