Citation Nr: 20072883 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 12-30 616 DATE: November 12, 2020 ORDER Compensation under 38 U.S.C. § 1151 for right ear hearing loss as a result of surgery performed at the VA Medical Center (VAMC) in Buffalo, New York in August 2009 is denied. FINDING OF FACT The Veteran’s additional right ear hearing loss was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the August 2009 surgical procedure on the right ear, which was performed with his informed consent, and was not proximately caused by an event not reasonably foreseeable as a result of that procedure. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right ear hearing loss have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in April 2014 and November 2016 for further development, and denied it in a June 2018 decision. In an August 2019 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) and remanded the matter for action consistent with the terms of the JMR. Specifically, the parties to the JMR, agreed that there had not been substantial compliance with the Board’s prior remand directives. The Board subsequently remanded the matter in January 2020. The Veteran testified at a hearing before the undersigned in July 2013. A transcript of the hearing is of record. Compensation Under 38 U.S.C. § 1151 The Veteran seeks compensation under 38 U.S.C. § 1151 for additional right ear hearing loss resulting from an August 2009 operation at the Buffalo VAMC consisting of a right middle ear exploration. For the following reasons, the Board finds that the criteria for compensation under 38 U.S.C. § 1151 for the additional hearing loss caused by the operation have not been met. A. Law Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran’s own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA medical treatment resulted in the veteran’s additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the veteran or, in appropriate cases, the informed consent of his or her representative. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). B. Analysis The VA treatment records show that the Veteran underwent an operation in August 2009 at the Buffalo VAMC consisting of a right middle ear exploration. The surgery was performed because he had a conductive hearing loss that was possibly due to otosclerosis. More specifically, in January 2007, the Veteran reported a ten-year history of difficulty hearing out of his right ear. An audiogram was positive for mixed etiology, with marked conductive pathology. The Veteran was seen for an otolaryngology consultation in June 2007. At that time, he reported a long history of gradually progressing hearing loss. He denied a history of ear infection, ear surgeries, head trauma, or significant noise exposure. He denied otalgia, otorrhea, vertigo, or tinnitus. The January 2007 audiogram was reviewed and again noted to show a mixed hearing loss, with conductive hearing loss in the lower pitches. On examination, the ear was devoid of cerumen, the canal skin was intact, ad was normal in appearance. The tympanic membrane was intact without otosclerosis or thickening. The assessment was “mixed hearing loss, consider otosclerosis.” The Veteran was a “possible stapedectomy candidate.” The Veteran had a long discussion with the attending surgeon regarding the risks versus possible benefits of right ear surgery. He was advised to first try a hearing aid. If after the hearing aid he was still interested in surgery, he was advised to call to arrange pre-ops. It was noted that he would need a pre-operative computerized tomography (CT) scan of the temporal bones with contrast. In June 2009, the Veteran was seen for an audiology consultation for reconsideration for a stapedectomy of the right ear. Prior to the surgery, a July 2009 CT scan of the temporal bones was performed which was interpreted as showing a small soft tissue density adjacent to the cochlea on the right, likely representing a small primary cholesteatoma. There was slight retraction of the tympanic membrane on the right. The purpose of the August 2009 surgery was to explore and diagnose the Veteran’s right ear conductive hearing loss, and to treat it by performing a stapedectomy and incudectomy. An August 2009 pre-operative note reflects that the was to undergo ear surgery consisting of a middle ear exploration and stapedectomy. The nature of the procedure and its risks were discussed with the Veteran. These risks included a temporary or permanent loss of hearing, and persistent or recurrent ear drum perforation. The pre-operative note states that the Veteran understood and agreed to the surgery, and had signed a consent for the surgery. The August 2009 “brief operative note” reflects a pre-operative diagnosis of right ear conductive hearing loss and a possible otosclerosis. The post-operative diagnosis was right ossicular chain discontinuity. During the surgery, according to the report, the incus was found to be disarticulated, the stapedial tendon was not attached, and there was a fracture of the posterior crus of the stapes. See August 2009 VA Operative Note. The August 2009 operation report provides further detail, adding that the facial nerve was dehiscent at the posterior edge of the oval window. It notes that the Veteran related a history of being struck by a pipe with loss of consciousness many years earlier. During the surgery, the stapes superstructure was removed. The footplate was left intact. The chorda tympani was preserved intact. The incus was removed. Due to the findings of a disarticulated incus and fractured stapes discovered during the surgery, the stapedectomy was not performed. See February 2010 February 2010 VA Audiology Treatment Note; February 2010 Private Treatment Record; December 2010 VA Treatment Record. Following the surgery, the Veteran experienced a significant decline in his hearing. See February 2010 VA Treatment Record. At the July 2013 Board hearing, he testified that he has since become totally deaf in his right ear. See July 2013 Hearing Transcript. The VA treatment records reflect that in September 2009, the Veteran was seen for a three-week post operation follow-up. He complained of his right ear plugging, and being unable to work. On examination, the tympanic membrane was found to be intact. The surgeon discussed with the Veteran that a fractured incus was found at the time of the middle ear exploration surgery. He was recommended to try hearing aids or see neuro-otology for a total or partial ossicular replacement prosthesis surgery (TORP or PORP) evaluation. The Veteran stated that he would like to discuss the surgery with the expert and have a hearing aid evaluation. The VA treatment records reflect that a few days later, the Veteran spoke by phone with an audiologist regarding possible courses of treatment to pursue. He expressed concern about the difference between TORP and PORP procedures (ossicular reconstruction surgery), and these were verbally explained to him. He expressed that he was “cautious at this time,” as he was disappointed that the incus disarticulation was not identified on the July 2009 CT scan, and not detected until during the surgery. He therefore wanted to defer a decision on amplification or further ossicular repair until after his evaluation with a non-VA ENT specialist. The audiologist confirmed with the Veteran that a referral for such an evaluation had been placed. He declined audiology evaluation and amplification follow-up at this time. A February 2010 private treatment record reflects that the Veteran was seen for a consultation with an ear, nose, and throat (ENT) specialist, E. Diaz-Ordaz, M.D., with a complaint of right-sided hearing loss. The physician reviewed the above history, noting that prior to the August 2009 surgery the Veteran had a presumptive diagnosis of a right ear otosclerosis. A middle ear exploration was performed with a “tentative stapedectomy,” but at the time of the surgery the Veteran was found to have a fractured incus. Since then, the Veteran had experienced a change in his sense of taste which seemed to be improving. On examination, the right external auditory canal was clear. The tympanic membrane was intact and normal appearing. There was no evidence of middle ear disease. A tuning fork test was consistent with right ear conductive hearing loss. The physician’s impression was a conductive hearing loss, secondary to a fractured incus. The physician stated that the Veteran’s worsening hearing after the surgery was most likely due to manipulation of the incus, which created a maximum conductive hearing loss. A March 2010 follow-up letter by Dr. Diaz-Ordaz states that a hearing aid would be of benefit to the Veteran, but if the Veteran did not benefit “100 percent” from the hearing aid, a BAHA surgery was recommended. The Veteran states that he was not informed that the surgery would be exploratory in nature. Rather, according to him, he was told the purpose of the surgery was to restore his right ear hearing by performing the stapedectomy and incudectomy. Further, he states that an incision was made in his right ear drum, but that he was told his right ear drum would only be lifted, not incised. Finally, he states that the bone fracture discovered during the operation should have been detected in the pre-surgery diagnostic testing, such as via CT scan, and thus that the surgery should not have been performed in the first place. See April 2011 Correspondence; October 2012 VA Form 9; May 2011 Statement; July 2013 Hearing Transcript. The Board finds that the August 2009 surgery proximately caused the Veteran’s additional right ear hearing loss, but that there was no VA negligence or fault in performing the surgery, that it was performed with the Veteran’s informed consent, and that the additional hearing loss was not due to an event that was not reasonably foreseeable. Regarding causation, in the February 2010 private treatment record, Dr. Diaz-Ordaz stated that the Veteran’s worsening hearing after the surgery was most likely due to manipulation of the incus, which created a maximum conductive hearing loss. The January 2020 VA medical opinion authored by an otolaryngologist concurs with that finding. The finding of causation by the private ENT specialist and in the January 2020 VA medical opinion, in conjunction with the Veteran’s decline in hearing shortly following the August 2009 surgery, establish that the August 2009 surgery proximately caused the Veteran’s additional right ear hearing loss. The additional loss of the Veteran’s hearing caused by the August 2009 surgery was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the August 2009 surgical procedure. The VA medical opinions, as discussed in detail below, conclude that the procedure was performed properly, that the bone fracture found during surgical exploration would not have been detected prior to the surgery, that the surgery was performed with the Veteran’s informed consent, and that additional hearing loss was a known possible outcome of the procedure. In the September 2012 VA medical opinion, an otolaryngologist stated that he reviewed the records pertaining to the Veteran’s right ear surgery, including clinic notes from the otolaryngology, audiology, and primary care teams, as well as the records of the operation itself and written statements submitted by the Veteran. The physician summarized that the Veteran was found to have a conductive hearing loss prior to the surgery. He was offered right ear surgery with the presumptive diagnosis of otosclerosis. The goal of the surgery was to explore the middle ear. If the surgeons’ diagnosis of otosclerosis was confirmed, the surgeons would place a prosthesis to improve the Veteran’s hearing. However, at the time of the surgery, the Veteran was found to have other problems contributing to his hearing loss. Specifically, he had a disarticulated incus, unattached stapedial tendon, and a fracture along the posterior crus of the stapes. The appropriate reconstruction could not be performed. After the surgery, the Veteran was offered, and attended, an outside consultation with a neuro-otologist. He was offered additional surgery, but chose not to undergo additional surgical treatment. The September 2012 physician noted that one of the Veteran’s concerns was that the surgeon cut his ear drum open during the surgery. The physician stated that the procedure required that the surgeon cut the ear canal and open the middle ear by lifting the tympanic membrane; therefore, the surgery was performed properly. The physician further stated that based on documentation of the informed consent, this information was provided to the Veteran. With regard to the Veteran’s worsening hearing, the physician explained that this would be expected because the ossicles were not able to be reconstructed at the time of the surgery, adding further down in the report that the problems with the ossicles themselves were unexpected findings discovered during the surgery. The physician noted that the management after discovery of these findings seemed to be “very appropriate,” with the Veteran being offered a subspecialist consultation outside VA for reconstruction. The physician observed that if the Veteran chose to undergo additional reconstruction, it is likely his hearing would improve significantly. With regard to informed consent, the physician stated that the risk of hearing loss as a result of the surgery was a problem that had been discussed with the Veteran before the surgery, as well as other possible complications. Thus, it appeared that appropriate pre-operative counseling was provided to the Veteran. The physician concluded that the Veteran’s hearing loss was not caused by or a result of negligence on the part of VA. In April 2014, the Board remanded the claim for a supplemental opinion to address whether VA performed the necessary testing prior to the surgery and the likelihood that such testing could have discovered the Veteran’s pre-existing right ear damage. In September 2014, a supplemental VA medical opinion was provided by a different ENT specialist, as the physician who authored the September 2012 opinion was not available. The September 2014 physician noted that she reviewed the entire electronic claims file and supplemental studies in the Veteran’s VA treatment records, including the pre- and post-operative audiograms, and the CT scan. In response to the question whether a CT scan of the right ear such as the one performed in July 2009, or a separate magnetic resonance imaging study (MRI) could have discovered the damage to the Veteran’s right ear found during the August 2009 surgery, the physician stated that it is less likely than not that a CT scan or MRI could have detected the ear damage. The physician explained that the damage in the Veteran’s right ear included a disarticulated incus, unattached stapedial tendon, and fracture along the posterior crus of the stapes; none of these findings would be seen on an MRI, as an MRI is a poor study to evaluate bone structures. The physician added that in otology, an MRI was most frequently used if there was concern for a tumor of the vestibular nerve, which is a soft tissue structure. With regard to the CT scan, the physician stated that it would be unlikely to discover such damage. The physician explained that the incus and the malleus can be visualized on CT scans, but the stapes is almost never visualized. Moreover, even if the ossicles are visualized, the CT scan would not be able to show any fractures or dislocations due to the size of the bones and the resolution of the scan. Even the best of scans that are available do not have enough detail to evaluate these structures, according to the physician. The physician stated that in most cases, these issues are discovered in the operating room, when there can be direct visualization and palpation of the ossicles. The physician observed that per the records, the reason for performing the CT scan was to evaluate the middle ear for any mass or cholesteatoma prior to middle ear exploration and stapedectomy. Thus, the physician stated, the purpose of the CT scan was not to evaluate for bony pathology, which is best done in the operative room. In response to the question whether any additional non-surgical tests could have been performed prior to the August 2009 surgery that would likely have discovered the Veteran’s right ear damage, the physician stated “No.” The physician noted that sometimes an audiogram can suggest an ossicular disarticulation; the Veteran had a preoperative audiogram which was not suggestive of ossicular disarticulation, but suggestive of otosclerosis, which was the reason the surgery was initially offered. The physician stated that while an audiogram can give the surgeon a sense of what the middle ear pathology might be prior to the surgery, middle ear exploration is the only way to diagnose these issues definitively. In response to the question whether VA medical personnel exercised the degree of skill and care ordinarily required of the medical profession in testing the Veteran for right ear damage prior to initiating and performing the August 2009 procedure, the physician stated, “Yes,” explaining that typically an audiogram alone would be enough to offer surgery to the patient. The physician noted that a CT scan can offer additional information, especially if there is concern that there is another reason for the mixed ear hearing loss, such as a cholesteatoma, as she had noted earlier in the report. The physician again stated that exploring the middle ear is the definitive test for assessment of middle ear pathology. The physician found that that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in not detecting the damage to the Veteran’s ear prior to the August 2009 surgery. In this regard, the physician noted that the appropriate tests were performed (audiogram, CT scan) and evaluated preoperatively. The physician stated that she reviewed the CT scan images, and did not detect any evidence of bony fracture or dislocation. In answer to the question whether the August 2009 surgery would have been appropriate had the damage to the Veteran’s ear been detected beforehand, the physician stated that had there been any evidence of the disarticulation or fracture detected in advance, surgery would have been appropriate, but a different type of surgery. More specifically, rather than a stapedectomy, an ossicular chain reconstruction involving a PORP or TORP would have been appropriate depending on the findings in the operating room. The physician noted that the records showed that a consultation was offered to the Veteran after the August 2009 surgery by a private neuro-otologist for just this procedure. (See September 2009 VA treatment records discussed above.) The physician reiterated that “the CT or audiogram findings would not supersede the operative findings,” explaining that it is very common in ear surgery to expect a certain pathology and find evidence of a different pathology once the middle ear is entered. After the September 2014 opinion was provided, the Board remanded the case for additional records development in November 2016, and instructed that if additional records were added to the claims file, it should be forwarded to the September 2014 physician, or a suitable substitute, for another opinion responding to the Board’s inquiries, if any of the new evidence obtained would change the prior opinions. In a May 2017 opinion, the ENT specialist who provided the September 2014 opinion reiterated that opinion verbatim, noting that the questions presented had already been answered in that prior opinion. The parties to the JMR found that because the May 2017 opinion contained the exact text of the September 2014 opinion, it “appeared that the updated claims file was not considered” by the September 2014 physician or a suitable substitute, as had been instructed in the Board’s November 2016 remand directive. Pursuant to the JMR, the Board remanded the claim in January 2020 with instructions, in relevant part, to have the doctor who provided the September 2014 opinion, or a suitable substitute, consider the evidence added to the file since that opinion, and to discuss the February 2010 private treatment record by Dr. Diaz-Ordaz, and any other pertinent evidence. A new opinion was obtained by an otolaryngologist in January 2020. The opinion notes at the outset that the physician who authored the September 2014 opinion was not available. The January 2020 opinion begins with a detailed review of the pertinent medical history surrounding the August 2009 surgery, as summarized above. In this regard, the physician stated that the Veteran’s VA treatment records and the virtual claims file was reviewed. The physician noted that the Veteran underwent a pre-operative CT scan in July 2009, and that a CT scan can provide information on middle ear pathology such as cholesteatoma, ossicular abnormality, and in some cases, a lucency in the otic capsule bone adjacent to the stapes suggestive of otosclerosis. The physician stated that the July 2009 CT scan had been interpreted as showing a soft tissue density in the right middle cleft measuring 2.5 millimeters, but the physician did not find such an abnormality on his own review of it. The physician stated that he carefully reviewed the CT scan and saw no evidence of cholesteatoma, ossicular abnormality, or lucency in the optic capsule bone suggestive of otosclerosis. The physician reiterated that the absence of findings on a CT scan of the temporal bone did not rule out otosclerosis as a potential cause of conductive hearing loss. The January 2020 physician reviewed the August 2019 operative note, which he stated described several unusual findings. The incus was noted to be eroded with only a fibrous attachment to the stapes. In addition, there was no visualization of the stapedius tendon. Lastly, the operative note described a fracture of the posterior crus of the stapes. The physician noted that the incus and stapes superstructure were removed, but “[f]or unclear reasons (perhaps due to facial nerve dehiscence) ossicular reconstruction was not performed.” The physician stated that postoperatively, the Veteran had repeat audiometry which showed a significant widening of the air-bone gap and worsening of his conductive hearing loss on the right. The physician found that the worsening hearing was likely secondary to the surgical removal of the incus and stapes superstructure without subsequent ossicular chain reconstruction. The physician reviewed the February 2010 record by Dr. Diaz-Ordaz, and noted that Dr. Diaz-Ordaz found that the Veteran’s worsening hearing after the surgery was “most likely due to manipulation of the incus which created a maximum conductive hearing loss.” The January 2020 physician agreed with this assessment. However, he did not believe that the surgery reflected carelessness, negligence, lack of proper skill, or error in judgment. The physician explained that it was reasonable to defer ossicular chain reconstruction and offer consultation with an otologist postoperatively. The physician observed that hearing loss and a failure to improve hearing are known risks of middle ear exploration and stapedectomy. The physician added that there is documentation of the discussion of these risks between the surgeon and the Veteran on the day of the surgery. The physician concluded that based on his review of the medical record, including the February 2010 otologic assessment by Dr. Diaz-Ordaz, he agreed with the September 2014 medical opinion. In an August 2020 addendum to the January 2020 medical opinion, in answer to the question whether VA medical personnel exercised the degree of skill and care ordinarily required of the medical profession in testing the Veteran for right ear damage prior to the August 2009 surgery, the physician stated that he believed VA medical personnel did exercise proper skill and care in testing the Veteran for right ear damage prior to the August 2009 surgery. The physician explained that the degree of hearing loss prior to the surgery was well documented, and that in cases with a conductive hearing loss in the setting of a normal ear examination, imaging is often not required. The fact that a CT scan was obtained was thus conservative and “in no way negligent,” according to the physician. The physician again noted that he did not “appreciate an abnormality on the CT that was obtained.” Thus, the physician did not think that further testing would have provided any more insight into the Veteran’s condition prior to surgery. In response to the question whether the surgery would have been appropriate had the damage to the Veteran’s right ear (such as on CT scan or MRI) been detected in advance of the surgery, the physician reiterated that he did not believe the ossicular abnormality could have been detected in advance. The physician explained that slight abnormalities in the ossicular chain such as a fibrous attachment of the incus to the stapes or fractured stapes crura are very often not seen on imaging. The physician concluded that offering a middle ear exploration with possible stapedectomy was reasonable given the information and workup that was performed. The Board finds that the VA medical opinions constitute probative evidence that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in not detecting the Veteran’s right ear bony damage prior to the August 2009 surgery, in the decision to perform that surgery, or in the manner in which it was performed, notwithstanding the fact that it caused a significant increase in his conductive hearing loss. The opinions represent the conclusions of medical professionals specializing in pathology of the ear, and are supported by thorough explanations grounded in a detailed review of the Veteran’s pertinent medical history and which enable the Board to make a fully informed decision. The opinions clearly explain that it is unlikely that the bony damage found during the surgery, i.e. the disarticulated incus and fracture of the posterior crus of the stapes, could have been detected prior to the surgery, including on CT scan or audiogram, or with other testing. By the same token, they conclude that there was no impropriety in performing the surgery in the first place. As stated in the September 2014 opinion, middle ear surgical exploration is the definitive test for assessment of middle ear pathology. The VA medical opinions also clearly found that there was no negligence, carelessness, or fault in the manner in which the surgery was performed. There is no competent evidence of record contradicting, undercutting, or otherwise in tension with the conclusions of the ENT specialists who provided the VA medical opinions. No medical professional, including Dr. Diaz-Ordaz, has suggested that the surgery was improper or improperly performed, or that the damage detected during the surgery could have been detected beforehand with proper testing or examination. The VA opinions concur with Dr. Diaz-Ordaz’s conclusion that the surgery caused the additional hearing loss. However, they clearly show that the criteria for compensation under 38 U.S.C. § 1151 are not otherwise satisfied. The VA medical opinions outweigh the Veteran’s lay statements regarding the propriety of the surgery or the manner in which it was performed, as he lacks the expertise to render a competent or probative opinion on these medically complex issues. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Regarding the Veteran’s statement that his ear drum was improperly incised, there is no indication in the records that such an incision was made. The September 2009 VA treatment record reflects that the Veteran’s tympanic membrane was intact on examination. The February 2010 private treatment record authored by Dr. Diaz-Ordaz notes that the Veteran’s eardrum was found to be intact on examination. The February 2010 VA treatment record reflects that tympanometry suggested that tympanic membrane was normal. The August 2009 VA operation note reflects that the Veteran was informed that the surgery would include making an incision in the ear canal and lifting the ear drum to access the middle ear. Moreover, the evidence shows that the hearing loss was not due to any surgical manipulation of the ear drum, but rather due to manipulation of the incus, as found by Dr. Diaz-Ordaz in the February 2010 record. Thus, even if there was incision of the ear drum, that was not the cause of the Veteran’s additional hearing loss. However, no such incision is shown in the records. Regarding informed consent, the August 2009 VA treatment records pertaining to the surgery reflect that informed consent was obtained from the Veteran prior to the surgery. The pre-operative note states that he was informed that the surgery involved exploring the middle ear space which contains three small bones of the ear. Thus, he was informed that the surgery was exploratory in nature, as well as for treatment purposes. He was also informed that an incision would be made in the ear canal, and that the skin covering the ear canal, including the tympanic membrane (ear drum) would be lifted up. Finally, he was informed that risks of the procedure included permanent loss of hearing and partial or complete deafness. It was noted that the Veteran understood and agreed to the surgery, and signed a consent for the surgery. The September 2012 VA medical opinion reflects the ENT physician’s conclusion that the procedure was performed with the Veteran’s informed consent, including with regard to the risk of hearing loss. The Veteran’s additional loss of hearing was not caused by an event not reasonably foreseeable, since the informed consent included notice that risks of the procedure included loss of hearing and partial or complete deafness. The September 2014 VA medical opinion notes that it is very common in ear surgery to expect a certain pathology and find evidence of a different pathology once the middle ear is entered. In sum, the preponderance of the evidence shows that the criteria for compensation under 38 U.S.C. § 1151 are not satisfied. Accordingly, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. The Board notes that in its prior remand directives, it instructed the agency of original jurisdiction to make appropriate efforts to obtain a magnetic resonance imaging study (MRI) that the Veteran states was performed at VA prior to the surgery. When the report was requested, the VAMC furnished a July 2009 CT scan study report. The Board finds that further efforts to obtain the MRI are not warranted. To the extent there was any deficiency in complying with that directive, it did not constitute prejudicial error. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the rule of prejudicial error applies to whether there was compliance with the Board’s remand directives). In this regard, although the Veteran states that an MRI was performed, the VA treatment records make no reference to one with regard to his right ear, but do reference and contain the July 2009 CT scan study. The September 2014 VA medical opinion observes that an MRI would be a poor study to evaluate bony structures. Rather, an MRI would be used most frequently in otology if there was a concern involving soft tissue, such as a tumor. This explanation is consistent with the Board’s conclusion that an MRI study of the right ear was never performed, and that the Veteran simply did not accurately remember which studies had been conducted. Given the fact that other studies, such as the CT scan, are documented and referenced in the records, the Board finds that the MRI would ordinarily been documented and referenced in the records had it been performed. The September 2014 VA medical opinion further supports a finding that an MRI was not performed. Because such a study does not exist, there is no need to make further efforts to obtain it. Thus, to remand this case again for compliance with the Board’s remand directives, such as a negative response from the VAMC regarding the MRI, would only further delay resolution of this appeal and place additional administrative burden on VA, with no possibility of a benefit flowing to the Veteran as a result of that delay. Such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board has carefully considered the Veteran’s claim for compensation under 38 U.S.C. § 1151. For the reasons discussed above, the Board finds that the criteria for compensation under section 1151 are not satisfied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.