Citation Nr: 21061612 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-14 610 DATE: October 4, 2021 ORDER Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for left ear hearing loss is denied. Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's left ear hearing loss did not originate in service, within a year of service, and is not otherwise etiologically related to his active service, or result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. 2. The Veteran's tinnitus did not originate in service, within a year of service, and is not otherwise etiologically related to his active service, or result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for left ear hearing loss have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for tinnitus have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In March 2021, the Board remanded these claims and instructed the Agency of Original Jurisdiction (AOJ) to consider the claims under the provisions of 38 U.S.C. § 1151 in the first instance. These claims were remanded again in May 2021. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1151 Eligibility Under VA laws and regulations, when a veteran suffers additional disability as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The veteran must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnosis and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(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. 38 C.F.R. § 3.361(d)(2). Left Ear Hearing Loss and Tinnitus The Veteran seeks entitlement to service connection for left ear hearing loss and tinnitus. Specifically, the Veteran asserts that his left ear hearing loss and tinnitus began during service in basic training and during the time he was deployed to Europe. See February 2017 VA Form 21-4138, Statement in Support of Claim and October 2017 Notice of Disagreement (NOD). Alternatively, he asserts that he developed left ear hearing loss as a result of treatment for a seizure disorder. In this regard, he asserts that during such treatment, he received an IV in his right arm which later became infected, and that such infection spread to his brain stem. See December 2020 Board Hearing Transcript. The evidence of record includes service treatment records (STRs) including a January 1964 enlistment examination showing the Veteran denied any ear trouble. The following audiometric testing results: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 0 - 5 The Veteran's October 1966 separation examination shows he denied any ear trouble or hearing loss. The following audiometric testing results: HERTZ 500 1000 2000 3000 4000 LEFT 0 -5 - 5 10 Post-service records include an August 6, 2011 VA medical record showing the Veteran was seen for a neurological assessment. The record noted he had previously been seen at The University of Kansas Hospital (UKH) where he had been discharged, and that he wanted to receive treatment at VA. He complained of having a seizure that morning. An IV was placed in the right AC, and he was started on Dilantin, and VA medical records show he was thereafter discharged. See VA Medical Records Received July 2017. August 2011 VA medical records show he denied having tinnitus or decreased hearing. See VA Medical Records Received May 2017. An August 17, 2011 UKH medical record shows the Veteran was admitted for left septic knee and was taken to the operating room where he underwent arthroscopic irrigation and debridement. Two days later, he was again treated for some residual infection. The likely source of the infection was found to be the previous cellulitis/abscess of his right upper extremity over the IV site. In a February 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran reported having ringing and hearing loss in his left ear. The Veteran further reported that his symptoms stemmed from basic training and the time he was deployed to Europe. In May 2017, a VA medical record noted ringing in the left ear as a hearing barrier. See VA Medical Records Received March 2021. The Veteran underwent a VA examination in September 2017. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 25 40 45 Speech recognition scores were 98 percent bilaterally. The examiner opined that it was not "at least as likely as not (50% probability or greater)" that any left ear hearing loss was etiologically related to service. In support of this opinion, the examiner stated that the lay statements as to in-service noise exposure was given the benefit of the doubt. However, it was further noted that the Veteran's military occupational specialty (MOS) was not a high risk for noise exposure. In addition, the examiner found that the STRs documented normal auditory thresholds at enlistment and separation, and that there was not a significant decrease beyond normal progression and test retest variability. Accordingly, the examiner ruled out hearing loss caused by or a result of an event in military service. Additionally, the examiner relied on the 2005 Institute of Medicine conclusion that based on current knowledge of cochlear physiology, there was insufficient scientific evidence for delayed-onset of hearing loss secondary to military noise exposure. In this regard, the examiner noted that hearing loss should occur at the time of such noise exposure and that there was insufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss could develop years after military noise exposure. The examiner further noted that the available anatomical and physiological evidence suggested that delayed post-noise exposure induced hearing loss was not likely. Therefore, the examiner determined that if hearing was normal at discharge from service, and if there was no permanent significant threshold shift greater than normal progression and test re-test variability during service, then there was no basis to conclude that any current hearing loss was casually related to any in-service noise exposure. With regard to tinnitus, the Veteran reported the onset of his symptoms 10 years prior. The examiner opined that it was "less likely than not (less than 50% probability)" that tinnitus was etiologically related to service. In support of this opinion, the examiner noted that the Veteran did not correlate the onset of his symptoms to military service. The examiner further noted that he did not have a hearing loss condition that was etiologically related to service, which further did not support the claim. Additionally, the examiner noted that tinnitus secondary to noise exposure typically became present at the time of such exposure. In this regard, the examiner noted that the Veteran reported the onset 40 years after such exposure. In his October 2017 NOD, the Veteran reported the onset of his hearing loss and tinnitus during service. February and November 2020 VA medical records show the Veteran denied any acute hearing loss, drainage, pain or tinnitus. See VA Medical Records Received March 2021. At a December 2020 Board hearing, the Veteran's spouse testified that in August 2011, he had a seizure and was initially transported to a private hospital, and then transported to a VA hospital where he was examined and moved into intensive care where he stayed for approximately three days. The spouse stated that a cause for the actual seizure could not be found. During this time, she stated that the Veteran had an IV in his right arm and that nurses kept coming in to adjust the IV because an alarm kept sounding. After his release, the spouse stated that each day the IV entry site became more swollen and fuller of infection. Thereafter, she stated that the Veteran began to complain that his head hurt, his body hurt, and that his left leg swelled around his knee and ankle and he was sick and running a high temperature. Thereafter, the Veteran's wife testified that she brought the Veteran back to the VA hospital where they started draining his left leg, and then transferred him to a private hospital where they drained his leg three times and he was diagnosed with sepsis which had set all the way to his brain stem. The Veteran was later transferred to another VA hospital where his left leg and IV site infections were treated over an approximately two month period. As a result of his initial stay in the VA hospital in August 2011, the Veteran and his spouse asserted that he developed hearing loss and tinnitus as he did not have those conditions prior to that time. Lastly, in an August 2021 VA addendum medical opinion, a VA examiner opined that it was "less likely than not" that the left ear hearing loss was etiologically related to service. In support of this opinion, the examiner noted that although a person could develop hearing loss without realizing it, the in-service audiograms were objective measurements of hearing and acoustic trauma. Based on the Veteran's STRs, the examiner noted that the audiograms, from his enlistment to separation, did not show shifts in hearing that were significant. In this regard, a significant shift was defined as 15 dB or greater. Absent such evidence showing a significant shift, the examiner concluded that no in-service acoustic trauma occurred. With regard to his 38 U.S.C. § 1151 claim, the examiner noted the Veteran's assertion that an IV site infection went to his brain. However, the examiner noted that the brain was protected from the blood stream by a blood brain barrier which prevented infections from reaching the brain. While the examiner noted that a few infections could pass the blood brain barrier, such instances were rare. Moreover, even in instances where infections did enter the brain, such infections were viral and led to a symmetric flat hearing loss pattern. As the Veteran's hearing loss was a down slopping pattern, the examiner precluded that possibility. In addition, the examiner noted that viruses did not cause IV site infections. Instead, IV site infections were noted to be caused by bacteria, and the examiner noted that if bacteria had entered the brain, the Veteran would have become comatose. Based on the above, the examiner concluded that it was less likely than not that the current mild hearing loss was related to any IV site infection. Finally, with regard to whether any left ear hearing loss was due to or the result of medical care, lack of care, or failure to diagnose and treat, the examiner again noted that the hearing loss was down sloping which was caused by acoustic trauma and further noted no asymmetry between the ears to indicate another medical condition caused the hearing loss. Therefore, it was less likely than not that the left ear hearing loss was the result of the medical care, lack of care, or failure to diagnose and treat any medical condition, including any IV site infection. Lastly, as the hearing loss was clearly and unmistakably not caused by any medical condition, the examiner stated that it was less likely than not that the left ear hearing loss would have been a foreseeable outcome. With regard to tinnitus, the examiner stated that history was key. In the Veteran's case, the examiner noted that he had alternatively reported that his tinnitus began during service and 40 years after service. Accordingly, the examiner concluded that he had been shown to be an unreliable historian and a true timeline could not be established. With regard to the assertion that his tinnitus resulted from an IV site infection, the examiner again noted that hearing loss caused by infections caused a flat hearing loss pattern that was usually quite severe, and that the Veteran did not have that type of hearing loss pattern. Therefore, without an infection affecting his hearing, it could also not cause tinnitus. Therefore, the examiner concluded that it was less likely than not that the tinnitus resulted from care, lack of care, or failure to diagnose and treat the Veteran. The examiner noted that the condition was not related to any medical condition, and, therefore, was less likely than not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Additionally, as tinnitus was clearly and unmistakably not caused by any medical condition, it was less likely than not that his tinnitus would have been a foreseeable outcome. The Veteran meets the threshold criterion for service connection for a current disability. Specifically, the September 2017 VA examination noted diagnoses for left ear hearing loss and tinnitus. Accordingly, the remaining question is whether those conditions are otherwise related to service. Initially, the Board has considered whether service connection is warranted on a direct basis. In this regard, the Board finds the cumulative September 2017 and August 2021 VA examination reports the most probative evidence of record. With regard to hearing loss, both the September 2017 and August 2021 VA examiners concluded that the condition was not etiologically related to service based on finding that significant threshold shifts were not shown during service. As noted by the August 2021 examiner, the in-service audiograms provided objective measurements of hearing and acoustic trauma. Absent evidence of a significant threshold shift, both examiners found that there was an absence of in-service acoustic trauma. With regard to tinnitus, the September 2017 VA examination shows that the Veteran did not correlate the onset of this condition to service. Tinnitus, the examiner noted, typically became present at the time of traumatic noise exposure. However, he reported the onset some 40 years after service. Accordingly, as the symptoms began 40 years after service, the examiner concluded the condition was not related to any in-service noise exposure. The August 2021 VA examiner recognized that the Veteran had alternatively reported the onset of his tinnitus during service, and in approximately 2007. As such, the VA examiner found the Veteran's reports as to onset of the condition to be unreliable and direct service connection could not be established. The Board does recognize the Veteran's lay statements that he developed hearing loss and tinnitus during service. However, during his December 2020 Board hearing, both the Veteran and his spouse testified that he developed hearing loss and tinnitus sometime after August 2011. Based on the conflicting lay statements offered, the Board finds they are unreliable historians and provides their lay statements little probative value. Therefore, the Board finds that the lay assertions in the present case are outweighed by the cumulative VA examiners' opinions, who determined that the there was no nexus between the diagnosed hearing loss and tinnitus and service. The examiners have training, knowledge, and expertise on which they relied to form their opinions, and they provided persuasive rationales. There is no medical evidence to the contrary. Therefore, entitlement to service connection on a direct basis is not warranted. Turning to entitlement to compensation under 38 U.S.C. § 1151, the Board finds that the weight of the evidence does not establish that hearing loss or tinnitus resulted from the IV site infection or subsequent septic left knee. Specifically, with regard to this inquiry on appeal, the Board finds the August 2021 VA examination report the most probative evidence of record. The examiner explained that the brain was protected from infections being transmitted through the blood stream via a blood brain barrier. Moreover, the examiner explained that any viral infection affecting the brain would result in a symmetric flat hearing loss pattern, a pattern unrelated to the left ear hearing loss. Additionally, the examiner noted that any bacterial infection affecting the brain would have left the Veteran comatose, which he was not. Based on the fact that the hearing loss could not have been proximately caused by a brain infection, the examiner concluded that it could not be said that entitlement to compensation was warranted under the provisions 38 U.S.C. § 1151. The Board finds the medical principals outlined in the August 2021 VA examination report compelling, well-reasoned and persuasive. Importantly, there is no competent medical evidence to the contrary. The Board does recognize the Veteran and his spouse's lay statements that he did not have hearing loss or tinnitus prior to his August 2011 VA treatment. However, such assertions are directly contradicted by prior statements provided by the Veteran, who, in October 2017, reported the onset of his hearing loss and tinnitus during service. Accordingly, the Board finds the lay statements provided in this matter to be unreliable and of little probative value. (Continued on the next page) Thus, absent credible evidence showing that the Veteran's left ear hearing loss and tinnitus are directly related to service or proximately caused by his August 2011 VA treatment, the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claims, that doctrine is not applicable in the instant appeal. The claims are denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.