Citation Nr: 1631599 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 14-21 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic infarction, right testicle. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty for about 13 years and three months, to include the period from June 1983 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs). In December 2012, the RO in Seattle, Washington, denied a claim for service connection for tinnitus. In November 2013, the RO Cheyenne, Wyoming, denied a claim for compensation under 38 U.S.C.A. § 1151 for chronic infarction, right testicle. Jurisdiction over the Veteran's claims file has been returned to the RO in Seattle, Washington. In November 2015, the Veteran presented sworn testimony during a video conference hearing in Seattle, Washington, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's tinnitus is related to his service. 2. Additional disability was not caused by VA surgical or hospital care. CONCLUSIONS OF LAW 1. The Veteran's tinnitus is related to his service. 38 U.S.C.A. §§ 1110, 1131, 5108 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for compensation under the provisions of 38 U.S.C.A. §1151 for additional disability of the right testicle have not been met. 38 U.S.C.A. § 1151 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.361, 17.32 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran argues that service connection is warranted for tinnitus. He argues that during service, he was exposed to loud noise from working in the boiler rooms aboard ship, with duties working around reduction gear, boilers, and major fan systems, without use of hearing protection. In a written statement, the Veteran stated that he believed that his tinnitus started prior to 1996 (i.e., when first noted in VA progress notes), and that the date of onset was difficult for him to estimate because he just got used to the ringing in his ears. See statement in support of claim (VA Form 21-4138), received in February 2014. Service connection may be granted for 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. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Tinnitus can be service connected on such a basis. The Veteran's discharge (DD Form 214) shows that his primary specialty was "ST-0000" (not otherwise described). His discharge indicates that he had two years and seven months of sea service. The Veteran's service treatment records show that beginning in 1985, he received treatment for bilateral serous otitis, diminished hearing in his left ear, and a bleeding left ear, with a notation of a ruptured eardrum. His diagnoses included chronic left otitis media. On two occasions in 1986, he underwent PE (pressure equalizer) tube implantation, with treatment for complaints of left ear pain, drainage, and dizziness. Multiple reports dated beginning in 1985 note that his rate was "BT-1" (boiler technician). A report, dated in July 1987, notes that he worked in the engineering division. A December 1987 Medical Board Report notes complaints of diminished hearing. As for the post-active duty medical evidence, a March 1996 VA progress note indicates that he had a permanent tube in his left ear, and that he complained of decreased hearing, and occasional tinnitus. A January 1997 VA examination report notes complaints of bilateral tinnitus two to three times per week, with an onset in 1996. On examination, intermittent bilateral tinnitus was found. A February 1997 report states that tinnitus is not a problem. A VA hearing loss and tinnitus disability benefits questionnaire (DBQ), dated in May 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes the following: the Veteran had been a boiler technician in the Navy, with noise exposure from equipment such as boiler rooms, and steam valves. He has a history of left middle ear infections and surgeries. The reported onset date of tinnitus was 2009, "[D]ecades after separation from the service. Reported to occur 5-10 times daily and last "minutes." The examiner indicated that it is less likely as not (less than a 50 percent probability) that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner explained that the onset of the Veteran's tinnitus was reported to be in the past three years only, decades after separation from service. The examiner indicated that there was no mention of tinnitus located in C-file or on any previous ratings decisions." The Board finds that service connection for tinnitus is warranted. Although the Board has considered the May 2012 VA examiner's opinion, the examiner's opinion is based upon a history of tinnitus beginning no earlier than 2009, in the "past three years only." This is clearly incorrect, as VA progress notes show findings of tinnitus over 13 years earlier, in 1996. In this regard, the Veteran has stated that he is unsure of the date of onset of his symptoms. His claimed exposure to loud noise from machinery in boiler rooms is consistent with the circumstances, conditions, and hardships of his service, and is credible. See 38 U.S.C.A. § 1154(b) (West 2014 & Supp. 2015). In addition, the VA examiner's opinion does not discuss the possibility that his service-connected disabilities, which include left ear otitis media with perforated eardrum, and left ear hearing loss, to include a history of surgery and placement of a permanent PE tube in his left ear, may have caused or aggravated his tinnitus. See 38 C.F.R. § 3.310; Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed. Cir. 2000). Thus the Board is unable to find that this opinion is adequately explained such that it warrants significant probative value. Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no other competent opinion of record that weighs against the claim. The Board therefore finds that the evidence is at least in equipoise as to whether the Veteran's currently shown tinnitus is related to his service, or to a service-connected disability, and that affording the Veteran the benefit of all doubt, that service connection for tinnitus is warranted. As the Board has granted the claim for tinnitus in full, any failure of VA in its duty to assist could be no more than harmless error, and the Veterans Claims Assistance Act of 2000 need not be further discussed. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Compensation under 38 U.S.C.A. § 1151 The Veteran's claim is based on a February 2012 fee-basis bilateral hernia repair surgery performed at the Washington Medical Center, a private facility, through the Portland VA Medical Center. Thereafter, he reported having discomfort and soreness. About eight months following his surgery, he was found to have a right testicular infarction. A November 2012 VA progress note includes a notation that the Veteran's right testicle appeared to have infarcted, meaning that the blood supply to the testicle was sufficiently impaired that the testicle was damaged and had become shrunken and scarred. Subsequently-dated VA progress notes include notations of testicular infarction, right, secondary to inguinal hernia repair. See e.g., VA progress note, dated in April 2013. The Veteran has argued, in part, that the informed consent procedures were not adhered to. Service connection is currently in effect for disabilities that include a ventral hernia, postoperative. In a VA medical opinion, dated in March 2014, a VA physician stated that there was no relationship between the Veteran's service-connected ventral hernia and his (nonservice-connected) inguinal hernia, noting that these two hernia conditions are in two different anatomical locations and that they "are not related to each other in any way." The physician concluded that the Veteran's "right testicle infarction or hydrocele" was not due to or permanently aggravated by his service-connected ventral hernia, stating that his ventral and inguinal hernias are separate anatomical and pathological conditions, and that the Veteran's ventral hernia has no impact at all on the testicular infarction or hydrocele. The physician conceded that the Veteran's right testicular infarction was at least as likely a proximal result of his inguinal surgery, and that there had been an increase in disability. However, she concluded that there was no evidence to support a claim that the care provided was less than reasonable, or below the standard of care, explaining that injury to vascular and/or neurologic structures in the operating field is unfortunate, but that is an ordinary risk associated with surgery. She stated that informed consent was documented in the pre-op visit note. Under applicable law, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2014 & Supp. 2015); 38 C.F.R. § 3.358(a) (2015). To be awarded compensation under section 1151, a veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. See also VAOPGCPREC 40-97, 63 Fed. Reg. 31,262 (1998). In order for additional disability to be compensable, it must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005). The additional disability must have been the result of injury flowing directly from the actual provision of care, treatment, or examination furnished by VA. Loving, 19 Vet. App. at 101. Under 38 C.F.R. § 3.361(e)(1), a Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e)(2) (2015). Under 38 C.F.R. § 3.361(f) (2015), activities that are not hospital care, medical or surgical treatment or examination by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. The Board finds that the claim must be denied. Under the current version of § 1151, a claim cannot be based on procedures performed at a private facility even if those procedures were performed under contract with VA (i.e. fee basis care). Such care is specifically excluded from consideration under 38 U.S.C.A. § 1151 (for claims filed after October 1, 1997). See 38 C.F.R. § 3.361(f)(1). There is no evidence that VA had any jurisdiction or supervision over the Washington Medical Center. Therefore, the type of fee-basis treatment the Veteran received under 38 U.S.C.A. § 1703 is specifically excluded from consideration under 38 U.S.C.A. § 1151, as the treatment was not in a VA facility or by a VA employee. Id.; Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). Because the February 2012 surgery was not conducted by a VA employee or in a VA facility under the regulatory definition, compensation under 38 U.S.C.A. § 1151(a) is unavailable for any additional disability caused by the February 2012 inguinal repair surgery, whether or not it was proximately due to fault or negligence of the care providers, or by an event not reasonably foreseeable. As the February 2012 inguinal hernia repair surgery was performed by a private facility, by non-VA surgeons, it is not considered to be care provided by VA. Therefore, any additional disability potentially resulting from this surgery does not qualify for benefits under 38 U.S.C.A. § 1151. The Veteran is not shown to have caused additional disability due to VA surgical care or treatment, and the weight of the evidence is against a finding that there was any fault or negligence on the part of VA, or the occurrence of an event not reasonably foreseeable associated with VA care. For the foregoing reasons, the Board finds that the claim for compensation under 38 U.S.C.A. § 1151 for chronic infarction, right testicle, must be denied. The Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2014 & Supp. 2015); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Court has held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). As such, the Veteran's claim for compensation under 38 U.S.C. § 1151 for chronic infarction, right testicle, must be denied The Board finds that no further action is necessary to comply with VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103(a), 5103A (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015). The facts in this case are not in dispute and the appeal must be denied as a matter of law. Thus, any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). ORDER Service connection for tinnitus is granted. Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic infarction, right testicle, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs