Citation Nr: 21009608 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-24 096 DATE: February 25, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for blurred vision as a residual of right ear tympanic membrane perforation with chronic cholesteatoma status post-surgical repair is denied. REMANDED Entitlement to service connection for hypertension, to include as due to PTSD and herbicide agent exposure, is remanded. FINDING OF FACT The Veteran has no additional vision disability caused by the April 2010 attempt to remove ear wax that occurred at a VA facility. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for blurred vision as a residual of right ear tympanic membrane perforation with chronic cholesteatoma status post-surgical repair have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to January 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that jurisdiction currently rests with the Winston-Salem, North Carolina RO. In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Addressing the relevant procedural history, this case was previously before the Board in March of 2019 at which time it was remanded for additional development, to specifically include undertaking efforts to associate any outstanding private treatment records with the claims file and obtaining an addendum VA nexus opinion. The Board notes that one additional issue (TDIU) that was originally on appeal was granted in full on remand and is, therefore, no longer before the Board. The case has now been returned to the Board for adjudication. Claims for compensation for headaches, dizziness, tinnitus, right ear hearing loss and right ear tympanic membrane perforation were granted during the time the case was in remanded status. Entitlement to compensation under 38 U.S.C. § 1151 for blurred vision as a residual of right ear tympanic membrane perforation with chronic cholesteatoma status post-surgical repair is denied. The Veteran is seeking compensation under 38 U.S.C. § 1151 for blurred vision problems as a residual of right ear tympanic membrane perforation. Specifically, it is contended that a vision-related disability was incurred as a result of the April 2010 attempt to remove ear wax that occurred at a VA facility. Under 38 U.S.C. § 1151, compensation can be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A qualifying additional disability occurs when, absent the veteran’s willful misconduct, either: (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a VA employee or in a Department facility, and the proximate cause of the disability was either (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; or (2) the disability was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151. The first element that must be established is the existence of an additional disability as a result of VA care or treatment. To determine whether the Veteran has an additional disability, VA compares his condition immediately before the beginning of the surgical treatment to his condition after such treatment has stopped. 38 C.F.R. § 3.361 (b). If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. See 38 C.F.R. § 3.361. The evidence must then show either that the additional disability 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 examination; or that it was an event that was not reasonably foreseeable. Id. However, VA care or treatment cannot be the cause of additional disability when there is a continuance or natural progression of a disease or injury for which the care, treatment, or examination was furnished, unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progression. See 38 C.F.R. § 3.361 (d)(2). In this case, the fact that the Veteran underwent treatment to attempt to remove ear wax at a VA facility in April of 2010 is not at issue and has been conceded by VA. Instead, the initial question before the Board, and the only relevant one for the reasons outlined below, is whether the Veteran has any additional disability caused by VA treatment that is related to his eye. Following a thorough review of the evidence of record, the Board concludes that the Veteran does not have an additional vision-related disability caused by the treatment of his ear at a VA facility and, therefore, compensation is not warranted. Turning to the evidence of record, the objective medical evidence does not indicate that the Veteran incurred a disability related to his eyes following the April 2010 incident. For example, in August of 2010, a VA treatment provider noted that the Veteran’s “[r]ight tympanic membranes is perforated with some red inflamed tissue behind the drum and some purulent tissue in front of the drum” but also stated that the Veteran’s “[p]upils equal, round and reactive to light and accommodation bilaterally. Extraocular muscles are intact. Sclerae and conjunctivae are normal. Left tympanic membranes is within normal limits.” An April 2011 private treatment record indicates that the Veteran’s “pupils [were] equal, round, reactive to light and accomodation”. In July of 2011, the Veteran reported ongoing problems with his right ear and balance to a VA treatment provider with no mention of any eye-related issues. At a February 2013 visit, the Veteran had “[n]o blurry vision, double vision” and upon examination, the VA treatment provider noted “PERRLA [pupils equal, round, and reactive to light and accommodation]” and “EOMI [extra-ocular motion intact]”. In September of 2020, a VA addendum opinion was obtained from a VA examiner in order to comply with the Board’s March 2019 remand. The examiner determined that, “the VAMC incident on 2010 had no effect on the veteran’s vision. Vision and ocular health were within normal limits at his examination 0n 3/23/2013 at Greenville SOC.” The examiner explicitly stated that “[t]here is no related ocular pathology” and that “[a]ge-related cataracts are the cause of blur in each eye”. The Board weighs the September 2020 opinion heavily and finds that the Veteran has no additional visual disability due to the April 2010 attempt to remove ear wax that occurred at a VA facility. The examiner reviewed the claims file, including the Veteran’s lay statements prior to providing a thorough rationale in concluding that the treatment related to the Veteran’s ear did not result in additional disability to his eyes. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, there is no competent medical opinion to the contrary. To the extent that the Veteran has reported having visual-related issues after the April 2010 incident, these assertions have been expressly considered. However, these assertions are also outweighed by the medical evidence of record. The Veteran has not been shown as competent to render an opinion on causation or the proper standard of care, as he has not been shown to possess the requisite training or credentials needed to render an expert medical opinion. 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions do not constitute competent medical evidence and lack probative value. The Veteran’s lay statements to such a complex medical question, regarding the aftereffects of an ear-related injury and whether such an injury can affect vision, are not the type of statements for which a lay witness without medical expertise can provide competent evidence. Consequently, the Board gives more probative weight to the opinion of the September 2020 VA examiner who quite clearly outlined that the Veteran’s vision was unaffected by his ear treatment at a VA facility. In addition, with the exception of the Veteran’s subjective reports, the medical evidence of record does not establish that the Veteran’s vision became objectively or measurably worse after the Veteran’s April 2010 ear treatment for the reasons outlined in detail above. The Board reiterates that as there is no additional disability shown in this case, it need not reach the question of whether the proximate cause of any such additional disability was: (1) 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 (2) an event not reasonably foreseeable. In the absence of any additional disability, then the matter concludes. Significantly, as the presence of an additional disability is at the heart of the matter regarding a 38 U.S.C. § 1151 claim, there is no basis for compensation and further analysis is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the Veteran.”). For these reasons, the Board finds that the preponderance of the evidence is against the claim for an additional vision-related disability under 38 U.S.C. § 1151 due to the April 2010 attempt to remove ear wax that occurred at a VA facility. Accordingly, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to PTSD and herbicide agent exposure, is remanded. The Veteran has asserted two separate theories of potential entitlement in regard to his hypertension claim. While a contemporaneous opinion was authored on remand, the Board finds the opinion obtained from a VA examiner in December of 2019 to be insufficient. In authoring a negative conclusion, the examiner stated in regard to the Veteran’s secondary service connection theory of entitlement that, “the commonly accepted medical literature has not established adequate evidence to show causality or aggravation of HTN secondary to PTSD in a nonhypertensive individual”. While conclusory, this opinion does not contain any supporting rationale other than asserting that unspecified literature does not contain sufficient evidence which the Board finds to be an insufficient explanation. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010, concluded that there is "limited or suggestive" evidence of an association between exposure to herbicide agents and hypertension. In November 2018, hypertension was moved by NAS to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. See Veterans and Agent Orange: Update 11 (2018) (pages 7, 465, 487) https://www.nap.edu/read/25137/chapter/1 (last accessed February 16, 2021).The NAS's conclusions indicate that the Veteran's hypertension may be directly related to his active service. The Board cannot make a fully-informed decision until an addendum opinion is obtained from a VA examiner on remand. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should answer the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension condition onset during active duty or is causally or etiologically related to any in-service event, disease, or injury, to include in-service exposure to herbicide agents. The opinion should discuss the National Academy of Sciences Institute of Medicine's most recent conclusions regarding hypertension and herbicides. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension condition is (1) proximately due to OR is (2) aggravated by the Veteran’s service-connected PTSD OR any other service-connected condition. The opinion authored should also include a full discussion of the Veteran’s documented medical history and lay assertions as well as a complete rationale for all offered opinions. 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.