Citation Nr: 18142638 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 18-36 332 DATE: October 16, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity neurological impairment is denied. The previously denied claim of entitlement to service connection for hearing loss is reopened. Entitlement to service connection for right lower extremity neurological impairment is denied. Entitlement to service connection for hearing loss is denied. FINDINGS OF FACT 1. Additional right lower extremity neurological impairment, to include foot drop, did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA; or an event that was not reasonably foreseeable. 2. The Veteran’s right lower extremity neurological impairment and foot drop is neither proximately due to nor aggravated beyond its natural progression by his service-connected atrial fibrillation, and is not otherwise related to an in-service injury, event, or disease. 3. Service connection for hearing loss was last denied in an unappealed July 2002 rating decision. New and material evidence was not received within a year of notice of the decision. 4. Evidence received since the July 2002 rating decision was not previously considered by the agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the claim. 5. Hearing loss was not shown during the Veteran’s first period of active duty or within a year of discharge therefrom; and is not the result of a disease or injury during such service. 6. A hearing loss disability pre-existed the Veteran’s second period of active duty and was not aggravated therein. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for right lower extremity neurological impairment are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.102, 3.361. 2. The criteria to reopen a previously denied claim of entitlement to service connection for hearing loss are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for right lower extremity neurological impairment, to include as secondary to service-connected atrial fibrillation, are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 4. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1951 to March 1955 and from February 1991 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2016 and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 1. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity neurological impairment The Veteran seeks entitlement to compensation pursuant to 38 U.S.C. § 1151 for right lower extremity neurological impairment. Specifically, he asserts that his neurological impairment (including right foot drop) is the result of treatment at the VA medical center (VAMC) in Milwaukee. Although sympathetic to the Veteran’s contentions, the Board finds that this claim must be denied based on a lack of legal entitlement under the law. Compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For the purposes of this section, a disability is a “qualifying additional disability” if the disability was not the result of the veteran’s willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, “either by a Department employee or in a Department facility.” In addition, the proximate cause of the disability must be either 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 an event not reasonably foreseeable. 38 U.S.C. § 1151. 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... upon which the claim is based to the Veteran’s condition after such care [or] treatment... has stopped. 38 C.F.R § 3.361 (b). Whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not 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. 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 § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. §17.32 of this chapter. Minor deviations from the requirements of §17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in §17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361(d)(1)(ii). Briefly, the record shows that in January 2015, the Veteran came to the VAMC in question with congestive heart failure and was found to have atrial fibrillation. Treatment notes shortly thereafter show he had a five-week history of wound on his right heel and also a history of peripheral vascular disease, congestive heart failure, diabetes and atrial fibrillation. He underwent procedures for endovascular treatment of his right lower extremity arterial disease (i.e. angioplasties and stents to his arteries). Approximately a week later, the Veteran underwent a second surgery to treat a groin and thigh hematoma that resulted at the catheterization site. In August 2015, the Veteran underwent a right leg angioplasty related to right lower extremity ischemia and right second toe necrosis, followed the next day by a right second toe amputation. In January 2017, the Veteran provided a medical opinion regarding his claim from Dr. J.R., a private orthopedic surgeon. Dr. J.R. indicated review of the pertinent VA and private medical records and provided a detailed summary of the Veteran’s 2015 surgeries and post-surgical symptoms and treatment. On current physical examination, he observed the Veteran to have an absent second digit and slight loss of the tip of the third digit on his right foot; right foot drop was present. Dr. J.R. opined that after reviewing the Veteran’s medical records and past medical history, his right foot drop and trouble walking occurred at the time or shortly after the time of the angioplasty to the right tibial artery trunk, tibial artery, and/or peroneal artery. The foot drop occurred with the procedure and the angioplasty to that portion of the arterial tree. Dr. J.R. opined that the Veteran’s foot drop should be considered a complication of the surgical treatment, but further opined that no malpractice was involved. In July 2017, a VA physician opined that it is as likely as not that the Veteran’s right lower extremity neuropathy developed while he was receiving care at the VA, but that it was less likely than not the Veteran’s right lower extremity neuropathy was the result of carelessness, negligence, lack of proper skills, air and judgment; or was a result of an event that could not be reasonably foreseen; or was a failure on the part of the VA to timely diagnose and properly treat the disease. The VA physician explained that the Veteran’s primary risk factor for developing right lower extremity neuropathy was his diabetes; his diabetic peripheral neuropathy placed him at a higher risk for developing additional neuropathies. The examiner further explained that the Veteran underwent multiple surgeries on his lower extremities in 2015 and had multiple stays in the intensive care unit, and lower extremity neuropathy (foot drop) is an established risk factor for the multiple lower extremity surgical procedures that the Veteran underwent at that time. It is not the result of careless, negligence, lack of proper skill or judgment or other similar instance of fault. The examiner also indicated that he had reviewed the medical opinion of Dr. J.R., who found no malpractice had occurred, and expressed agreement with that conclusion. At the outset, the competent evidence of record establishes the presence of an additional disability, specifically right lower extremity neurological impairment (to include right foot drop) following the VA treatment in January and February 2015. However, the proximate cause of this additional disability was not 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 an event not reasonably foreseeable. In reaching this conclusion, the Board accords great probative weight to the January 2017 and July 2017 medical opinions, both of which found no fault on the part of VA. The VA medical opinion also establishes that the Veteran’s right foot drop was reasonably foreseeable. Both opinions were predicated on a thorough review of the record, which includes medical records concerning the treatment in question, the Veteran’s clinical presentation and his lay statements, and the examiners’’ clinical expertise and training. Both opinions were supported with a cogent rationale, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There are no competent medical opinions to the contrary. Further, the record shows there was no lack of informed consent. Medical records dated in 2015 indicate that following a discussion of the risks and alternatives, the Veteran gave informed consent to proceed with the lower extremity angiogram. The informed consent form associated with a subsequent angioplasty indicates the surgery may cause loss of sensation; poor blood supply to limbs with loss of limb or chronic pain; and damage, blockage, or sudden closure of blood vessels. As the most probative and competent evidence of record shows that an additional disability of the right lower extremity, to include neurological impairment and right foot drop, did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. 2. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a November 1992 rating decision, the AOJ denied service connection on the basis that hearing loss was not shown to be incurred in or aggravated by service. In a July 2002 rating decision, the AOJ reopened and denied service connection for a lack of nexus. In an April 2008 rating decision, the AOJ declined to reopen the claim for hearing loss. The Veteran sought to reopen his claim most recently in June 2016. The evidence received since the July 2002 rating decision includes a private medical opinion dated in January 2017, lay statements from the Veteran, an August 2016 VA examination report and January 2017 supplemental VA opinion. The VA examination report and private medical opinion were not previously of record and address the etiology of the Veteran’s hearing loss. As this evidence was not before VA or considered in the prior denial, it is new. These opinions also address causal nexus and thus are material. The private opinion is favorable regarding existence of a nexus and raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been received. The claim for service connection for hearing is reopened. The reopened claim is addressed below. The Veteran is not prejudiced by this action as the RO has also reopened and adjudicated this claim on the underlying merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. §§ 1153, 1137; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases, such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Establishing a service connection on a secondary basis requires evidence to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 37 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). 3. Entitlement to for right lower extremity neurological impairment, including as secondary to service-connected atrial fibrillation The Veteran seeks service connection for right lower extremity neurological impairment. He has limited his claim of service connection to a secondary theory of causation. Specifically, the Veteran alleges that his right lower extremity neurological impairment is related to service-connected atrial fibrillation or the result of treatment he underwent for his service-connected atrial fibrillation. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008). In June 2016, a VA physician was asked to review the file and offer an opinion on whether the Veteran’s right lower extremity neurological impairment and right foot drop was due to his atrial fibrillation. The VA physician opined that it is less likely as not the claimed right lower extremity neurological impairment has been caused by nor permanently aggravated beyond normal progression by the Veteran’s service-connected atrial fibrillation. The examiner explained that as there is no evidence that the Veteran had a stroke, his right foot drop is associated with his diabetic neuropathy. The physician further reasoned that chronic atrial fibrillation is an arrhythmia of the sinoatrial pathway of the heart. He explained that there was no medical literature of which he was aware that shows a direct nor indirect relationship between chronic atrial fibrillation causing or permanently aggravating any vascular or neurological structures regarding the lower extremities, especially a right foot drop, neuropathy or peripheral vascular disease. In his January 2017 opinion, Dr. M. opined that if the reasons for the angiography and angioplasty are service-connected, then the complications from that procedures should also be service-connected. The Board notes that the 2016 VA examiner explained that the right foot drop is associated with the Veteran’s diabetic neuropathy. The July 2017 VA physician also determined that the Veteran’s primary risk factor for developing right lower extremity neuropathy was his diabetes. Diabetes is not a service-connected condition. The Board acknowledges the Veteran’s lay contention that his neurological impairment and right foot drop is related to his atrial fibrillation. However, the Veteran’s lay opinion that his right leg neurological impairment is related to or was worsened by his atrial fibrillation is not competent evidence. The appellant, as a lay person, is also not competent to say his foot drop neurological condition is in anyway related to his service-connected atrial fibrillation, because this is a complex medical question for which medical expertise is required. See Jandreau v. Shinseki, 492 F.3d 1372 (2007). The Board finds that the VA medical opinions discussed above are highly persuasive evidence against the claim. The examiners reviewed the claims file and considered the Veteran’s clinical history and lay testimony. The VA physicians have the requisite medical expertise to render a medical opinion regarding the matter at hand. Therefore, the Board finds the VA opinion to be of great probative weight. There is no equally persuasive, competent evidence to the contrary. The preponderance of the competent evidence is against the claim. Accordingly, the benefit of the doubt rule does not apply and service connection for right lower extremity neuropathy is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for hearing loss is denied. The Veteran seeks service connection for hearing loss. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The evidence of record contains a current diagnosis of bilateral hearing loss which meets the criteria for a hearing disability for VA purposes. 38 C.F.R. § 3.385. The August 2016 VA examination indicates the Veteran’s Maryland CNC test scores were 70 percent in the right ear and 60 percent in the left ear. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 70 75 75 LEFT 35 50 65 80 85 An in-service injury or event (i.e. noise exposure) is also established. There are no audiograms from the Veteran’s first period of service from March 1951 to March 1955. The Veteran’s DD Form 214 indicates that he worked as a sheet metal worker during this time in service. The Veteran’s military occupational specialist (MOS) is consistent with noise exposure. Thus, in-service noise exposure during the Veteran’s first period of active duty is shown. The Veteran’s Reserve records include various audiograms and demonstrate that hearing loss was shown during Reserve service. At a March 1981 audiological evaluation, pure tone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 50 60 LEFT 5 5 5 45 30 A May 1987 audiogram shows pure tone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 55 65 LEFT 20 20 15 60 60 An annotation on the report indicates the Veteran had a history of high frequency hearing loss since 1982. The Veteran had a second period of active duty service from February 1991 to July 1991. His DD Form 214 indicates that he was recalled to active duty for Desert Shield/Storm. The Veteran’s MOS indicates he worked as a waterfront superintendent. Noise exposure is also conceded for the Veteran’s second period of active duty from February 1991 to July 1991. The Veteran underwent audiometric testing in November 1990, shortly after receiving orders for this period of special active duty for training with pay. At this entrance examination, his pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 65 70 LEFT 25 20 30 70 65 At the Veteran’s June 1991 audiological examination for retirement, pure tone threshold, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 65 70 LEFT 25 20 30 70 65 The remaining question is whether the Veteran’s current hearing loss is related to noise exposure during his periods of active service. At the August 2016 VA audiological examination an unfavorable opinion was provided on the question of nexus. The examiner acknowledged that the Veteran was exposed to noise in service, but noted that hearing loss was first shown on an audiology examination in February 1982. The examiner explained that in-service noise exposure did not necessarily mean the Veteran’s current hearing loss was caused by the noise exposure in the first duty period, because there is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. The examiner further indicated that although there were no definitive studies, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner opined that given the available studies without a separation audiogram from the active duty period, it could not be determined if the Veteran had hearing loss at the time of his separation that was related to the active duty noise exposure. The examiner concluded that it was not at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss was caused by or a result of an event in military service. The examiner further indicated that for the second active duty period the Veteran had hearing loss prior to the start of that period, specifically noting the audiogram examination findings in November 1990. The examiner concluded that hearing loss was less likely than not aggravated beyond normal progression since there were no changes to the Veteran’s hearing in the second active duty period. The examiner explained that there were no significant hearing threshold shifts for either ear when compared to the November 1990 audiogram examination during the active duty period. In a January 2017, the Veteran was seen in consultation by Dr. M. (a private licensed otolaryngologist). The Veteran reported to Dr. M. that he first noticed hearing loss sometime in the 1980’s, and that it had gradually worsened over time. The Veteran reported that while he was in Korea, he worked on an aircraft carrier and was exposed to loud noises, including gunfire. Dr. M. conducted an audiometric evaluation that showed bilateral moderate sloping toward severe sensorineural hearing loss with speech discrimination of 76 percent on the right and 60 percent on the left. Dr. M. assessed hearing loss due to noise exposure and presbycusis. He opined that given the Veteran’s high-frequency hearing loss and the degree of noise that he was exposed to during the Korean conflict, within a reasonable degree of medical probability the Veteran’s hearing loss in the high frequencies began during the Veteran’s first period of active duty service. In a supplemental January 2017 opinion, the VA examiner reviewed the additional medical evidence and medical opinion by Dr. M. The examiner indicated that there was no new objective evidence from service to change the original VA medical opinions provided. The examiner opined that the private opinion lacked an objective or scientific basis to provide the nexus opinion. The examiner further indicated that Dr. M. also attributed the Veteran’s hearing loss to presbycusis (age related hearing loss). The competent and persuasive VA medical opinion is sufficient evidence that the Veteran’s current hearing loss is not related to either period of service. That is, hearing loss was not incurred during his first period of active service, and a hearing loss disability which preexisted his second period of active service was not aggravated therein. The Board has considered the evidence of record, including the Veteran’s assertions and the service records, and the medical opinions. The Board finds that the opinions provided in the August 2016 VA examination and January 2017 supplemental report, which are against a nexus finding, are most persuasive. The VA opinions were based on knowledge of the Veteran’s in-service and post-service history, clinical presentation, and the examiner’s medical training. It was also supported by a sufficient rationale. The Board acknowledges the private medical opinion by Dr. M. However, the opinion is speculative and does not provide sufficient explanation to support a nexus between the Veteran’s noise exposure in Korea and current hearing loss. Thus, it lacks sufficient reasoning for the Board to grant the Veteran’s claim for service connection. The Board further finds that a hearing loss disability pre-existed the second period of active duty as hearing loss was noted during the November 1990 entrance examination. Hearing loss was also shown on various audiograms prior to 1991. Further, the Veteran also reported to Dr. M. that he first noticed hearing loss sometime in the 1980’s, and that it had gradually worsened over time. The VA opinion establishes that this pre-existing disability was not aggravated during service. The opinion is probative for the same reasons as noted above. There is no competent medical evidence to the contrary. The Board acknowledges the January 2017 report and consultation by Dr. M.; however, his opinion is limited to the Veteran’s first period of active duty service. The Board has considered the Veteran’s statement that he believes his hearing loss is related to acoustic trauma during active duty and reserve duty. The Veteran’s lay opinion that his current hearing loss is related to noise exposure in service is not competent. This is a complex medical question for which medical expertise is required, particularly in light of his pre-existing presbycusis. See generally Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel