Citation Nr: 1757779 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-04 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 (2012) for traumatic brain injury (TBI) with residuals, including headaches, memory loss, sleep disturbance, inability to concentrate, and stress, as residuals of a fall at a VA facility in October 2005. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Veteran, J.R and D.C. ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from January 1975 to March 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2006 and February 2008 rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2010, the Veteran and witnesses testified before a Decision Review Officer (DRO) at the RO. In October 2015, the Veteran and a witness also testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). Both hearing transcripts have been incorporated into the evidence of record. In April 2016, the Board reopened the claim for entitlement to service connection for bilateral hearing loss and remanded both issues noted above for further development by the originating agency. The case has been returned to the Board for further appellate action. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on her part. FINDINGS OF FACT 1. The Veteran sustained a traumatic brain injury (TBI), following a fall at a VA facility in October 2005. 2. The evidence of record demonstrates that the Veteran's TBI and its residuals, including headaches, memory loss, sleep disturbance, and inability to concentrate, were incurred as a result of VA medical treatment. 3. The evidence of record demonstrates that the Veteran's TBI and its residuals, including headaches, memory loss, sleep disturbance, and inability to concentrate, were proximately 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 in furnishing reasonable care. 4. The additional disability of TBI and its residuals, including headaches, memory loss, sleep disturbance, and inability to concentrate, was not a reasonably foreseeable risk of the VA medical treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for TBI and its residuals, including headaches, memory loss, sleep disturbance, and inability to concentrate, , caused by the October 2005 VA medical treatment, have been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C § 5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the veteran or claimant "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the appellant in substantiating his or her claim. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As the Board's decision herein to grant compensation under 38 U.S.C. § 1151 for TBI with residuals, including headaches, memory loss, sleep disturbance, inability to concentrate, and stress, as residuals of a fall at a VA facility in October 2005, is a full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating this claim. Legal Criteria Under 38 U.S.C. § 1151(a) (2012), compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service connected. For purposes of this section, a disability or death is a qualifying additional disability or death if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and the proximate cause of the disability or death was (A) 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 (B) an event not reasonably foreseeable. Id. To determine whether additional disability exists within the meaning of § 1151, the veteran's condition immediately prior to 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 is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. See 38 C.F.R. § 3.361(b) (2017). To establish causation, 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 does not establish cause. See 38 C.F.R. § 3.361(c)(1) (2017). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361(d) (2017). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (see 38 C.F.R. § 3.361(c)) and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that 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. See 38 C.F.R. § 3.361(d)(1). Finally, the determination of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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. See 38 C.F.R. § 3.361(d)(2). The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R § 17.32. See 38 C.F.R. § 3.361(d)(2). Analysis The Veteran asserts that she sustained injuries in a fall at a VA medical facility in October 2005. Specifically, she reports that she fell in front of a VA outpatient clinic. She waited for transport by VA by backboard, but she was placed on it at an angle (upside down on the steps) and she slid off. As a result, she slammed her head, neck, and shoulder into concrete. She argues that she suffers residuals (migraines, sleep disturbance, inability to concentrate and stress) as a result of the injury to her head. She also claims that she suffered a TBI as a result of this injury, and that her complaints are associated with the incident at VA. VA records in October 2005 note that the Veteran was seen for multiple body contusions and with complaints of multiple body pain after a fall in front of the outpatient clinic. She was walking and fainted. X-rays were taken at that time of multiple joints. This included X-rays of the shoulders, lumbar and cervical spine, elbow, ankle, knee and hip. Nothing significant was noted upon X-rays. VA records from October 2005 reflect that the Veteran did indeed suffer a fall at a VA facility. However, there was no description in the treatment records that she suffered additional injury after falling from the backboard. The Board notes that there is a statement provided by H.B. from June 2008, in which he reported that he witnessed the incident. He attested that she slipped off the backboard and hit her head on the steps. This was due to the fact that she was upside down on the steps when they were placing her on the board. Moreover, there is an August 2015 statement by a friend of the Veteran. He recalled that he ran into the Veteran at the VA facility sometime in early February 2006, and that she related that she had fallen outside the VA outpatient facility in October 2005. She was being transported to the facility on a body board, but she slipped off the back of the board and hit her upper body, to include her head, on the concrete. The Veteran reports that she returned several days after the 2005 injury for complaints of ongoing headaches. VA records show that she was noted to have post-trauma intractable headaches approximately 10 days after the initial fall. The Veteran was prescribed medications for her headaches and associated pain. Subsequently dated records dated through 2014 reflect that the Veteran continues to report pain associated with the injury. She testified during her October 2015 Board hearing that she suffers from headaches, sleep disturbance, inability to concentrate and stress, as a result of the VA carelessness. She argues that her complaints are not associated with her service-connected posttraumatic stress disorder (PTSD). Screening for TBI in 2015 was positive and additional evaluation was to be conducted. See October 2015 VA outpatient treatment records from VA Medical Center in Big Spring. As previously noted by the Board, for purposes of this case, the Board will concede that the Veteran suffered a fall outside of a VA facility in October 2005. This is corroborated in the contemporaneous VA records. Also, the Board will concede that she subsequently slipped off the back of the board on which she was being transported to the clinic and hit her head and upper body. In making this determination, it is pointed out that the Board finds no reason to question the Veteran's account of the secondary injury. Moreover, there is the statement of an eyewitness, which attests to this version of events. See April 2016 Board remand. As noted above, the Board remanded the Veteran's claim in April 2016, to afford her VA examinations for her claimed conditions. While the case was in remand status, the Veteran was granted service connection for migraines pursuant to 38 U.S.C. § 1151 in an April 2017 rating decision. The Veteran claims that she has other residuals from her October 2005 injury at a VA facility, including sleep problems and problems with concentration and stress. A VA medical opinion was submitted in March 2017. The examiner, after continuing to dispute the Board's findings that the Veteran did, in fact, suffer a head injury following her fall from a backboard being carried by VA employees at a VA facility in October 2005, finally conceded that it is certainly possible that all of the Veteran's symptoms/complaints, including migraines, sleep disturbance, inability to concentrate, and stress, are due to her trauma in October 2005. The examiner also concluded that the employees who were trying to help the Veteran were apparently not trained in using a backboard to transport someone up many stairs, and it would be very difficult for four men to put someone on a back board and then climb several steps safely, and unless a person is strapped down, no one should try to do this while going up many stairs. Therefore, he concluded that the employees should have gone to Urgent Care or Surgery and obtained a gurney to transport the Veteran on the side walk to Urgent Care. As such, he opined that the VA employees did not use good judgment when transporting the Veteran after her fall. The examiner also noted that the Veteran needed to be evaluated by a psychologist and needed a proper TBI examination. See March 2017 VA opinion. The Veteran was afforded a residuals of TBI examination in October 2017. The examiner noted that there was no loss of consciousness at the time of the Veteran's reported head injury in October 2005. However, it was noted that she was diagnosed with a TBI by a VHA psychiatrist, neurosurgeon or neurologist that month. She was assessed with symptoms of mild memory loss; mildly impaired judgement; occasionally inappropriate social interaction; occasionally disoriented orientation; motor activity normal most of the time, but mildly slowed at times due to apraxia; moderately severely impaired visual spatial orientation; constant headaches, vertigo and insomnia; and occasional irritability and impulsivity. The only residuals of TBI noted were hearing loss and/or tinnitus and headaches. The same VA examiner submitted an opinion in October 2017. However, rather than provide an opinion as to whether the Veteran's reported TBI residuals, other than migraine headaches, are related to treatment received at a VA facility in October 2005; the examiner continued to vehemently dispute the Board's finding that the Veteran sustained a head injury on October 2005 at a VA facility, stating that he had a problem with the request for TBI based on the injuries of October 21, 2005, "AS THERE IS ABSOLUTELY NO DOCUMENTATION AT ALL THAT SHE INCURRED A HEAD INJURY ON 10/21/05 IN ANY OF THE NURSES NOTES OR THE DOCTORS NOTES." The examiner concluded that based on all the medical evidence, if the Veteran really was dropped on her head, there are no comments that imply that she or any of the medical personnel that she saw in October 2005 had any idea that she was dropped on her head. A subsequently submitted October 23, 2017 note included in the report indicates that the examiner had requested that the current Chief of Police try to locate any records of the day in question and that if he was able to locate any proof that the Veteran was dropped on her head, he would provide an addendum to the report. First and foremost, the Board notes that the October 2017 examiner rejected the Board's finding that the Veteran sustained a head injury during her fall at a VA facility in October 2005, as directed in the Board's April 2016 remand, and based his opinion on his own conclusion as to the Veteran's credibility and showed sufficient skepticism of the Veteran's report such that his opinion is compromised. As such, the Board finds that the opinion is based on an inaccurate history and it is not afforded any probative value. See Monzingo v. Shinseki, 26 Vet. App. at 107 (citing Reonal v. Brown, 5 Vet. App. at 461 (explaining that a medical opinion should be based on an accurate factual premise)). Furthermore, as the examiner failed to provide an opinion or rationale, the examination report is inadequate for evaluation purposes. In an October 2016 statement, private physician, C.D.B., D.O., an AOA Board Certified Neurologist, noted that he was treating the Veteran for her PTSD, but had also seen her regarding her TBI. He noted the Veteran's reports of her fall at a VA facility in October 2005, and her symptoms since that time. These included severe memory loss, fear, headaches, blackouts, sleep impairment, fatigue, depression, anxiety, and light sensitivity. He opined that the Veteran had a TBI that was sustained from a fall at a VA hospital in October 2005, and indicated further that the noted symptoms were not her full list of problems and are separate from the problems she has related to her PTSD, which are specific to her military sexual trauma. The Veteran's private psychologist, J.R.R., who has been treating the Veteran since 2005, submitted a statement in February 2017. J.R.R. noted that the Veteran's mental and physical health began to decline long-term after a fall at a VA facility in October 2005, during which she injured her head and neck, and sustained a TBI. He noted that the residuals of her TBI include long-term and short-term memory loss, cognitive defects, headaches, motor dysfunction (problems driving), vision problems, and social isolation. The March 2017 VA examiner's opinion is somewhat skeptical, in that he states that it is possible that the Veteran's reported symptoms are related to her fall from a backboard at a VA facility in October 2005. However, both private doctors noted above have opined that the Veteran's currently diagnosed TBI and its residuals are related to her fall from a backboard and resulting head injury at a VA facility in October 2005. Furthermore, the March 2017 examiner opined that the actions of the VA employees, which caused the Veteran's fall were a result of bad judgment on the part of the employees. Therefore, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's currently diagnosed TBI and its related residuals, including memory loss, sleep disturbance, and inability to concentrate, were caused by medical treatment at a VA facility in October 2005, and 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 VA in furnishing the medical treatment, as the people who were transporting the Veteran during her fall were VA employees. (It is not clear what the claimed "stress" specifically refers to.) The Board also finds that the Veteran's injury was an event not reasonably foreseeable, as there is no allegation or evidence that the Veteran was informed of the possible risks of falling from a backboard prior to being placed on the backboard and transported up the stairs. There was no informed consent as this was apparently an emergency situation that required immediate action. However, the Board finds that the Veteran had no reason to believe that the VA employees who placed her on the backboard and transported her were not adequately trained in their duties or did not know the proper procedure for transporting a patient on a backboard. The VA examiner who provided the March 2017 opinion subsequently contradicted his opinion in October 2017, as noted above, but the Board finds that the evidence is, however, in at least equipoise. Resolving reasonable doubt in the appellant's favor, the Board finds that compensation under 38 U.S.C. § 1151 is warranted. 38 U.S.C. § 5107(b) (2012). ORDER Compensation under 38 U.S.C. § 1151 for TBI with residuals, including headaches, memory loss, sleep disturbance, and inability to concentrate, as residuals of a fall at a VA facility in October 2005, is granted. REMAND The Veteran contends that she has bilateral hearing loss as a result of in-service acoustic trauma while working in communications without hearing protection. When examiner for service entrance purposes in December 1974, audiometric examination of the Veteran did not disclose hearing loss. Audiometric examination at the time of discharge in 1978 is negative for hearing impairment. However, the Veteran's DD-214 shows that she had a military occupational specialty (MOS) of radioman (RM). Accordingly, the Board finds that an acoustic trauma injury, such as that described by the Veteran, would be consistent with the places, types and circumstances of the Veteran's service and, therefore, noise exposure in service is conceded. 38 U.S.C. § 1154(a) (2017). Current medical records reflect some degree of bilateral hearing loss, and the Veteran has testified that she has absolutely no hearing acuity in the left ear. She has related that in recent years she suffered from the sudden onset of hearing loss with some recovery of her right ear hearing, but not her left. It is noted that she also claims that she sustained a post-service injury to the head at a VA facility, and that she was diagnosed with a TBI in 2015 and 2017. It is not in dispute that the Veteran has current bilateral hearing loss. The question is whether the disability is related to service. In accordance with the Board's April 2016 remand, the Veteran was afforded another VA audiological examination in August 2016. The examiner diagnosed bilateral sensorineural hearing loss, which she opined was less likely than not caused by or a result of an event in military service. The rationale was that as the Veteran had normal hearing at enlistment and separation, and there was no evidence of a standard positive threshold shift between the two examinations, her current hearing loss is less likely than not due to military service and/or noise exposure. The examiner also noted that the Institute of Medicine (IOM) study of 2006 revealed that there was insufficient evidence to conclude that hearing loss attributable to noise exposure would develop long after the noise exposure. See April 2016 examination report. Essentially, the Board finds that the examiner opined that, as there was no evidence of hearing loss in service or at the time of the Veteran's discharge from service, the Veteran's currently diagnosed bilateral hearing loss is not related to noise exposure in service. However, the Board's inquiry does not end there. Service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303(d) (2017). The August 2016 examiner did not provide an adequate opinion as to whether the hearing loss identified after service was related to a disease or injury in service or to the Veteran's reported symptomatology. As such, the Board finds that the opinion is inadequate, and therefore, does not contain enough information upon which to base a decision. 38 C.F.R. § 4.2 (2017); see 38 C.F.R. § 19.9 (2017). With regard to whether the Veteran's hearing loss was related to her head injury at a VA facility in October 2005, the examiner noted that the incident occurred in October 2005, but the Veteran reported sudden hearing loss in both ears in 2010, more than 5 years after the incident. She also noted that head CT scans from October 2005 and March 2006 as well as MRI studies of the brain and IACs done in December 2010 were unremarkable. She noted that, typically, hearing loss caused by blast exposure and/or head trauma is sudden following the trauma, rather than delayed onset. However, the examiner ultimately concluded that it was not within her scope to determine etiology and/or opine on post traumatic delayed onset hearing loss following the Veteran's injury in 2005. She also concluded that it was outside of the scope of her practice to determine if the Veteran's hearing loss was the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of the VA. As the examiner determined that she was not qualified to provide the opinion requested by the Board, this portion of the examination report is also inadequate for evaluation purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran's reports provide competent and credible evidence of hearing loss during active military duty and a continuity of symptoms since. Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current bilateral hearing loss is necessary. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 4.2 (2017). The appellant is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, afford the Veteran a VA examination to determine the etiology of her currently diagnosed bilateral hearing loss. The examiner should review the claims folder and acknowledge such review in the examination report, and any indicated studies should be performed. The examiner should elicit from the Veteran a detailed account of any instances of noise exposure before, during and after service, and whether the Veteran used hearing protection devices. The examiner is advised that military noise exposure is conceded. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed bilateral hearing loss is the result of noise exposure or other injury or disease in active service. The examiner should additionally address whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed bilateral hearing loss is a result of VA medical care, including the injury in 2005 at a VA facility. In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, discuss whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. If additional disability or disabilities exist, is it at least as likely as not (50 percent probability or greater) that such was due to an event not reasonably foreseeable? A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the appellant is competent to report injuries and symptoms, and that her reports must be considered in formulating the requested opinion. If her reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then readjudicate the Veteran's remaining claim. If the benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise 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. §§ 5109B, 7112 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs