Citation Nr: 18142814 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 11-10 182 DATE: October 17, 2018 ORDER New and material evidence has not been received to reopen the claim for entitlement to service connection for chronic myeloid leukemia. Entitlement to compensation for right ear hearing loss under the provisions of 38 U.S.C. §1151, as a result of VA treatment in October 2006, is denied. Entitlement to compensation for tinnitus under the provisions of 38 U.S.C. §1151, as a result of VA treatment in October 2006, is denied. FINDINGS OF FACT 1. An unappealed September 2006 Board decision denied service connection for chronic myeloid leukemia. 2. Evidence received since the September 2006 Board decision is cumulative or redundant of evidence at the time of the prior decision, and does not raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for chronic myeloid leukemia. 3. The Veteran developed additional disabilities, right ear hearing loss and tinnitus, following October 2006 VA hospitalization and treatment, and the evidence demonstrates that these additional disabilities were not incurred as a result of VA hospitalization or treatment. CONCLUSIONS OF LAW 1. The September 2006 Board decision denying the claim of entitlement to service connection for chronic myeloid leukemia is final. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for chronic myeloid leukemia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for compensation under 38 U.S.C. § 1151 for right ear hearing loss are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. § 3.361. 4. The criteria for compensation under 38 U.S.C. § 1151 for tinnitus are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1968 to December 1968 and from February 1977 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in March 2014, January 2015, December 2016, and June 2017. New and Material Evidence New and material evidence has not been received to reopen the claim for entitlement to service connection for chronic myeloid leukemia. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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). In a September 2006 decision, the Board denied the Veteran’s claim for service connection for chronic myeloid leukemia based on lack of evidence relating his leukemia presumptively or directly to active duty. The Veteran did not request reconsideration of the Board decision or appeal that decision to the United States Court of Appeals for Veterans Claims (Court). Thus, the September 2006 Board decision is final. 38 U.S.C. §§ 7103, 7104(b); 38 C.F.R. § 20.1100. Evidence received since the September 2006 Board decision does not constitute new and material evidence in regards to the Veteran’s leukemia claim. Specifically, in deciding the merits, the Board previously considered the Veteran’s service treatment records (STRs) and post-service treatment records, including the first diagnosis of the disease by a physician in 2001, in its conclusion that the Veteran’s chronic myeloid leukemia did not have its onset in service or was otherwise related to service (including the Veteran’s claim that he was exposed to chemicals that caused his leukemia), or manifested to a compensable degree within one year of separation from service. The RO received the instant petition to reopen the claim in April 2010. The evidence received since the September 2006 denial includes the Veteran’s VA treatment records, private treatment records, an August 2017 Disability Benefit Questionnaire (DBQ), and STRs received in April 2014. VA treatment records, private treatment records, the August 2017 DBQ, and STRs do not show the Veteran’s leukemia was incurred in or otherwise related to service or that it manifested to a compensable degree within one year of separation from service. To the extent the Veteran asserts that his chronic myeloid leukemia is due to active service, such statements are cumulative and redundant of evidence already of record. Therefore, the new evidence does not create a reasonable possibility of substantiating the Veteran’s claim nor does it trigger VA’s duty to assist by obtaining medical opinions or an examination; and therefore, the new evidence is not material. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the threshold has not been met and the previously denied claim of entitlement to service connection for chromic myeloid leukemia is not reopened because new and material evidence has not been submitted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 1151 Eligibility 1. Entitlement to compensation for right ear hearing loss under the provisions of 38 U.S.C. § 1151, as a result of VA treatment in October 2006, is denied. 2. Entitlement to compensation for tinnitus under the provisions of 38 U.S.C. § 1151, as a result of VA treatment in October 2006, is denied. The Veteran asserts that his right ear hearing loss and tinnitus disabilities are due to his VA hospital stay in October 2006 and that if VA had provided him with medical care when he first complained of ringing in his ears he would not be deaf in his right ear. See March 2010 Informal Claim, July 2010 Notice of Disagreement (NOD), and April 2011 VA Form 9. In order to warrant compensation under 38 U.S.C. § 1151 there must be a qualifying additional disability which was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the additional 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. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. Further, in order for a disability to qualify for compensation under 38 U.S.C. § 1151, the disability must not have been the result of the veteran’s willful misconduct. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these three (3) factors must be shown: (1) additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. In determining whether a veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Here, prior to October 2006 VA hospital care, the Veteran had no history of difficulty hearing or ringing in his ears. See March 2006 VA treatment record. The Veteran was admitted to a VA hospital for stabilization of his leukemia on October 13, 2006, and VA treatment records show no complaints of hearing loss or tinnitus at admission. On October 24, 2006, the Veteran reported ringing in his ears. During a follow-up leukemia appointment on October 30, 2006, the Veteran reported ringing in right ear since discharge from the hospital. Physical examination revealed a small amount of clotted blood in the external auditory canal due to scratching of the ear by the Veteran. No infection on inspection of the ear was found, and the Veteran was reassured that the ringing would stop once his white blood count dropped. The Veteran was also prescribed hydroxyurea medication for his leukemia and it was noted that his white blood cell count was decreasing. See October 2006 and November 2006 VA treatment records. In January 2007, the Veteran reported chronic ringing and pain in his right ear. In February 2007, the Veteran reported ringing in his ear for the past four months for which the etiology was noted as unclear. A February 2007 hearing test showed reduction in sensitivity in the right ear. See January 2007 and February 2007 VA treatment records. Follow-up private treatment records noted a history of ringing in recent weeks with decreased hearing in the Veteran’s right ear. The records described the condition as “sudden onset of right sided hearing loss with tinnitus.” See February 2007 and March 2007 private treatment records. An April 2007 VA treatment record noted the Veteran had developed ringing with loss of hearing in his right ear while hospitalized in October 2006. Between September 2007 and March 2010 VA treatment records show the Veteran’s continued complaints of ringing and hearing decreased in his right ear. In August 2010, a VA audiological examination revealed the Veteran’s right ear was “essentially dead” and in April 2014 the Veteran was described as having “profound permanent hearing loss” in his right ear. The Board emphasizes, however, that merely showing that the Veteran received treatment and that the Veteran has additional disabilities does not establish cause. 38 C.F.R. § 3.361(c)(1). A review of the record shows that the Veteran’ right ear hearing loss and tinnitus were not the result of VA hospital care or treatment. In support of this conclusion, the Board defers to the May 2015/August 2017 VA examiner’s findings. Specifically, the May 2015 VA examiner, after a thorough and detailed review of the claims file, opined that no carelessness, negligence, lack of proper skill, error in judgement, or fault on the part of the VA in providing treatment to the Veteran in October 2006 caused his right ear hearing loss or tinnitus. First, she stated that current internet research does not indicate ototoxicity to be associated with Gleevec (leukemia medication) and that less than one percent have confirmed incidences of hearing loss with use of the drug and hearing loss is extremely rare in patients with chronic myeloid leukemia. Additionally, she noted the Veteran’s history of chronic myeloid leukemia, treatment of said disease, and non-compliance on the part of the Veteran with the prescribed treatment and indicated that given the continual monitoring by his providers beginning in 2001, as well as the subsequent treatment regarding his sudden hearing loss that no fault on the part of the VA occurred. Moreover, she noted that in cases of sudden sensorineural hearing loss, etiology is often unknown, and therefore, even in cases in which treatment was administered within the first 24-48 hours recovery of lost hearing is rare. In the August 2017 addendum opinion, the May 2015 VA examiner reiterated her finding that hearing loss and tinnitus are not listed as side effects of Gleevec (leukemia medication) and that there is no substantial medical evidence to associate Gleevec with hearing loss or tinnitus. Moreover, she stated given that hearing loss and tinnitus were not noted upon the Veteran’s admission to the hospital in October 2006 as well as no significant research linking tinnitus and hearing loss to the course of treatment for leukemia, she opined that the Veteran’s hearing loss and tinnitus is less likely than not (less than 50% probability) caused by the chosen course of treatment documented by VA records. Additionally, she highlighted other potential etiologies for hearing loss and tinnitus including disruption in blood flow to the cochlea, autoimmune disorder, viral infections, and blow to the head, but found no to provide a reasonable link between the Veteran’s hearing loss and tinnitus to any of these items and therefore, opined that his right ear hearing loss and tinnitus are of an unknown etiology. Lastly, although she also opined that VA medical staff could not have been reasonably expected to foresee hearing loss and tinnitus as an expected consequence of the treatment provided given the documentation noted regarding the Veteran’s symptoms upon admission and during the course of his treatment, this opinion on proximate causation was not necessary, as she already determined actual causation by VA hospitalization or treatment had not been established. The Board finds both opinions highly probative as the examiner thoroughly reviewed the Veteran’s claims file and medical history and provided opinions that were adequately supported by detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. There is no competent opinion to the contrary. To the extent, the Veteran asserts that his right ear hearing loss and tinnitus were caused by the October 2006 VA hospital care or lack of treatment thereafter, the Board finds the above medical opinions more probative because questions of actual causation fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his assertions do not constitute competent medical evidence. The Board notes the other VA medical opinion of record rendered in December 2016 did not address the appropriate questions on causation or proximate causation, therefore the opinion is inadequate (although the examiner noted nothing improper about VA’s history of treatment, including on October 13, 2006, and that the Veteran had a history of not cooperating with the optimum treatment). Further, in a May 2017 Appellant Post- Remand Brief, the Veteran’s representative asserted that the December 2016 VA examination report is inadequate because it was conducted by an examiner (a family medicine physician) who lacked the expertise necessary to comment on “oncologic or ENT disorders” in evaluating the Veteran’s hearing loss and tinnitus disabilities. He also argued that an independent medical opinion is needed and the Board’s December 2016 remand directives were not fulfilled. For reasons noted above, the Board has already determined the examination to be inadequate, however the May 2015 and August 2017 opinions from a VA audiologist fulfill VA’s duty to provide adequate examinations. Moreover, none of the Board’s prior remand directives requested opinions specifically from an oncologist or Ear, Nose, and Throat specialist and the combination of both VA opinions fulfill the remand directives. Lastly, the Federal Circuit has affirmed the presumption of competency for VA medical examiners. See Mathis v. McDonald, 643 Fed. Appx. 968 (Fed. Cir. 2016). As such, absent a showing of why the chosen examiners were not qualified through education, training, or experience to offer medical diagnoses, statements, or opinions, the Board does not find any basis to conclude the examiners were incompetent such that a new examination or outside medical opinion is warranted. Thus, VA’s duty to assist has been fulfilled. Accordingly, the preponderance of the evidence demonstrates that the Veteran is not entitled to compensation under 38 U.S.C. § 1151, for his right ear hearing loss or tinnitus disabilities as the Veteran’s October 2006 VA hospital care and subsequent treatment did not result in his right ear hearing loss or tinnitus. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. As there is no probative evidence that the Veteran’s right ear hearing loss was caused by VA hospital care or treatment, the Board need not reach the question of whether the proximate cause of his right ear hearing loss or tinnitus was: (A) 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 (B) an event not reasonably foreseeable (though, as indicated above, available opinions of record addressing these elements are against the claim). Accordingly, the claims are denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel