Citation Nr: 21070808 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-18 386 DATE: November 26, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for left ear hearing loss 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 an acquired psychiatric disorder, to include dysthymic disorder and depression, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from February 1983 to August 1985 and from February 1988 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issues on appeal were last before the Board in January 2021 when they were remanded. The issue of entitlement to service connection for a dysthymic disorder has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder and depression, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 an acquired psychiatric disorder, to include dysthymic disorder and depression. 4. Entitlement to a TDIU due to service-connected disabilities. The Veteran contends that VA treatment caused or aggravated her hearing loss, tinnitus and psychiatric disorder. She also contends that she is unable to work as a result of her service-connected disabilities. The Board notes that these matters was remanded in January 2021 for additional development. Specifically, this matter was remanded, in part, for a clarifying VA opinion on the etiology of the hearing loss, tinnitus, and acquired psychiatric disorder. The examiner was directed to specifically consider and discuss the Veteran's contentions: [T]he 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. VA opinions were obtained in August 2021. The examiner gave a negative opinion that the Veteran's hearing loss, tinnitus, and psychiatric disorder were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of faulty on the part of the VA. Regarding the tinnitus, the examiner noted that the tinnitus is a perception of sound in proximity to the head in the absence of an external source. He also noted that tinnitus can be perceived as being within one or both ears, within or around the head, or as an outside distant noise which sound is often a buzzing, ringing, or hissing, although it could also sound like other noises. Regarding the hearing loss, the examiner noted that sensorineural hearing loss is due to problems of the inner ear, also known as nerve-related hearing loss. The examiner also noted that causes of sensorineural hearing loss include: Exposure to loud noise (preventable but not reversible Aging (presbycusis), Head trauma, Virus or disease, Autoimmune inner ear disease, Heredity, Malformation of the inner ear, Ménière's disease, Otosclerosis, Tumors. For both tinnitus and hearing, the examiner noted that a review of the VA diagnosis and treatment was found to be appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, and that the standard of care was met in this case. Regarding the psychiatric disorder, the examiner noted that a review of the record revealed pre-service psychiatric treatment in 1980 as well as dysthymia, ADHD, Impulse Control Disorder, Depressive Disorder NOS, substance abuse, alcohol abuse, borderline personality disorder, affective psychosis, tobacco use disorder, and Anxiety Disorder NOS dating back to 2000-2001, approximately 10 years before the June 2011 VA treatment at issue. The examiner also noted that the Veteran reported increased depression symptoms in August 2012, which she related to the VA treatment at issue, and she was assessed as having moderate symptoms at that time. However, this was more than one year following the VA treatment at issue, and was not found to be temporally related to the VA treatment at issue given that the Veteran had maintained euthymic mood with no additional disability for over a year following the VA treatment at issue. The examiner noted that the Veteran's depression symptoms have continued to wax and wane including times she had denied active depression symptoms and times when she has evidenced mild and moderate depression symptoms. This is consistent with her longitudinal history of fluctuation of mental health symptoms throughout her lifetime, beginning more than a decade prior to the VA treatment at issue, and is consistent with the natural course of her depressive disorder. No other opinions or rationale were provided. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions are inadequate for adjudicative purposes. The examiners failed to address the various contentions directed by the Board in its recent remand directives when they rendered their opinions. As such, the Board finds that there has not been substantial compliance with its remand directives. Therefore, this matter must be remanded to obtain VA opinions that addresses all contentions that have been raised on appeal. The Veteran's TDIU issue will also be remanded as being inextricably intertwined with the other § 1151 claims being remanded by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The determinations as to whether VA failed in the standard of care as to left ear hearing loss and/or tinnitus and whether VA caused or aggravated the Veteran's psychiatric disorder may affect a determination as to whether the Veteran is unable to secure and maintain gainful employment due to service-connected (or equivalent) disabilities. The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Obtain an addendum VA medical opinion addressing the issue of entitlement to compensation under 38U.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 2.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 2.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. 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). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.