Citation Nr: 1802305 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-16 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for recurrent bilateral inguinal hernias due to surgery performed a VA medical facility in July 2011. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for an acquired psychiatric disability due to surgery performed a VA medical facility in July 2011 5. Entitlement to a total evaluation due to individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Scott W. Dale, Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1978 to January 1981 with prior and subsequent service of an unverified nature in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from February 2015, May 2015, and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In June 2017, the RO issued a rating decision which denied sixteen different claims for disability benefits. Although the appeal period has not lapsed on this determination, the Veteran has not yet expressed disagreement with any issue denied. As such, none of those issues are in appellate status. See 38 U.S.C.A. § 7105 (a); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (holding that, pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after a Statement of the Case is issued by VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, after review of the record, the Board concludes that additional evidentiary and procedural development is necessary prior to the Board's adjudication of the issues on appeal. Initially, the Board notes that the record for review before the Board is incomplete at this time. Particularly, although two of the issues on appeal stem from a July 2011 surgery at the San Juan VA Medical Center (VAMC), the operative report and informed consent form for the procedure are not of record. Further, while the Veteran submitted a completed release of records from a private psychologist in June 2014, the file does not include these records or commemoration of any steps taken by the RO to obtain them. As both sets of records are pertinent to issues on appeal, the VA treatment records are considered to be under VA's the constructive possession, and the private treatment records are reasonably identified, the Board concludes that adequate attempts to obtain and associate them with the file must be undertaken. Also, in a January 2013 statement from the Veteran received by VA in February 2013, the Veteran requested reconsideration of a claim filed by him under the Federal Tort Claims Act (FTCA) against VA pertaining to his July 2011 VA surgery, which is the basis of the issues filed under 38 U.S.C.A. § 1151, and an apparent earlier denial of this claim. To further ensure completeness of the record, the Board concludes that the AOJ should contact the Torts and Administrative Law Group section of VA's Office of General Counsel (OGC) in an attempt to obtain and associate with the record any non-privileged records concerning of the Veteran's FTCA claim and any resulting settlement of judgment. Regarding the issue seeking compensation for recurrent bilateral inguinal hernias under 38 U.S.C.A. § 1151, the Board concludes that the February 2014 VA examination and opinions are inadequate for the purpose of adjudicating the appeal. Specifically, the examiner gave contradictory statements concerning whether or not there was an additional disability resulting from the July 2011 surgery - which is the threshold question for claims and appeals filed under 38 U.S.C.A. § 1151. While not exercising medical judgment, the Board notes that the examiner's statement in this regard seems to be contrary to the fact that, after the Veteran's July 2011 surgery to correct his bilateral inguinal hernias, both hernia recurred, and subsequent corrective surgeries were necessary in November 2012 (right hernia) and June 2013 (left hernia). As such, clarification is necessary. Regarding the issue seeking compensation for an acquired psychiatric disability under 38 U.S.C.A. § 1151, the Veteran's VA treatment records show that he experienced psychiatric symptoms such as anxiety and panic attacks as early as 2000 - more than 11 years prior to the July 2011 bilateral hernia surgery. However, a VA psychological assessment performed in November 2013 reflects diagnoses of major depressive disorder, general anxiety disorder, and delusional disorder, somatic type, and the VA psychologist's notation that the Veteran's psychiatric symptoms increased severely after the July 2011 hernia surgery. This statement is in line with a January 2013 assertion from a private clinician who noted that the Veteran had demonstrated increased and severe psychiatric symptoms secondary to the July 2011 failed hernia surgery. Despite this evidence showing an additional or aggravated psychiatric disability secondary to the July 2011 VA surgery, the Veteran was not provided a VA examination in connection with this issue to address the downstream legal criteria of a claim for benefits filed under 38 U.S.C.A. § 1151. In light of above, the Board concludes that the threshold criteria to trigger VA's duty to provide an examination in connection with this issue has been met, and thus, such an examination must be provided. See 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4); see also, generally, McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the issues seeking service connection for bilateral hearing loss and tinnitus, the Veteran incurred in-service exposure to excessive noise, and diagnoses of a bilateral hearing loss disability and tinnitus were rendered at a May 2016 VA examination. As such, the first two criteria to establish service connection for both disabilities are met. However, while the May 2016 VA examiner provided opinions that neither disability was proximately due to or the result of the Veteran's service, the records reflects that these opinions are based on inaccurate factual premises, and thus, they are inadequate for the purpose of adjudicating these issues. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Specifically, while the examiner's unfavorable etiological opinion was based on the fact that the Veteran's post-service audiograms, dated in October 1985, August 1987, and February 1992, showed normal hearing in both ears, the Board notes that these audiograms were conducted while the Veteran was serving in the United States Army Reserves and show some degree of hearing loss, with thresholds of more than 20 decibels, in each ear. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Further, to the extent that the Veteran incurred excessive noise and demonstrated some level of hearing loss during his service in the Army Reserves, the Board notes that the criteria to establish service connection for disabilities incurred during periods of Active Duty for Training (ACDUTRA) and Inactive Duty Training (INACDUTRA) differ from those pertaining to active duty service. Specifically, while service connection may be established for disabilities resulting from injuries incurred on periods of ACDUTRA and INACDUTRA, service connection is warranted for diseases initially manifesting on periods of ACDUTRA only. Further complicating matters, the Board notes that both bilateral hearing loss and tinnitus are diseases that may be manifested idiopathically or as the result of an injury, to include exposure to excessive noise. With the above in mind, it is crucial to determine the Veteran's periods of ACDUTRA and INACDUTRA and the etiology and date(s) of initial manifestations of his bilateral hearing loss disability and tinnitus. While the Board notes that the record includes a compilation and listing of the Veteran's retirement points, this does not suffice to determine the dates of each period of ACDUTRA and INACDUTRA served by the Veteran between his separation from active duty and his exit from the Army Reserves in February 1992. To this end, the AOJ should obtain the Veteran's pay stubs for his service in the Army Reserves in an attempt to determine whether he was serving on ACDUTRA or INACDUTRA at any given time. All actions undertaken in this pursuit must be commemorated in the file. As the nature of the Veteran's service in the Army Reserves impacts the criteria necessary to establish service connection, after the dates of the Veteran's periods of ACDUTRA and INACDUTRA are determined, additional VA opinions should be sought to determine the etiology and date(s) of onset of his bilateral hearing loss disability and tinnitus. Finally, because the May 2016 VA examiner opined that the Veteran's tinnitus was at least as likely as not secondary to his bilateral hearing loss disability, and as the issue of entitlement to TDIU is dependent on the Veteran's service-connected disabilities and evaluations assigned thereto, these issue are intertwined with the other issues remanded herein. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ must obtain and associated with the file all records and informed consent forms completed in connection with the Veteran's hernia surgeries in July 2011, November 2012, and June 2013, and all records of VA treatment from the San Juan VA Medical Center and associated facilities dated after June 2, 2017. 2. The AOJ must make reasonable efforts (at least two attempts) to obtain and associate with the file all records of private treatment from the private provider identified in the June 2014 release submitted by the Veteran. If an updated release is necessary to obtain these records, the AOJ must provide such to the Veteran with instructions to complete and submit it with reference to this healthcare professional. All efforts to obtain these records must be commemorated in the file. 3. The AOJ must obtain all available non-privileged records and evidence associated with the Veteran's tort claim under the Federal Tort Claims Act against VA, to include any judgment rendered or settlement reached. Specifically, the AOJ must contact the Tort and Administrative Law Group of the VA Office of General Counsel, to request these records. Associate all response(s) and/or evidence obtained with the file. If the records are not obtained, and only if after continued efforts to obtain them shows that the records do not exist or further efforts to obtain them would be futile, the AOJ must provide to the Veteran a formal finding of unavailable that accomplishes the following: (a) informs him that VA was unable to obtain the records associated with his tort claim; (b) explains the efforts VA made to obtain such records; (c) provides a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (d) notifies him that he is ultimately responsible for providing the evidence. 4. The AOJ must contact the Defense Finance and Accounting Service, the National Personnel Records Center and any other appropriate repository and request the Veteran's pay stubs from the his service in the Army Reserves from 1981 to February 1992. Attempts to secure the pay stubs should be clearly documented in the file, along with any negative responses. 5. Based on the information obtained from the above instructions, the AOJ must verify the exact dates of each period of ACDUTRA and INACDUTRA that the Veteran attended during his service in the Army Reserves. The AOJ should prepare a summary of this information and associate it with the claims file. 6. Thereafter, the AOJ must schedule the Veteran for a VA examination by an examiner with the appropriate expertise to assess any additional disabilities related to his July 2011 bilateral hernia surgery. The entire file, including a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should specifically address the following questions: a. Does the Veteran have any additional disability that was caused by hospital care, medical or surgical treatment, or examination either by a VA employee or in a VA facility pursuant to his July 2011 bilateral hernia surgery? The Board notes that the VA examiner should evaluate whether the Veteran has a current additional disability, which would include during the pendency of the issue on appeal, not necessarily the period immediately after the July 2011 surgery or the subsequent surgeries in November 2012 and June 2013. If no additional disability is found, the examiner is asked to reconcile this finding with the evidence of record showing increased psychiatric symptoms and recurrence of right and left hernias after the July 2011 surgery. IF AND ONLY IF THE VETERAN HAS AN ADDITIONAL DISABILITY, THE VA EXAMINER SHOULD ANSWER THE FOLLOWING QUESTIONS: b. Is it at least as likely as not that any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment? c. If the Veteran incurred an additional disability as a result of VA medical care, but such disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the additional disability to be an ordinary risk of a bilateral inguinal laparoscopy. The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. *If it is felt that two separate examinations are necessary to address the Veteran's assertions of resulting physical (recurrent hernias) and psychiatric disabilities, then an additional examination must be scheduled, and the Veteran should be informed of the time and place to report. 7. Thereafter, the AOJ must provide the Veteran a VA audiological examination. The examiner is requested to review all pertinent records associated with the file, including the Veteran's service treatment records, the summary of the nature of all of the periods of the Veteran's service, post-service medical records, and statements. After of review of the complete record, an interview with and examination of the Veteran, and the completion of audiometric testing, the examiner should address the following: a. State an approximate date of onset of the Veteran's bilateral hearing loss disability. *The examiner is reminded that, while lesser than the criteria of a bilateral hearing loss disability for VA standards, decibel thresholds of more than 20 decibels at any tested frequency indicates some degree of hearing loss. b. State an opinion as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss is related to the Veteran's active duty service or a period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA), to include whether the audiological evaluations showing some degree of hearing loss in both ears in the 1980's and February 1992 are early manifestations of the Veteran's current bilateral hearing loss disability. c. State an approximate date of onset of the Veteran's tinnitus. d. State an opinion as to whether it is at least as likely as not that the Veteran's tinnitus is related to the Veteran's active service or a period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). e. If it is determined that the Veteran's bilateral hearing loss is related to a period of service, state opinions as to whether it is at least as likely as not that the Veteran's tinnitus, is caused or aggravated by his bilateral hearing loss. Rationale must be provided for all opinions proffered. "Aggravation" means a chronic or permanent worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression. 8. Thereafter, the AOJ must readjudicate the Veteran's appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case (SSOC) should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).