Citation Nr: 21063106 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-55 952 DATE: October 13, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for scars and residuals following rhytidectomy is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss prior to May 8, 2021 and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. The Veteran's scars and residuals following surgery in a VA facility were not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. 2. Prior to May 8, 2021, during the appeal period, audiometric testing has revealed no worse than Level IV hearing acuity in the right ear and no worse than Level VI in the left ear. 3. The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level VIII in the left ear since May 8, 2021. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for scars and residuals following rhytidectomy have not been met. 38 U.S.C. §§ 1151; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for an increased rating for bilateral hearing loss rated at 20 percent prior to May 8, 2021 and 40 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army National Guard, which included a period of active duty for training from September 1968 to January 1969. He had active service from October 1971 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran applied for service connection and under 38 U.S.C. § 1151 for injury to both sides of the face, to include scarring, following surgery at a VA facility. The RO denied the Veteran's claim in a July 2017 rating decision. The Veteran timely filed a NOD in September 2017. The Veteran's claim for an increased rating for bilateral hearing loss was previously before the Board in August 2019 and March 2021. In May 2021, the Veteran was granted a 40 percent rating for his bilateral hearing loss. The Veteran has expressed satisfaction with the 40 percent rating; however, he contends he is entitled to that rating prior to May 8, 2021. The Veteran testified before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing is of record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for injury to both sides of the face, to include scar The Veteran underwent a rhytidectomy in July 2007 at a VA medical facility. Following the surgery, the Veteran developed bilateral facial hematomas that required a return to the operating room. The Veteran contends that the surgery caused scarring and residuals including headaches. 38 U.S.C. § 1151 affords compensation benefits for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a "qualifying additional disability," the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. To determine whether an additional disability was caused by medical treatment, VA compares the Veteran's condition immediately before the beginning of such treatment to his condition thereafter. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the VA medical treatment resulted in the Veteran's additional disability. The mere showing of an additional disability after receipt of care, treatment, or examination is insufficient to establish cause. 38 C.F.R. § 3.361(c)(1). The continuance or natural progress of a disease or injury for which treatment was furnished is not causation 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). Additional disability caused by the Veteran's failure to follow properly given medical instructions is not causation. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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 additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the medical treatment 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. 38 C.F.R. § 3.361(d)(2). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's scars and residuals were proximately caused by 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 that it was proximately caused by an event not reasonably foreseeable. There is no evidence showing that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. A medical opinion regarding the Veteran's surgery was provided in August 2013. The medical reviewer opined that it was less likely than not that the Veteran's scars and headaches were caused by or worsened as a result of VA treatment. The reviewer also stated that it was less likely than not that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider and that it was less likely than not that there was failure on the part of VA to timely diagnosed and/or properly treat the Veteran's hematomas. The rationale was that the Veteran agreed to elective surgery for scar revision of his right cheek and a rhytidectomy and consented to the surgical procedure, which he underwent without complications. He developed swelling after the operation and was diagnosed to have bilateral hematomas and underwent surgical evacuation of the hematomas in less than 24 hours. At an August 2007 postoperative appointment, the Veteran's plastic surgeon documented that edema, ecchymosis, and subconjunctival hemorrhage had resolved. There was no documentation that the Veteran had postoperative symptoms of headaches; further, the Veteran had a previous history of headaches, and no documentation indicated a worsening of his headaches following the surgery. The reviewer noted that the Veteran was immediately evaluated and treated when facial swelling occurred, and that bleeding and hematoma is a known possible consequence of surgery that would have been discussed when the consent form for surgery was signed. There was no evidence of a delay in treatment that would lead to complications. The reviewer noted that while the Veteran claimed that the procedure caused scarring, this was an expected result of surgical intervention, and there was no indication that the residual scar was in excess of the expected outcome. The Veteran's VA physician submitted a letter in May 2017 indicating that the Veteran had posttraumatic stress disorder symptoms following his July 2007 rhytidectomy, including intrusive memories, anxiety, and insomnia, as well as frequent headaches, facial scarring, and swelling at his temples. However, the physician did not indicate that these symptoms were the result of 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 that they were proximately caused by an event not reasonably foreseeable. An addendum medical opinion was provided in July 2017. The reviewer stated that the Veteran's claimed disability was less likely than not caused by, or that it was a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The reviewer noted that postoperative surgical bleeding with resultant hematomas can arise due to any surgical procedure. The reviewer opined that postoperative bleeding cannot be entirely eliminated as it is beyond the control of the health care team. As such, the standard of medical care is such that the health care team monitors an individual for potential issues and then works to address any problems that may arise. The reviewer noted that the chart notes from the Veteran's surgery demonstrate that monitoring occurred. Finally, the reviewer noted that it was less likely than not that there was failure on the part of VA to timely diagnose and/or properly treat the Veteran's condition. The reviewer stated that the notes from the Veteran's surgery demonstrate that the Veteran was monitored following surgery for potential complications. As complications occurred, prompt action was taken to address them. The records did not indicate that his condition was allowed to progress or deteriorate without the knowledge and intervention of the health care team. The Veteran believes that his scars and headaches were caused by the July 2007 surgery. The Board has considered these statements but notes that while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he observed and are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as the medical expertise necessary to determine if a provider failed to exercise the degree of care that would be expected of a reasonable health care provider, or the cause for most disabilities or symptoms. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Importantly, and contrary to the lay contentions, the August 2013 and May 2017 VA reviewers concluded that there was no improper medical care by the VAMC. Further, the Veteran's treating physician did not indicate that any disability experienced by the Veteran was the result of 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 that it was proximately caused by an event not reasonably foreseeable. In the absence of competent evidence that demonstrates additional disability caused by VA, the Board concludes that the greater weight of the evidence is against the claim for entitlement to compensation under 38 U.S.C. § 1151. 2. Entitlement to an increased rating for bilateral hearing loss The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss prior to the effective date assigned by the RO. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Following the Veteran's claim for increase, he was examined for VA purposes in August 2015. The examination reveals that the Veteran reported difficulty hearing in his daily life. He also stated he had difficulty understanding speech in all situations. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 60 70 65 58 80% LEFT 55 60 80 85 70 72% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in the Veteran's right ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran's left ear. Applying the results to Table VIA yields a numeric designation of Level IV in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. Here, Table VII and Table VIA both result in a 20 percent rating. A May 2018 audiology note indicates that the Veteran had lost his hearing aids. However, no audiometric testing was completed at that time. An April 2019 VA examination reveals that the Veteran reported difficulty hearing in situations where ambient noise was present and that he utilizes lip reading for better speech understanding. He also reported that he continues to have difficulty hearing even when wearing his amplification. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, could not be tested. The examiner indicated that despite repeated instructions, no valid or reliable pure tone test results could be obtained. As such, the examiner noted that while hearing loss may be present, such a loss could not be ruled out or confirmed by audiometric testing. A May 2021 VA examination noted that the Veteran stated he had difficulty hearing. He was reportedly fitted with hearing aids three years ago. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: May 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 80 85 90 81 100% LEFT 65 85 95 95 85 68% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level VII in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right ear and Table VIA yields the highest rating for the left ear. Notably, prior to the May 2021 examination, there was no evidence showing that the criteria for a rating in excess of 20 percent for hearing loss were met. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran has difficulty hearing, which he testified to at his Board hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). (Continued on the next page) Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 20 percent for hearing loss prior to May 8, 2021 and in excess of 40 percent thereafter. The Veteran's hearing loss was not shown to have undergone a factually ascertainable increase in severity prior to the May 2021 VA examination. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.