Citation Nr: 18144779 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 17-65 667 DATE: October 25, 2018 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for eye disability due to VA medical treatment is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to a compensable rating for infectious hepatitis is denied. FINDINGS OF FACT 1. The probative evidence does not show that the Veteran’s eye condition is an additional disability caused by carelessness, negligence, lack of proper skill, or error in judgment on VA’s part in furnishing the care, treatment, or examination. 2. The Veteran’s hearing loss level for the right ear is no greater than level I hearing loss and in the left ear is no greater than level XI. 3. The Veteran’s infectious hepatitis is asymptomatic. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for an eye condition have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 3. The criteria for entitlement to a compensable evaluation for infectious hepatitis have not been satisfied. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.112, 4.114, DC 7345, 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1955 to October 1956. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the November 2017 Statement of the Case. The Board has reviewed these records and observes that they are not relevant to the issues of § 1151 compensation for an eye condition and increased ratings for bilateral hearing loss and infectious hepatitis. 1. Entitlement to service connection for eye condition Under 38 U.S.C. § 1151, 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 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. 38 U.S.C. § 1151. In determining whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran’s 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 the 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). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). In this case, the Board notes that the Veteran does not contend that any VA medical treatment or procedure took place without his informed consent, nor does any pertinent and relevant evidence suggest any evidence of absence of informed consent for a particular procedure. Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Analysis In June 1995, the Veteran underwent a cataract operation. The Veteran stated that the procedure was unsuccessful, and he has never been able to see out of the right eye again. The Veteran seeks compensation for his eye condition under the provisions of 38 U.S.C. § 1151. On November 4, 2014, the Veteran was afforded a VA examination to determine whether a VA treatment facility’s negligence caused the Veteran’s eye condition. The examiner stated that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. After reviewing the medical records, the examiner stated that the Veteran’s surgeries were performed at Stanford and UCSF, not at VA. The examiner saw no inappropriate treatment or neglect. On November 6, 2014 the agency of original jurisdiction (AOJ) noted that the Veteran had indeed had surgeries at VA facilities, and on November 12, 2014 the AOJ obtained an addendum opinion to determine whether a VA treatment facility’s negligence caused the Veteran’s eye condition. After reviewing the Veteran’s treatment records, the examiner concluded that though unfortunate, he did not see evidence of negligence in how the Veteran’s case was managed. The examiner stated that over the years, the Veteran had multiple ocular procedures on both eyes. The Veteran is blind in the right eye. He had multiple glaucoma surgeries as well as a cataract surgery which was complicated. During the cataract surgery, the Veteran had loss of vitreous and a sulcus lens was placed. The lens then became displaced and had to be removed with another surgery. During all of this, the intraocular pressure became high, and the Veteran had to undergo further interventions for glaucoma. As a result, the cornea decompensated and eventually the eye became blinded. The examiner stated that multiple complications occurred, but they were addressed appropriately. The examiner further stated that all of the complications are known possible complications of surgery. The Board notes that the Veteran did not have blindness in the right eye prior to his surgeries. As such, the Board finds that the evidence of additional disability prong and proximate cause prong of the criteria for entitlement to benefits under 38 U.S.C. § 1151 are met. The November 12, 2014 VA examiner stated that he did not see evidence of negligence in how the Veteran’s case was managed. He stated that during the Veteran’s cataract surgery, complications occurred; however, they were addressed appropriately. The examiner saw no evidence of improper care. Therefore, the VA examination and opinion are against any finding of carelessness or negligence on the part of VA medical personnel, and there is no evidence to the contrary. As such, the focus here must be on the question of whether or not it was reasonably foreseeable that the Veteran would develop blindness as a result of his surgeries. The November 12, 2014 VA examiner stated that during the Veteran’s cataract surgery, he had loss of vitreous and a sulcus lens was placed. The lens then became displaced and had to be removed with another surgery. During all of this, the intraocular pressure became high, and the Veteran had to undergo further interventions for glaucoma. As a result, the cornea decompensated and eventually the eye became blinded. The examiner further stated that all of the complications are known possible complications of surgery. The Board notes that the Veteran has not identified or submitted any evidence which supports granting his claim. As such, the Board finds that granting the claim is not warranted. As to the Veteran’s assertions of VA negligence, while he is competent to report observable symptomatology, he lacks the medical training and expertise necessary to determine whether he sustained additional disability due to the medically appropriate standard of care. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d. 1372 (Fed. Cir. 2007). In sum, the evidence is insufficient to show that the Veteran has an additional disability that is proximately due to the carelessness, negligence, lack of proper skill, error in judgment, or similarly instance of fault on the part of VA. Therefore, entitlement to compensation benefits based on 38 U.S.C. § 1151 is not warranted. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran’s condition. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss The Veteran’s service-connected bilateral hearing loss is rated under 38 C.F.R. § 4.85, DC 6100. The Rating Schedule, 38 C.F.R. § 4.85, DC 6100, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Scores are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). Analysis The Veteran contends that his bilateral hearing loss is more severe than the 10 percent rating depicts. In October 2014 and February 2015, the Veteran was afforded a VA audiological examination by the same audiologist, to determine the severity of his bilateral hearing loss. Puretone threshold levels in decibels for both exams were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 50 50 LEFT 105 105 105 105 105 The average puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) for the right ear was 48 and 105 for the left ear. Speech recognition scores based on the Maryland CNC Test in 2014 and 2015 were 100 and 96, respectively for the right ear. Regarding the left ear, the examiners stated that the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. Testing revealed sensorineural bilateral hearing loss at 500-4000 Hz. The Veteran’s hearing loss did not have an impact on his ability to work. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran’s 2014 and 2015 right ear numeric designation was level I. The Board recognizes that the Veteran’s left ear puretone threshold levels at the 1000-4000 Hz are 55 dB or greater, i.e., exceptional pattern of hearing loss. 38 C.F.R. § 4.86. As noted above, the average puretone threshold findings at 1000, 2000, 3000, and 4000 HZ for the left ear was 105. When assessing hearing loss based on puretone threshold alone, the Veteran has level XI hearing loss in the left ear. The Board notes that such a degree of hearing loss warrants a 10 percent evaluation under Table VII. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) the United States Court of Appeals for Veterans Claims held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Here, the October 2014 and February 2015 VA examiners noted that the Veteran’s hearing loss has no functional impact on ordinary conditions of daily life, including ability to work. The Board has considered the Veteran and his representative’s statements and finds that they are both competent and credible to report the functional effects of the Veteran’s condition. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on audiometric test results, including puretone thresholds and speech recognition scores. See Lendenmann, supra. The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board concludes that the preponderance of the evidence is against finding that a 10 percent rating for bilateral hearing loss is warranted. Therefore, the claim must be denied. 3. Entitlement to a compensable rating for infectious hepatitis The Veteran’s infectious hepatitis is rated under DC 7354-7345. The Board observes that VA revised the criteria for diagnosing and evaluating the liver disabilities effective July 2, 2001. See 66 Fed. Reg. 29488. (May 31, 2001). Thus, the Veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria; only the former criteria are to be applied for the period prior to the effective date of the new criteria. See VAOPGCPREC 3-2000. Under the former criteria, a noncompensable rating under code 7345 was warranted for healed infectious hepatitis that is non-symptomatic. A 10 percent evaluation under this code required that the disease be productive of demonstrable liver damage with mild gastrointestinal disturbance. The revised regulations added a new DC, 7354, which specifically governs the evaluation of hepatitis. Pursuant to this regulation, when this condition is non-symptomatic, a noncompensable rating is warranted. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. 38 C.F.R. § 4.114, DC 7354. For purposes of evaluating conditions under DC 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See 38 C.F.R. § 4.114, DC 7354, Note (2). Finally, sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.114, DC 7354, Note 1 (adding that VA is not to use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae). The Veteran contends that his infectious hepatitis is worse than the current rating depicts. In October 2014, the Veteran was afforded a VA examination to determine the severity of his infectious hepatitis. The examiner confirmed the Veteran’s hepatitis A and C diagnoses. The examiner stated that the Veteran did not require continuous medication for control of his liver conditions, and at the time of the exam, he did not have signs or symptoms attributable to chronic or infectious liver diseases. The examiner also noted that the Veteran did not have any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions during the past 12 months. The Veteran did not have cirrhosis of the liver, biliary cirrhosis, cirrhotic phase of sclerosing cholangitis, liver transplant, and/or liver injury. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms, to include scars. The examiner noted that the Veteran’s hepatitis A has been stable. There were no complications or residuals, no treatment due to history of hepatitis A. Additionally, the Veteran’s hepatitis C has also been stable. His liver function tests were in good range. The examiner noted that the Veteran’s 1956 liver biopsy was within normal limits. In July 1999, his hepatitis C virus (HCV) was reactive and, in December 2002, converted by itself to non-reactive. The Veteran’s January 2007, March 2003, and February 2014 tests were also non-reactive. The Veteran never saw a gastrointestinal/liver specialist. A September 2010 endoscopic ultrasound showed normal esophagus, duodenum, and gastritis. No additional findings were noted. The Veteran’s liver condition did not impact his ability to work. In March 2015, the Veteran was afforded another VA examination to determine the severity of his infectious hepatitis. The examiner confirmed the Veteran’s hepatitis A and C diagnoses; however, he also stated that it appears that the Veteran is service connected for only hepatitis A. However, the examiner noted the 2014 VA examiner’s note stated that the Veteran had no liver cirrhosis and had not been treated for HVC. The Veteran stated that he experienced some right upper quadrant discomfort several times a week, which maybe, though unlikely related to distant history of hepatitis A. The Veteran also reported nausea and malaise, which are likely related to his chronic renal failure on dialysis secondary to diabetes, an unrelated condition. However, the examiner also noted that the Veteran did not have any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions during the past 12 months. Additionally, the Veteran did not require continuous medication for control of his liver conditions, and at the time of the exam, he did not have signs or symptoms attributable to chronic or infectious liver diseases. He did not have cirrhosis of the liver, biliary cirrhosis, cirrhotic phase of sclerosing cholangitis, liver transplant, and/or liver injury. The examiner stated that the Veteran’s hepatitis A has not recurred and is asymptomatic. There are no long-term residuals from the hepatitis A. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms, to include scars. The Veteran’s liver condition did not impact his or her ability to work. As noted above, a 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. 38 C.F.R. § 4.114, DC 7354. During VA examinations, the examiner noted that the Veteran did not exhibit signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. During his 2015 examination, the Veteran stated that he had right upper quadrant discomfort several times a week, nausea, and malaise. However, the record does not reflect that he experienced incapacitating episodes due to the liver conditions during the past 12 months. Additionally, the VA examiner attributed the Veteran’s fatigue, nausea, and malaise to the Veteran’s chronic renal failure on dialysis secondary to diabetes. Moreover, the Veteran did not have signs or symptoms attributable to chronic or infectious liver diseases. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s infectious hepatitis. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions and the evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record, to include the VA examiners’ opinions and treatment records. Therefore, based on the evidence of record, the Board finds that the preponderance of the evidence is against a compensable rating for infectious hepatitis, the benefit of the doubt rule is not applicable. See generally Ortiz v. Principi, 274 F.3d. 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel