Citation Nr: 1801930	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  09-05 108	)	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 service connection for tinnitus.  

3.  Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of right ureteroscopy (also claimed as bladder puncture, excessive urination/inability to hold back urge, and ruined sexual desires).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Mukherjee, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to November 1974 and from March 1977 to September 1977.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2007 and April 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran testified in May 2017 before the undersigned Veterans Law Judge (VLJ).  A transcript of this proceeding is associated with the claims file.

In April 2017, the Board remanded the Veteran's claims for service connection for bilateral hearing loss and tinnitus for additional development.  As discussed further below, the Board's directives have not been substantially completed, and remand is required.  Stegall v. West, 11 Vet. App. 268 (1998).

The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Residuals of right ureteroscopy were not due to carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault on VA's part in furnishing medical treatment; nor are they the result of an event not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for entitlement to benefits under 38 U.S.C. § 1151 for residuals of right ureteroscopy have not been met.  38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

A Veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability . . . were service-connected" if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable."  38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013).  The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation.  38 U.S.C. § 1151(a).

First, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question.  38 C.F.R. § 3.361(b).  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 body part or system separately.  The additional disability must not be the result of the Veteran's willful misconduct.  38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3).

Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA.  38 C.F.R. § 3.361(c).  Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability 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.  38 C.F.R. § 3.361(c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993).  That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and such additional disability must be directly caused by that VA activity.  Loving, 19 Vet. App. at 101.

Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable.  38 U.S.C. §1151(a)(1); 38 C.F.R. § 3.361(d).

Therefore, 38 U.S.C. § 1151 contains two causation elements-an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event."  38 U.S.C. § 1151(a)(1).

The record shows that the Veteran was admitted for an obstructing mid-ureteral right calculus in September 2011.  Soon thereafter, the Veteran underwent a cystoscopy and ureteroscopy.  Medical records indicate that during the operation, an attempt was made to pass a wire around the calculus; however, the wire perforated the ureter, and the procedure was stopped.  In November 2011, the Veteran again underwent a right ureteroscopy and placement of an internal ureteral stent.  

The Veteran contends that perforation of his ureter during the first surgery caused frequent urination and decreased sexual desires.  However, the evidence of record is silent for any treatment, complaints, or symptoms of complications following his most recent surgery in November 2011.  There is a single notation that the Veteran experienced a bacterial infection following his first surgery; however, treatment records indicate it was treated with antibiotics prior to his second surgery.  See November 2011 Operation Report.  The Veteran was seen in follow-up treatment two weeks after his surgery in November 2011 and was found to be doing well.  The Veteran was without pain, fevers, or hematuria.  In addition, during the May 2017 Board hearing, the Veteran indicated that since his surgeries in 2011, he has not seen any private or VA doctors regarding his claimed complications.  

Furthermore, the evidence documents that prior to the procedure, the likely significant risks of the procedure and potential complications, viable alternatives and rational benefit were all discussed with the Veteran.  This, specifically, included the potential of alteration in urinary elimination.  See November 2011 Nursing Outpatient Operative Note.  There is further documentation that the Veteran had decision-making capacity and that, following the discussion, he read and signed the consent form.

Although the Veteran contends that the inadvertent puncture of his ureter caused complications, he has presented no competent evidence to support his assertion.  Indeed, the evidence shows no reports of complaints or abnormal check-ups following surgery.  Moreover, prior to the surgery, the Veteran knew the potential complications of the surgery.  Finally, the Veteran does not have the medical training or credentials to provide competent evidence addressing whether specific symptoms were due to a surgical procedure, let alone due to negligence or other fault or to an event not reasonably foreseeable.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Veteran is certainly welcome to reopen his claim, should he in the future present competent evidence of complications following his surgery.  At present, however, there is no competent evidence of carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in performing the right ureteroscopy, nor was any additional disability shown to be due to an event not reasonably foreseeable.  Therefore, the Veteran does not meet the criteria for VA compensation pursuant to 38 U.S.C. § 1151.  Accordingly, entitlement to VA compensation is denied.


ORDER

Entitlement to compensation for residuals of right ureteroscopy under the provisions of 38 U.S.C. § 1151 is denied.


REMAND

The Veteran was afforded a VA audiological examination in May 2017; however, the Board finds the examination adequate for adjudication purposes.  The VA examiner opined that the Veteran's military noise exposure did not cause his current hearing loss, basing her determination on the Veteran's examinations during his first period of service between 1972 and 1974.  However, regarding the Veteran's second period of service from March 1977 to September 1977, the examiner merely noted that there was little change in the Veteran's hearing during his enlistment and separation examinations.  The examiner did explain why this change in the Veteran's hearing was not a significant threshold shift.  As such, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's bilateral hearing loss.  

Likewise, it appears that the examiner misconstrued the Veteran's statement about the onset of his tinnitus.  The Veteran stated that his tinnitus began in 1974, after his first period of service; however, the examiner's opinion seems to indicate that it started post-discharge and therefore could not be related to service.  As such, the Board finds that another remand is necessary. 

Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order.  Stegall, 11 Vet. App. at 270-71.  As prior remand orders were not complied with, and in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted.  In this case, the Board finds that this claim must be sent back again for a full VA examination which addresses the questions asked in the prior remand.

As noted in the April 2017 Board remand, a recent appellate decision provides that if hearing loss does not meet the definition under 38 C.F.R. § 3.385 on entry into service, the Veteran is entitled to be presumed sound.  See McKinney v. McDonald, 28 Vet. App. 15, 21 (2016).  In this case, neither the Veteran's entrance or exit examinations, nor any other evidence of record indicate that he had hearing loss, as defined under 38 C.F.R. § 3.385, at any time, before or during enlistment.  Accordingly, the Veteran is entitled to the presumption of soundness, meaning that, for purposes of these claims, and the VA examination, it must be presumed that the Veteran's hearing was sound upon his enlistment into active duty service.

While on remand, the RO should also attempt to obtain the Veteran's updated VA treatment records and any additional relevant private medical records. 

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request authorization to obtain any outstanding records pertinent to the claim, including any private treatment records following proper VA procedures.  

2.  After completing the requested development, afford the Veteran a VA audiological examination to determine the precise nature and etiology of his bilateral hearing loss and tinnitus.  The Veteran's claims file must be made available to the examiner in conjunction with the examination.  

Before performing the examination, the examiner must review the claims file, to specifically include the Veteran's entrance and separation examinations from his two separate periods of active duty, which are summarized in the Board's September 2013 remand.

Note: Despite the evidence of a hearing threshold shift on October 1972 entry into service, the Veteran is presumed to be of sound condition upon entry into service, i.e., to not suffer from a hearing loss disability upon entry into service, because the threshold shifts noted do not meet the criteria of 38 C.F.R. § 3.385 that define hearing loss as a disability for VA purposes.

a)  With regard to the Veteran's bilateral hearing loss, and assuming that he was in sound condition upon entrance to service (see above Note), is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hearing loss was caused by one or both of his two periods of active service, from November 1972 to November 1974 and from March 1977 to September 1977, or otherwise had its onset during a period of active service?  The examiner should discuss the significance, if any, of the October 1972 entrance examination. 

b)  With regard to the Veteran's bilateral tinnitus, is there clear and unmistakable evidence (obvious and manifest) that the Veteran's tinnitus pre-existed either period of active service, taking into consideration the Veteran's pre-service history of noise exposure?

c)  If the answer to (b) is yes, is there clear and unmistakable evidence that the Veteran's tinnitus was NOT aggravated by either period of active service?

d)  If the answer to (b) is no, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral tinnitus was caused by either period of active service, or otherwise had its onset during a period of active service?

A comprehensive rationale for any opinion offered should be provided. 

The examiner is asked to discuss the impact of in-service and post-service noise exposure on any current hearing loss or tinnitus-related disability. The examiner must consider the lay statements of record. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion.

3.  Finally, after completing the above actions, as well as any other development that may be warranted, the RO must readjudicate the Veteran's bilateral hearing loss and tinnitus service connection claims in light of all the evidence of record.  If any benefit on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment.  The law requires that all issues 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).



______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs