Citation Nr: 1806649 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-13 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral knee disabilities. 3. Entitlement to compensation under 38 U.S.C. § 1151 for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active military service from July 1962 to July 1965. These matters come before the Board of Veterans' Appeals (Board) from March 2012, October 2013, and April 2016 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. In December 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The Board remanded the issues of whether there is new and material evidence to reopen a claim for service connection for bilateral hearing loss and for compensation under 38 U.S.C. § 1151 in November 2015. In the interim, the Veteran perfected an appeal as to the issue of whether there is new and material evidence to reopen a claim for service connection for right and left knee disabilities. FINDINGS OF FACT 1. The claim for service connection for bilateral hearing loss was previously denied in a July 2008 rating decision. The Veteran did not appeal the decision and it is therefore final. 2. Evidence added to the record since the July 2008 denial is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim. 3. The claim for service connection for right and left knee disabilities was previously denied in a July 2008 rating decision. The Board denied the claim to reopen in a November 2015 decision. The Veteran did not appeal these decisions and they are therefore final. 4. Evidence added to the record since the November 2015 denial is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim. 5. An acquired psychiatric disorder related to radiation treatment for prostate cancer was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The July 2008 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7104 (b) (2012); 38. C.F.R. § 20.1104 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The November 2015 Board decision that denied the claim to reopen the previously denied claim for service connection for a right and left knee disability is final. 38 U.S.C. § 7104 (b) (2012); 38. C.F.R. § 20.1100 (2017). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for right and left knee disabilities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 5. The criteria for compensation under 38 U.S.C. § 1151 for an acquired psychiatric disorder related to radiation treatment for prostate cancer have not been met. 38 U.S.C. § 1151 , 5103, 5107 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New & Material Evidence A claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Bilateral Hearing Loss The RO denied the Veteran's claims of entitlement to service connection for bilateral hearing loss in a July 2008 rating decision. The Veteran did not appeal the decision and thus the decision is final. 38 U.S.C. §§ 7103; 38 C.F.R. § 20.1103. At the time of the July 2008 decision, the Veteran had asserted that he experienced hearing loss in service following exposure to gunfire and other loud noises without the use of hearing protection, and had suffered from hearing loss since service. A May 2008 VA examiner had reviewed the claims file, to include the service treatment records, and determined that it was less likely than not that the Veteran's hearing loss was related to his service. The examiner explained that, while nonorganic hearing loss was demonstrated bilaterally, hearing loss was not demonstrated during service or on discharge from service, and if hearing loss had occurred during service, it would have been revealed at the time of discharge. Since filing his claim to reopen, the Veteran contends that his service treatment records showed hearing loss on separation, and that he is not precluded from obtaining service connection for hearing loss based upon a finding of no hearing loss on separation from service. He has put forth the same arguments with regard to the onset of hearing loss in service. In February 2016, the RO obtained an additional medical opinion on the matter. The VA examiner was in agreement with the opinion obtained in 2008, concluding that it was less likely than not that the Veteran's current hearing loss was caused or aggravated by his service. The examiner took into consideration the Veteran's contentions as outlined above, but explained that the Veteran's separation examination audiogram showed hearing sensitivity that was within normal limits. The examiner explained that a 2005 landmark medical study had shown no scientific basis for delayed onset noise-induced hearing loss where hearing was within normal range at service discharge. The Board has reviewed the file, but finds that new and material evidence has not been submitted to reopen the Veteran's claim. The Veteran has not provided new medical evidence or alternative contentions that would meet the low threshold as outlined in Shade. The Veteran's claim was previously denied because the evidence did not show a medical link between his hearing loss and his service, and such has not been shown since the Veteran filed his claim to reopen. Rather, the new evidence, a VA examination, only confirms the previous opinion obtained in 2008. The Board also finds that the duty to assist has not been triggered. Therefore, as the evidence of record dated since the filing of the Veteran's claim to reopen is both cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim, the claim to reopen the previously denied claim for service connection for bilateral hearing loss must be denied. Knee Disabilities The Veteran's claim to reopen the previously denied claim for service connection for right and left knee disabilities was denied by a Board decision dated in November 2015. The reasons for the denial were set forth in that decision in detail. Briefly, the Board found that the new and material evidence standard had not been met because evidence had not been submitted to demonstrate that a current knee disability was related to service. The diagnosis of the Veteran's knee disabilities had changed, but such did not demonstrate or suggest a nexus to service. The Veteran did not appeal the 2015 Board decision, and it therefore final. The Veteran filed his claim to reopen in March 2016. The only evidence submitted since that time are statements as to the etiology of his knee disability, as had been previously submitted. Thus, after a review of the record, the Board finds that the evidence of record dated since the filing of the Veteran's claim to reopen is both cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. Therefore, the claim to reopen the previously denied claim for service connection for right and left knee disabilities must be denied. 1151 The Veteran contends that he suffers from a psychiatric disorder that was caused or aggravated by treatment her received at a Department of Veterans Affairs Medical Center. Specifically, he contends that while he was receiving radiation treatment for his prostate cancer, a radiation technician treated him in an unprofessional manner by making unwanted or satanic gestures towards him. He states that this incident had a profoundly negative impact on his mental health and he feels that the gestures were related to his race and medical status as a cancer patient. The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances 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. 38 U.S.C. § 1151. The regulations provide that benefits under 38 U.S.C. § 1151 (a), for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361 (b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical treatment caused the Veteran's additional disability; 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, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361 (d) & (d)(1). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b). 38 C.F.R. § 3.361 (d)(1)(ii). 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 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). In this case, an October 2011 psychology outpatient treatment record reflects the Veteran's description of the event that occurred during his radiation treatment. At the time, he was being treated for an adjustment reaction related to his diagnosis of prostate cancer, with symptoms of mild depression and anxiety. The treatment records also reflect that in November 2011, the Veteran was flagged as a patient that represented a significant risk for future disruptive care in the radiation therapy clinic due to his actions towards the VA employee who administered his treatment. In October 2013, a VA examiner reviewed the file and determined that the Veteran's mental health issues far outweighed the validity of his claimed additional disability related to the radiation treatment situation described. The examiner found it to be unclear what the satanic gesture was exactly, the mistreatment was not clearly defined, and there was no evidence in the treatment records to support the Veteran's contention of mistreatment. The examiner also noted that the Veteran's report of mistreatment changed after he filed his claim. The examiner therefore found that it was less likely than not that the Veteran suffered from his claimed disability as a result of VA treatment, or that an additional disability resulted from negligence on the part of the VA. In February 2016, the Veteran underwent a VA examination at which time he further described the gesture made by the radiation technician. The examiner conducted mental status examination and thorough psychiatric testing, but concluded that the Veteran did not suffer from an additional psychiatric disability related to or aggravated by the described incident. The examiner considered the treatment records as noted in the Board's 2015 remand, as well as the remainder of the pertinent record, and determined that the Veteran did not report symptoms that would rise to the level of a diagnosable psychiatric disorder. While he was upset about the situation that occurred, it was not causing any symptoms that were disrupting psychosocial functioning to lead to a diagnosis. Instead, his symptoms were transient and expectable reactions to a psychosocial stressor. In this case, based upon the above VA examination opinions and review of the record, the Board finds that preponderance of the evidence weighs against a finding that the Veteran suffers from an additional disability related to the incident reported. The Board acknowledges the Veteran's assertion that he suffers from a psychiatric disorder due to treatment received as the VA. The Board acknowledges that the Veteran is competent to describe symptoms capable of lay observation, such as feeling depressed or anxious. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). He is not competent, however, to offer a medical diagnosis or etiological opinion in this case. In that regard, the Board finds that his statements are outweighed by the December 2016 VA examiner's opinion that there is no additional disability stemming from treatment received at the VA, for the reasons explained above. Given the Board's finding that the Veteran does not suffer from an additional disability related to the described incident, the claim for compensation under 38 U.S.C. § 1151 cannot prevail, and therefore must be denied. ORDER The claim to reopen the previously denied claim for service connection for bilateral hearing loss is denied. The claim to reopen the previously denied claim for service connection for right and left knee disabilities is denied. Compensation under the provisions of 38 U.S.C. § 1151 for an acquired psychiatric disorder related to radiation treatment for prostate cancer at the VA must be denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs