Citation Nr: 21004259 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-18 386 DATE: January 26, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for hearing loss of the left ear is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for tinnitus is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for dysthymic disorder, claimed as depression, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to August 1985 and from February 1988 to May 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of April 2015. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in March 2020. Service Connection 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for hearing loss of the left ear. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for tinnitus. 3. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for dysthymic disorder, claimed as depression. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In May 2013, the Veteran filed claim pursuant to 38 U.S.C. § 1151, alleging that a lack of proper treatment at a VA medical center in 2011 caused or worsened her left-ear hearing loss, tinnitus, and depression. She also seeks a TDIU. Compensation may be awarded for a veteran's qualifying additional disability in the same manner as if the additional disability were service-connected, if there was both actual and proximate causation. Actual causation means that the additional disability (including aggravation of an existing disease or injury) was caused by VA hospital care, medical or surgical treatment, or examination. Proximate causation means that the disability was caused by (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination or by (b) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 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). Hospital care, medical or surgical treatment, or examination 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 determine whether a veteran has an additional disability for purposes of 38 U.S.C. § 1151, VA compares a veteran's condition immediately before the beginning of hospital care, medical, or surgical treatment with his or her condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). Negligence or similar instance of fault on VA's part in furnishing the care or treatment may be shown by a failure to exercise the degree of care that would be expected of a reasonable health care provider, or by a failure to furnish the hospital care or treatment with the veteran's informed consent. 38 C.F.R. §§ 3.361(d), 17.32(b). In 1993, the Veteran had a left breast mastectomy due to breast cancer. According to the Veteran, as stated in her claim of May 2013, she consulted with Dr. C. B in 2011 for a planned surgery to insert a tissue expander for the left breast, to be followed by administering saline into the expander, removal of the expander and insertion of a permanent left breast implant, reconstruction of the left nipple, and matching the right breast to the size of the left breast with implant. She states that surgery for the tissue expander was performed on May 4, 2011. At a follow-up visit on May 16, 2011, Dr. C. B. allegedly told the Veteran that he was pleased with the results thus far, that saline was not needed in the left-breast expander, and that he remained confident that the right breast could be made even with the left breast. The Veteran further alleges that, on June 6, 2011, she experienced deafness and slight ringing in her left ear. She notified Dr. C. B., and the response was to give the symptoms some time to heal. On June 12, 2011, because she was experiencing ear pressure and ringing in the ears, the Veteran saw Dr. M. B. (a VA urgent care doctor), who prescribed antibiotics for an ear infection. When the Veteran informed the staff of Dr. C. B, the alleged response was to continue to follow the pre- operative instructions for surgery. The Veteran further alleges that June 17, 2011, the day of scheduled surgery, a VA nurse found her temperature to be slightly elevated. Dr. C. B.’s recommendation at that time, as communicated to the Veteran, was to proceed with the surgery. Following the surgery, according to the Veteran, Dr. C. B. prescribed hydrocodone for pain. She requested antibiotics as well, but Dr. C. B. did not prescribe them on the basis that they were not needed, and that there was a risk of yeast infection. According to the Veteran, Dr. M. C., a VA doctor, prescribed steroids on July 7, 2011 with respect to her left ear. On July 12, 2011, the Veteran met again with Dr. C. B. and informed him of the ear issue. Dr. C. B. allegedly stated that he did not specialize in that. According to the Veteran, she continues to suffer from hearing loss in the left ear, tinnitus, and severe depression resulting from her hearing disorder. She contends that VA caused or aggravated her hearing loss, tinnitus and depression by failing to postpone the June 2011 surgery and to treat the ear infection immediately with steroids. The Board’s March 2020 remand required, in part, that a VA medical examiner specifically consider and discuss the Veteran's contention that her left breast procedure should have been postponed due to her elevated temperature. Furthermore, the examiner was to address and consider the Veteran’s reports as to her symptoms and history and to explain the basis for rejecting any such reports. The March 2020 VA medical opinion of Dr. S. Y. does not address the Veteran’s contentions that a nurse told her on June 17, 2011 that her temperature was elevated and that Dr. C. B, having been informed of the elevated temperature, told the Veteran that the surgery could proceed as scheduled. Dr. S. Y. implicitly rejected the Veteran’s contention as to a fever on the day of surgery (by stating that the Veteran did not have fever on June 12, 2011 or on the day of the surgery, June 17, 2011), but the Veteran’s contention needed to be specifically acknowledged and any reasons for rejecting it should have been stated. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA medical opinion does not acknowledge the Veteran’s competent assertion that she was told that her temperature was high on the day of the left breast implant surgery, nor does the VA medical opinion consider and discuss the Veteran’s contention that her left breast procedure should have been postponed due to an elevated temperature. A remand is also required for clarification of the VA medical opinion, which states, “It iss at least as likely has not had acclaimed disability of tinnitus was not caused or became worse by as a result of the VA treatment” [sic]. The latter statement, if interpreted as an “at least as likely as not” finding, could arguably support a finding that it is at least as likely as not that VA treatment did cause or aggravate the Veteran’s tinnitus. Due to typographical errors or careless phrasing, however, the clinician’s meaning is not clear on this point, and clarification is needed. The clinician went on to note that “the additional disability resulted from an event that could not have been reasonably foreseen by reasonable health care provider” (emphasis added). As noted above, the elements of a § 1151 claim can be made out with adequate evidence of a) actual causation and b) proximate causation as represented by an event not reasonably foreseeable. If the latter two factors are satisfied, there is no need to show negligence or fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination. Under the circumstances, a remand is required for a clarifying medical opinion. On the one hand, the VA medical opinion of Dr. S. Y. finds that there was no failure on the part of VA to timely diagnose or properly treat the Veteran. On the other hand, it may be argued that the same VA opinion, as currently expressed, is that the Veteran’s hearing loss and tinnitus were at least as likely as not caused or worsened by VA treatment, and that the disorders were caused by an event that was not reasonably foreseeable. The former findings (no failure to properly diagnose and treat) would be consistent with a denial under § 1151, while the latter findings (actual causation by a reasonably unforeseeable event) would be consistent with a grant under § 1151. The Veteran’s § 1151 claim as to a dysthymic disorder and the TDIU issue will also be remanded as being inextricably intertwined with the other § 1151 claims as to left-ear hearing loss and tinnitus. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The determination as to whether VA failed in the standard of care as to left ear hearing loss and/or tinnitus may affect a determination as to whether VA caused or aggravated the Veteran’s psychiatric disorder and as to whether the Veteran is unable to secure and maintain gainful employment due to service-connected (or equivalent) disabilities. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matter are REMANDED for the following action: 1. Undertake appropriate development to give the Veteran another opportunity to make an initial submission of VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. Undertake appropriate development to associate with the record any outstanding, identified private medical records relating to the remanded issues and any outstanding VA treatment records. All efforts to obtain such records should be documented in the record. 3. Obtain an addendum VA medical opinion addressing the issue of entitlement to compensation under 38 U.S.C. § 1151. An examiner with appropriate expertise should furnish an opinion with respect to the following questions regarding the 2011 surgery and treatment for a tissue expander for the left breast, removal of the expander and insertion of a permanent left breast implant, reconstruction of the left nipple, and procedure/treatment to match the right breast to the size of the left breast implant. a. Is at least as likely as not that the Veteran has additional disability (including any aggravation of an existing disease or injury), to include left-ear hearing loss, tinnitus, and/or depression/psychiatric disorder, when comparing the Veteran’s condition immediately before the beginning of hospital care, medical, or surgical treatment with her condition after such care or treatment stopped? b. If the answer to Question 3.a above is “yes,” is it at least as likely as not that such additional disability was caused by VA hospital care, medical or surgical treatment, or examination? c. If the answer to Question 3.a above is “yes,” is it at least as likely as not, with respect to the Veteran’s left-ear hearing loss and tinnitus, that: (i) VA failed to diagnose and/or treat a preexisting disease or injury; (ii) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; (iii) the Veteran suffered disability that probably would have been avoided if proper diagnosis and treatment had been rendered; and (iv) the Veteran followed properly-given medical instructions? d. If the answer to Question 3.b. above is “yes,” is it as least as likely as not that the proximate cause of the additional disability was (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (ii) an event not reasonably foreseeable. Notify the examiner that, under the law, whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. A “not reasonably foreseeable” event is 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. In the report, the examiner must specifically consider and discuss the Veteran's basic contentions as to the onset and history of her symptoms of left ear hearing loss, tinnitus, and worsened depression/psychiatric disorder. Notify the examiner that, if he or she rejects any non-expert (lay) statement of the Veteran or other laypersons as to the onset and history of experienced symptoms left-ear hearing loss, tinnitus, and depression/psychiatric disorder, an explanation for that rejection must be provided. In particular, the report of the examiner must specifically consider and discuss the Veteran's contention, to include as stated in her filings of April 2, 2014 and June 10, 2013, that the left breast procedure should have been postponed due to her elevated temperature (fever) on the day of the scheduled surgery, and that she should have immediately received steroid treatment for her left ear infection. A stated rationale for all opinions is required. If a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (that is, no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (that is, additional facts are required, or the examiner does not have the needed knowledge or training). 4. Upon completion of the above directives and any other warranted development or action, readjudicate the appealed issues, included entitlement to a TDIU. If a benefit sought on appeal remain denied, issue a Supplemental Statement of the Case (SSOC), and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.