Citation Nr: 21062837 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-13 742 DATE: October 12, 2021 ORDER Entitlement to service connection for a tumor, left side of the head, is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for tumor, left side of the head is denied. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The most probative evidence does not reach the level of equipoise as to whether the Veteran's tumor was caused by or incurred during his military service, to include herbicide agent exposure. 2. The Veteran's tumor was not the result of 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 of the Veteran. 3. The most probative evidence does not reach the level of equipoise as to whether the Veteran's left ear hearing loss was caused by or incurred during his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a tumor, left side of head, have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for tumor, left side of the head, have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. 3. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1969, with service in Vietnam. Exposure to herbicide agents is conceded. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2019, and a transcript of that hearing is of record. When this case was last before the Board in May 2021, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). 1. Entitlement to service connection for tumor, left side of head, is denied. The Veteran seeks service connection for a tumor on the left side of his head. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that his tumor is due to his in-service exposure to herbicide agents. The Veteran was diagnosed with a left acoustic neuroma/vestibular schwannoma (tumor) in June 2013. The record shows the Veteran served in the Republic of Vietnam during the Vietnam War and, as such, he is presumed to have been exposed to herbicide agents during service. 38 C.F.R. § 3.307(a)(6). Presumptive service connection is warranted for certain conditions for Veterans who were exposed to herbicide agents during service. 38 C.F.R. § 3.309(e). However, an acoustic neuroma is not one such condition. Id. Nevertheless, a Veteran is not precluded from establishing service connection on a direct basis if the most probative evidence supports an etiological nexus between the Veteran's current disability and herbicide agents. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran was afforded a VA examination in July 2021 regarding direct service connection. The examiner opined that the Veteran's disability was less likely than not caused by or incurred in service, to include exposure to herbicide agents. The examiner rationalized that an acoustic neuroma arises from a spontaneous mutation of the nerve sheath cells around the nerve. Furthermore, the examiner stated that there is no known association in medical literature between herbicide exposure and a nerve sheath tumor development. The examiner further opines that if there were an association it should have presented bilaterally as opposed to unilaterally. Since the area of the nerve is not exposed to the environment it would have had to enter through the circulation system which means both sides would have been affected. The Board notes that the Veteran provided his private treatment records for his tumor. These records indicate surgery in 2013; however, they do not provide a medical opinion establishing a nexus between the tumor to the Veteran's military service. The Veteran asserts that his private physician stated that these tumors do not develop overnight, indicating it had been growing for a long time. See Hearing Transcript received March 2019. However, there is no supporting medical evidence that would indicate this tumor had been growing since the Veteran's military service. Although the Veteran's exit examination indicates he had frequent or severe headaches, the Veteran's post service medical records are silent as to any head complaints until 2010. See Capri received July 2014. The Board notes that a medical opinion was obtained in June 2020 with an addendum opinion obtained in January 2021 regarding whether the Veteran's development of the tumor was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA as a result of the VA medical providers. In the June 2020 opinion, the clinician noted that a growing acoustic grows around 4 mm per year. The Veteran's private medical records indicate the tumor was 1.9 x 5 x 2.6 cm in June 2013 prior to his surgery. The medical evidence does not reflect that the tumor began growing while the Veteran was in service. Based on the above, entitlement to service connection for left side head tumor is denied. The 2021 medical opinion is probative as it was provided after a thorough review of the evidence and it included a rationale linked to the specific facts of the Veteran's medical history as well as medical evidence. There is no contrary medical opinion, so there is no reasonable doubt that could be resolved in the Veteran's favor. Unfortunately, service connection must be denied. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for tumor, left side of the head is denied. During the March 2019 Board hearing, the Veteran raised the theory of entitlement to benefits under 38 U.S.C. § 1151 for a tumor, left side of the head, allegedly incurred as a result of VA treatment. The preponderance of the evidence is against the claim and the appeal is denied. Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. 38 U.S.C. § 1151. A review of the record reveals that the Veteran raised his § 1151 claim during his March 2019 Board Hearing testimony and that all relevant treatment occurred in or after 2009. Thus, the claim must be adjudicated under only the current version of 38 U.S.C. § 1151, which requires a showing of fault on the part of VA. See 69 Fed. Reg. 46,426 (Aug. 3, 2004) (including the codification of 38 C.F.R. § 3.361 which applies to such claims filed on or after October 1, 1997 and revising 38 C.F.R. § 3.358 to state that the section only applied to claims filed before October 1, 1997). Under 38 U.S.C. § 1151, a disability is a qualifying additional disability, if the additional disability was not the result of the Veteran's willful misconduct, and was 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 similar instance 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. Section 1151 contains two causation elements, the disability must not only have been caused by the hospital care or medical treatment but it must also be proximately caused by VA's fault. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013). In order for the appellant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran; the claim for compensation under 38 U.S.C. § 1151 must be denied. In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment 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). An additional disability or death caused by the Veteran's failure to follow medical instructions will not be deemed to be 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; 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 or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined 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. 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). The Veteran began seeking treatment from VA in 2009. He testified that he sought treatment because his balance was not right, and he was losing his hearing. In 2011, the Veteran's records reflect negative complaints for dizziness. The records are silent for complaints of balance difficulties until 2014. The Veteran testified that the doctor at the VA prescribed him ibuprofen and said his symptoms were consistent with aging. The Veteran was treated at the VA for two years before seeking private medical treatment. In 2013, the Veteran sought private treatment with Dr. T, during which the tumor was discovered and removed. After the Veteran's surgery, he became deaf in his left ear. The Veteran contends that the care he received from the VA was negligent. The Veteran has not submitted any medical opinions in support of his claim. The Veteran is a lay person, and these are complex medical questions which require knowledge of the standard of care, as well as the precise etiology and cause of the Veteran's tumor, which requires expert medical knowledge. Because the Veteran lacks the education, training, and/or experience to make these highly technical judgments, his statements and beliefs regarding these issues are not competent evidence in this medically complex case and, so, are not entitled to probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Therefore, in evaluating the Veteran's claims, the Board will rely on the competent medical evidence of record. The RO obtained an opinion from a VA examiner in June 2020. See C&P Exam received August 2020. The VA examiner opined that the tumor was not a result of carelessness, negligence, lack of proper skill, or error in judgment. The examiner provided a thorough analysis regarding the growth of an acoustic neuroma, stating it is a very slow growing tumor, around 4 mm / year. When it develops within the internal auditory canal, it presents early on with hearing loss as well as balance issues. The examiner further states that the Veteran's symptoms of hearing loss and balance disorders are common with aging, and as the Veteran stated it took two years for him to be diagnosed, at most the tumor would have an extra 8mm of growth. The examiner concluded that the Veteran developed this as a result of a spontaneous mutation in a nerve sheath and not as a result of carelessness, negligence, lack of proper skill, or error in judgement on behalf of the VA. An addendum opinion was obtained in January 2021 to address whether any of the VA providers (ie. from around 2011 to the time of surgery in 2013) failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner stated that, given the risks of treatments, when discovered, the standard of care is to monitor for growth with subsequent images or worsening symptoms. If surgery is elected, the nerves impacted by the tumor are also at risk of being damaged which is why waiting is often chosen. If the tumor shows growth, then either surgery or radiation are the treatment options. Treatment is needed to prevent damage to the brain stem from further growth. The examiner further stated that, in this case, the Veteran underwent the appropriate watch and wait followed by intervention. Given the size of the nerve, the complete loss of hearing post operatively is a known risk and expected with the approach used (this approach leads to deafness, but it provides the most protection to the 7th cranial nerve which controls facial motion and is used when there is minimal functional hearing as hearing would not improve even with another approach). The examiner concluded that, given all of the above the patient was provided with the standard of care and the resulting hearing loss is consistent with effects of this type of surgery. The VA examiners' opinions establish that the medical care that the Veteran received from VA met the standard of care and did not involve 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 to the Veteran. Therefore, entitlement to compensation under 38 U.S.C. § 1151 for the tumor is not warranted on the basis of any alleged negligence. The Board notes that the tumor was not diagnosed nor removed by a VA physician. The Veteran's VA medical records reflect symptoms associated with the aging process and although MRIs were not conducted by the VA which may have led to the discovery of the tumor sooner, the Veteran's tumor was not caused by the carelessness, negligence, lack of proper skill, or error in judgment by the VA. As discussed above, the only competent opinions addressing this issue are against the claim. The June 2020 VA examiner's opinion stated that "the tumor was not a result of carelessness, negligence, lack of proper skill, or error in judgement... The patient developed this as a result of a spontaneous mutation in a nerve sheath." The January 2021 VA examiner's addendum opinion stated: "[T]he patient underwent the appropriate watch and wait followed by intervention. Given the size of the nerve the complete loss of hearing post operatively is a known risk and expected with the approach used... Given all of the above the patient was provided with the standard of care and the outcome is also appropriate." These opinions, particularly taken together, establish that the VA's failure to timely diagnose and properly treat the disease did not proximately caused the continuance or natural progress of the Veteran's tumor. 38 C.F.R. § 3.361(c)(2). Additionally, there is no allegation that the left ear hearing loss was an unforeseeable event. Rather, the medical evidence indicates that it is a known complication of surgery and the tumor had already developed and caused damage to the auditory nerve and could not be reversed had the tumor been diagnosed upon the Veteran's initial VA treatment. The Veteran has not submitted any competent evidence to contradict these examiners' opinions. The VA examiners' opinions are adequate to decide the matter and are against the Veteran's claims. Entitlement to compensation under 38 U.S.C. § 1151 for tumor, left side of the head, is denied. 3. Entitlement to service connection for hearing loss, left ear, is denied. The Veteran seeks service connection for left ear hearing loss, to include secondary service connection due to his tumor. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). As noted above, the Veteran's tumor is not service connected; thus, the Veteran cannot be granted secondary service connection for his left ear hearing loss. As discussed below, direct service connection is not warranted. The Board notes the Veteran's testimony that he was exposed to loud noises while in service without hearing protection. However, the Veteran's service treatment records do not include an exit audiology examination, and the first audiology examination was conducted in June 2014. While the examiner concedes that the Veteran's military occupation included exposure to loud noises, such as turbines and winches, the examiner opined that the Veteran's left ear hearing loss was related to the removal of the tumor involving the auditory nerve. Additionally, the Veteran indicated the greater onset of his hearing loss was five to six years prior to his 2013 surgery. Prior to that he reported a symmetrical hearing loss. Moreover, an August 2020 examiner opined that the Veteran's left ear hearing loss was due to the removal of the tumor, as the nerve is often removed with the surgery. The resulting hearing loss is a known risk of surgery. (Continued on the next page) There is no contrary medical opinion, so there is no reasonable doubt that could be resolved in the Veteran's favor. Unfortunately, service connection must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, Associate 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.