Citation Nr: 21002927 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-46 898 DATE: January 19, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss due to a November 29, 2007 colonoscopy performed at a VA Medical Center (MC) is denied. FINDING OF FACT The most probative evidence of record reflects the Veteran does not have right ear hearing loss due to a colonoscopy performed at the North Chicago VAMC (now the Captain James A. Lovell Federal Health Care Center) on November 29, 2007 due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or because of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right ear hearing loss due a colonoscopy performed at the Captain James A. Lovell Federal Health Care Center on November 29, 2007 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 had active service from September 1955 to February 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2020, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file and reflects the record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence. Subsequently in December 2020, the Veteran submitted additional evidence, to include a December 2020 private medical letter from S. M., M.D. In this regard, the evidence submitted by the Veteran in December 2020, as well as evidence he also submitted in March 2020 and October 2020, were received since issuance of the August 2018 Statement of the Case. However, during the October 2020 Board hearing, the Veteran waived consideration of all additional evidence by the Agency of Original Jurisdiction (AOJ). Further, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, the Veteran’s substantive appeal was filed in October 2018, after February 2, 2013, and as discussed, the record reflects that the entirety of the additional evidence was submitted by the Veteran. Thus, the Board may proceed with appellate review. 1. Entitlement to compensation under 38 U.S.C. § 1151 for right ear hearing loss due to November 29, 2007 colonoscopy performed at the Captain James A. Lovell Federal Health Care Center 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. Under these provisions, the additional disability or death due to hospital care, medical or surgical treatment, examination, or training and rehabilitation services requires actual causation. 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). 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. In this case, the Board finds that the Veteran did not have additional disability due to his 2007 colonoscopy treatment. The Veteran contends entitlement to compensation benefits under 38 U.S.C. § 1151 for right ear hearing loss due to a colonoscopy performed at the Captain James A. Lovell Federal Health Care Center on November 29, 2007 is warranted. Specifically, in an August 2016 statement, the Veteran reported that on November 29, 2007 he had a coloscopy at the Lovell Federal Health Care Center, and since that procedure, he had had difficulty hearing and believed that this was caused from the anesthesia used during the procedure. In a December 2016 statement, the Veteran reported on November 29, 2007, he underwent a coloscopy while under general anesthesia, and within several days, he became aware of difficulty understanding what people were telling him. He further stated that last year, he read an article which stated the American Medical Association believed that a coloscopy with a general anesthetic could cause permanent hearing loss. In a February 2018 notice of disagreement, the Veteran reported he must have gotten a virus, which caused his right ear hearing loss, at the hospital when he was there for the November 29, 2007 coloscopy, as he was in perfect health. In a December 2020 statement, the Veteran again generally argued his right ear hearing loss could have been caught at the hospital, or from the general anesthesia given during the procedure, and he noted he was in perfect health when he went into the hospital and could think of no other place he could have been that would have caused his hearing loss in such a short period of time. Additionally, in October 2020 testimony, the Veteran described he had a colonoscopy on November 29, 2007, and that shortly thereafter, he believed within days, he noticed something was wrong with his hearing. He also testified that that he did not know if his right ear hearing loss was caused by a virus, or the general anesthesia, but that he felt that whatever caused his loss of hearing happened at the hospital. Despite the Veteran’s assertions, the Board finds that the weight of the evidence does not show that the Veteran sustained additional disability, namely, right ear hearing loss, due to a colonoscopy performed November 29, 2007 at the Captain James A. Lovell Federal Health Care Center. While November 2016 VA audiometric testing demonstrated the Veteran has hearing loss “disability” for VA purposes under the provisions of 38 C.F.R. § 3.385 for the right ear, the Veteran has reported he first noticed hearing loss days after the colonoscopy and the contemporaneous medical evidence suggests that sudden onset hearing loss began weeks after the colonoscopy. Specifically, a January 29, 2008 private medical record from Dr. S. M. reflected that the Veteran presented for evaluation of sudden hearing loss and tinnitus in the right ear and acute vertigo noted on December 13, 2007. Further, the January 29, 2008 private medical record also reported the Veteran likely had a viral inner ear infection with a resultant sudden sensorineural hearing loss. Further, in a March 2020 letter, Dr. S. M. cited to his January 29, 2008 treatment record and noted this record documented the Veteran had sudden hearing loss with tinnitus and vertigo that began on or around December 13, 2007. The Board recognizes in a December 2016 statement, the Veteran reported on November 29, 2007, he underwent a coloscopy while under general anesthesia, and within several days, he became aware of difficulty understanding what people were telling him. He further reported that he called Dr. K. C., and scheduled an appointment for January 8, 2008, that Dr. K. C. scheduled an MRI and comprehensive hearing test on January 11, 2008, that he saw Dr. K. C. again on January 21, 2008, after another audiometry test, he referred him to Dr. S. M., who he saw on January 29, 2008. Additionally, in a March 2020 statement, the Veteran cited to his December 2016 statement to reiterate his problems began several days after his January 29, 2007 colonoscopy, and not on December 13, 2007, as noted by Dr. S. M. He stated that he believed December 13, 2007 was the date called Dr. K. C. for an appointment as his condition had not improved. In a statement dated in July 2020 but received by VA in October 2020, the Veteran reported the one discrepancy he found in Dr. S. M.’s letter was that December 13, 2007 was the approximate date he made his initial appointment with Dr. K. C when he realized something was wrong with his hearing. In October 2020 testimony the Veteran generally reported following his right loss, he called an ear specialist, Dr. K. C. at Northwest Community Hospital and he scheduled a hearing test on January 11, 2008. However, the Veteran’s recollection that he believed December, 13, 2007 was the date called Dr. K. C. for an appointment as his condition had not improved, rather than the date his right hearing loss onset, is not supported by the January 29, 2008 treatment record, from Dr. S. M., itself. Specifically, the January 29, 2008 treatment record, as described above, reported the Veteran had sudden hearing loss, and tinnitus in the right ear and acute vertigo noted December 13, 2007. Further, rather than indicating that December 13, 2007 was the date the Veteran called Dr. K. C. to make an appointment, the record described the Veteran was in the emergency room and treated with amoxicillin and drops for “ear infection” and further describes the Veteran was seen by another physician on December 29, 2007 and placed on Azithromycin, and that on January 8, 2007 he was seen by an ear, nose and throat specialist for unresolved hearing loss. Thus, the January 29, 2008 private treatment record reflects Veteran sought treatment in the emergency room with the onset of his right ear hearing loss, along with tinnitus and vertigo, and tends to suggest this was on December 13, 2007. For these reasons, the Board does not find that the additional disability criteria for compensation under 38 U.S.C. § 1151 are met. In this regard, the Board recognizes private medical records for an emergency room visit potentially on December 13, 2007 are not of record, nor are records from Dr. K. C. dated in January 2008, although a single after visit summary for a September 2020 hospitalization at Northwest Community Hospital was submitted by the Veteran and associated with the record in October 2020. However, during the October 2020 Board hearing, the undersigned Veterans Law Judge advised the Veteran that records from Dr. K. C. were not of record. As discussed above, the Veteran was given 60 days from the date of the hearing to submit any additional evidence, but he did not provide any records from Dr. K. C., nor did he request an extension. Further, VA previously sent, including in September 2016, the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, so he could provide authorization for VA to obtain treatment information from any healthcare provider. However, the Veteran has not completed nor returned any VA Forms 21-4142. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA’s duty to assist is not a one-way street). Thus, a remand to obtain any additional medical records is not warranted. Even assuming, arguendo, that the Veteran meets the additional disability criteria, the preponderance of the evidence is against finding that the proximate cause of the right ear hearing loss was the 2007 VA colonoscopy treatment. In a February 2018 notice of disagreement, the Veteran reported, in part, that Dr. S. M., told him in 2008 and he did not know what caused his hearing loss. Similarly, in October 2020 testimony, the Veteran reported, in part, that at the time when he originally sought treatment from Dr. S. M., Dr. S. M. told the Veteran he did not know what caused his right ear hearing loss. However, Dr. S. M.’s March 2020 and December 2020 medical letters are not inconsistent with the Veteran’s report that Dr. S. M. was unable to definitively determine the etiology of his right hearing loss. Further, contrary to the Veteran’s recollection, private treatment records from Dr. S. M., dated in January 2008, February 2008, May 2008, and February 2010, all, in part, provide an assessment of viral labyrinthitis. Moreover, the Veteran’s recollection, provided several years after the occurrence, is not reflective of a contemporaneous account of what Dr. S. M. purportedly said, and is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). The November 2016 VA examiner opined that the Veteran’s present hearing loss was not a result of anesthesia from his colonoscopy on November 29, 2007. Rather, the November 2016 VA examiner found the Veteran’s hearing loss in his right ear was from viral labyrinthitis diagnosed by Dr. S. M. As a rationale, the November 2016 VA examiner discussed the Veteran’s medical history, specifically, that Veteran saw Dr. S. M. on January 29, 2008, for tinnitus in the right ear, hearing loss, and acute vertigo that started December 13, 2007, and according to Dr. S. M.’s note, the Veteran likely had a viral inner ear infection (viral labyrinthitis) with resultant sudden sensorineural hearing loss that failed oral steroid treatment and intratympanic steroid therapy. The November 2016 VA examiner further explained the Veteran was seen again by Dr. S. M. February 11, 2010 for constant tinnitus, described as hearing “power lines” in his right ear, since the sudden hearing loss and a repeat hearing test, which showed right ear mild-severe sensorineural hearing loss with 40 percent word discrimination. The Board finds that the Veteran does not have right ear hearing loss due to a colonoscopy performed November 29, 2007 at the Captain James A. Lovell Federal Health Care Center. In this regard, the November 2016 VA examiner examiner’s opinion is probative, because it is based on review of the record, including the Veteran’s subjective complaints, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed review of the record contains treatment records from Dr. S. M., which are consistent with the November 2016 VA examiner’s findings. In the March 2020 letter, Dr. S. M. also stated that in the vast majority of people who developed a sudden hearing loss, the cause was a viral labyrinthitis, but also noted that it has been reported after a general anesthetic as well, but that this was rare. In the March 2020 letter, Dr. S. M. further stated that he was not sure what kind of anesthetic was administered with the Veteran’s colonoscopy, that many patients who had a colonoscopy had it done under intravenous sedation, and if the Veteran did have his colonoscopy under general anesthesia, then it was possible the sudden hearing loss was a result of this. Unfortunately, this is not the standard by which service connection may be granted. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). Additionally, in a December 2020 private medical letter, Dr. S. M. stated he received and reviewed the Veteran’s recent letter and other materials, and that over his career he had treated many patients with sudden hearing loss, and that only rarely was he able to determine a definitive cause of the hearing loss. Dr. S. M. also reported, at best, he was able to say it could have been due to a prior viral illness or a recent general anesthetic, or perhaps other causes, such as various medications and that he was unable to modify his prior letter or state that the VA did use the standard of care. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (medical opinion expressed only in terms such as "could have been" is speculative). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102. As noted above, in the December 2016 statement, the Veteran reported, in part, and that last year he read an article that stated the American Medical Association believed that a coloscopy with a general anesthetic could cause permanent hearing loss. Similarly, in a February 2020 statement, received by VA in March 2020, the Veteran stated, in part, that a few months ago he went online and found quite a few articles describing hearing loss caused by general anesthesia, and that, in particular, these articles stated that hearing loss usually affected only one ear and usually happened within 72 hours, which fit his exact timeline as related to his coloscopy. In a March 2020 statement, the Veteran reported he never told Dr. S. M. about his coloscopy during the time he was receiving treatment because he did not realize it could be the cause of his problems until he read the article in 2016. In a statement dated in July 2020, but received by VA in October 2020, the Veteran reported that earlier this year he went online and found there were a multitude of hearing loss cases caused by the use of general anesthesia during surgery, which normally only affected one ear. He further reported he realized he had never mentioned general anesthesia as a possible cause to Dr. S. M. because he was unable of it until he read about the possibility, some seven years later. In a December 2020 statement, the Veteran again generally argued, in part, his right ear hearing loss was from the general anesthesia given during the colonoscopy. In the December 2020 statement, the Veteran cited to the records from his 2007 colonoscopy which showed no professional anesthesia practitioner was present to administer the drug and that he thought there was a strong possibility that a mistake was made by the person giving him the drug. In support of his contention that general anesthesia administered during his colonoscopy caused his right ear hearing loss, in February 2018 and October 2020, the Veteran submitted articles in support of this proposition. These articles generally addressed perioperative hearing loss due to types of sedation such as neuraxial anesthesia or general anesthesia. Additionally, one article noted, in February 2009, VA began warning about 10,000 former patients in Georgia, Tennessee and Florida, some who had coloscopies and other endoscopic procedures are far back as 2004 to get blood tests for HIV and hepatitis. However, these submissions provided medical information that was general in nature, and did not address the specifics of the Veteran’s case. Moreover, the Veteran did not receive his colonoscopy in Georgia, Tennessee or Florida and there is no indication that any impropriety occurred in his case. Additionally, as noted above, in the March 2020 letter, Dr. S. M. stated that he was not sure what kind of anesthetic was administered with the Veteran’s colonoscopy, that many patients who had a colonoscopy had it done under intravenous sedation, and if the Veteran did have his colonoscopy under general anesthesia, then it was possible the sudden hearing loss was a result of this. However, rather than general anesthesia (or neuraxial anesthesia), the Veteran’s November 29, 2007 colonoscopy records clearly reflect he was given conscious sedation. Conscious sedation is defined as minimally depressed consciousness in which a patient retains the ability to independently and continuously maintain an open airway and a regular breathing pattern, and to respond appropriately and rationally to physical stimulation and verbal commands; conscious sedation may be induced by parenteral or oral medications or combination thereof. McGraw-Hill Concise Dictionary of Modern Medicine. S.v. “conscious sedation.” Retrieved January 12 2021 from https://medical-dictionary.thefreedictionary.com/conscious+sedation. By contrast, general anesthesia is defined as the administration of pharmacologic agents, via parenteal or inhalation routes, to establish a controlled state of unconsciousness, accompanied by a complete loss of protective reflexes - e.g., inability to independently and continuously maintain an airway and regular breathing pattern and respond purposefully to physical stimulation or verbal commands and/or physical stimulation. McGraw-Hill Concise Dictionary of Modern Medicine. S.v. “general anesthesia.” Retrieved January 12 2021 from https://medical-dictionary.thefreedictionary.com/general+anesthesia. Thus, the record does not reflect the Veteran had general anesthesia during his November 29, 2007 colonoscopy but instead conscious sedation was utilized. Additionally, in a February 2018 notice of disagreement, the Veteran, in part, indicated he must have gotten the virus which caused his right ear hearing loss at the hospital when he was there for a November 29, 2007 coloscopy, as he was in perfect health and never complained about hearing loss previously. In a December 2020 statement, the Veteran again generally argued his right ear hearing loss could have been due to a virus caught at the hospital. In a statement dated in July 2020 but received by VA in October 2020, the Veteran reported, in part, that based on the assumption, that if general anesthesia did not cause his right ear hearing loss but rather a virus, then he must have contracted the virus at the hospital during his coloscopy as he was in perfect health that day. However, as discussed above, the evidence tends to reflect the Veteran had sudden hearing loss with tinnitus and vertigo which onset on December 13, 2007, which was two weeks after his November 29, 2007 colonoscopy. Further, the Veteran’s November 29, 2007 colonoscopy records do not reflect any issues, to include infection, with his right ear. There is no competent evidence that the Veteran had a viral inner ear infection (viral labyrinthitis) due to his November 29, 2007 colonoscopy or VA treatment. Thus, a VA medical opinion specifically addressing the claim on this basis is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, in the December 2020 private medical letter, Dr. S. M. stated he was unable to state that the VA did use the standard of care. While the Veteran believes his right ear hearing loss is due to a colonoscopy performed November 29, 2007 at the Captain James A. Lovell Federal Health Care Center, he is not competent to provide an opinion in this case. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran in this case because the record does not show he as the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his opinion is not adequate to rebut the competent medical evidence, including the November 2016 VA examiner’s findings and opinion, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a nexus to his November 29, 2007 colonoscopy. Further, the Veteran has offered only conclusory statements when contending that he has right ear hearing loss due to a colonoscopy performed November 29, 2007 at the Captain James A. Lovell Federal Health Care Center. Consequently, the Board gives more probative weight to the competent medical evidence, including the November 2016 VA examiner’s findings and opinion. Accordingly, the Board finds that the Veteran does not have right ear hearing loss due to a colonoscopy performed November 29, 2007 at the Captain James A. Lovell Federal Health Care Center. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and compensation under 38 U.S.C. § 1151 for right ear hearing loss is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.