Citation Nr: 21011532 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-33 839A DATE: March 2, 2021 ORDER Entitlement to service connection under the provisions of 38 U.S.C. § 1151 for impingement right shoulder with secondary bursitis and supraspinatus tear is denied. Entitlement to an 80 percent rating for bilateral hearing loss disability between October 28, 2014 and January 8, 2019 is granted. REMANDED The claim of entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. A right shoulder disorder was not proximally caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable 2. faulty medical care provided by the U.S. Department of Veterans Affairs (VA). 3. The evidence is in a state of relative equipoise regarding whether, prior to January 8, 2019, the Veteran had Level IX hearing acuity in the right ear and Level XI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for a right shoulder disorder are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for an 80 percent rating between October 28, 2014 and January 8, 2019 for bilateral hearing loss disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.85-87. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to October 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a VA Regional Office (RO). The Board remanded this matter for additional development in October 2017 and February 2019. The case is again before the Board for appellate review. Service Connection under 38 U.S.C. § 1151 In July 2008, the Veteran underwent surgery on his right shoulder at a VA medical facility. The surgery was intended to address problems involving impingement, arthritis, bursitis, a muscle tear, and residuals of a recent fall injury. The Veteran asserts that the right shoulder problems worsened as a result of the surgery and the post-operative care. He claims that VA failed to prescribe the proper antibiotics to control a post-operative infection and claims that a delay in physical therapy led to increased limitation of motion in the shoulder. He claims entitlement to compensation for the disorder under 38 U.S.C. § 1151. Law and regulations When a veteran suffers additional disability or death 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 or death was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The claimant must show some degree of fault, and more specifically, that the proximate cause of disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the 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. Merely showing that a veteran received care, treatment, or examination and that that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). 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 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of lay statements, private and VA treatment records, and VA compensation examination reports dated in April 2011 and January 2018. This evidence indicates that the Veteran experienced an additional disability from the July 2008 surgery. His shoulder became infected after the surgery which led to emergency room treatment, antibiotic treatment for pain, fever, and chills, and a subsequent procedure for pus removal. However, an award of service connection under 38 U.S.C. § 1151 is unwarranted. The preponderance of the probative evidence of record is against the claim that the infection was due to faulty VA care. Further, no evidence indicates that the surgery was done without consent, or that the subsequent infection was not reasonably foreseeable. The record contains a July 2008 consent form signed by the Veteran. The form details the recommended procedure to repair a torn rotator cuff, details possible benefits from the procedure including reduced pain and increased function and range of motion, and details possible risks from the procedure including infection that may require the use of antibiotics and “[l]ess than complete recovery of normal functions or pain relief.” The VA examiner who conducted the April 2011 examination found it less than likely that the post-surgical infection and continuing limitation of motion was a result of faulty VA treatment. The examiner noted that the infection resolved after a few weeks of treatment and that subsequent treatment continued to show an absence of infection (see e.g., July 2009 magnetic resonance imaging). The examiner also noted evidence dated in July 2009 indicating full and painless range of motion with the exception of pain and limitation on mid-range abduction due to impingement. The October 2017 Board remand sought additional medical commentary into the assertion that shoulder disability worsened because the wrong antibiotics were prescribed, and because of the delay between the date of surgery and the date physical therapy commenced. In response, the RO provided the Veteran a VA examination in January 2018. In the report, the examiner similarly found it less than likely that the Veteran had an additional right shoulder disability resulting from faulty VA care. The examiner explained that, although the “overall outcome was not ideal,” the infection and persistent pain and limited motion are “within the expected range of outcomes and complications.” Indeed, this examiner also pointed out that the risks associated with the surgery were explained to the Veteran in the July 2008 consent form, and are noted in a June 2008 VA treatment record indicating the Veteran’s understanding that the planned surgery “may not have complete resolution of symptoms[.]” The examiner further stated that the post-operative infection was promptly and effectively treated and did not result in the development of more serious complications such as sepsis or osteomyelitis. Moreover, the examiner noted that the Veteran in 2008 “began working with physical therapy and occupational therapy with some improvement in pain and range of motion” despite persistent limitations. The private and VA treatment records corroborate each opinion in that they show that infection and continued limitation of motion were reasonably foreseeable risks associated with the surgery, that the Veteran understood those risks and consented to the surgery, and that he received adequate treatment to address the complications following the surgery. Moreover, the treatment records show that the infection resolved, and that the Veteran had full range of motion and strength in his right upper extremity with the exception of limited abduction due to pain associated with impingement. As the VA examiners’ findings are based on the evidence of record and are explained, the Board finds them probative. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Board has reviewed the Veteran’s lay assertions. He is competent to report observable symptoms such as pain and limitation of motion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues regarding diagnosis, etiology, and what constitutes appropriate medical care for the particular issue on appeal. These are medical issues which, in this matter, involve internal matters beyond his ability to observe. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On the complex question of whether the Veteran received appropriate care for his shoulder problems, his lay statements are no probative value. The findings in the April 2011 and January 2018 medical opinions preponderate against his assertions. In summary, the record indicates that the Veteran experienced complications following VA surgical treatment in July 2008. But the weight of the competent and probative evidence is against finding that the complications were 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 medical care. Nor does the record indicate that the additional disability was not reasonably foreseeable, or that the surgery was performed without informed consent. 38 U.S.C. § 1151. The Veteran has repeatedly asserted that the surgery was faulty and worsened his shoulder disorder. However, he lacks the medical expertise necessary to render a competent medical opinion regarding causation. For these reasons, the Board finds the preponderance of the evidence against the claim for compensation under 38 U.S.C. § 1151. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating The Veteran has been service connected for bilateral hearing loss disability since October 2002. The disorder had been rated 60 percent disabling from December 2013. On October 28, 2015, he filed a claim of entitlement to a higher disability rating. In the November 2015 rating decision on appeal, the RO denied the claim. Later in the appeal period, however, in a February 2019 rating decision, the RO assigned a 100 percent disability rating effective January 8, 2019. The Veteran now asserts entitlement to a rating higher than 60 percent prior to that date. In the decision below, the Board will assess whether a rating higher than 60 percent was warranted at any time between October 28, 2014, one year prior to the date of claim, and January 8, 2019, when the 100 percent rating became effective. See 38 C.F.R. § 3.400. Laws and regulations The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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 schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85 (b). Table VIA, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). “Puretone threshold average,” as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85 (d). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. (b) When the pure tone thresholds are 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. That numeral will then be elevated to the higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter. 38 C.F.R. § 4.85(f). “[I]n addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis In this matter, the relevant evidence dated between October 2014 and January 2019 consists of VA treatment records, lay statements from the Veteran, VA audiograms dated in October 2015 and July 2016, and a VA compensation examination report dated in November 2015. The November 2015 VA examiner noted the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Avg RIGHT 70 60 70 75 69 LEFT 90 105+ 105+ 105+ 101 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 66 percent in the right ear and 0 percent in the left ear. Applying the results to the Table VI chart results in level VII hearing in the right ear and Level XI in the left ear. Applying these results to the Table VII chart results in a 60 percent evaluation. Table VIA does not yield a higher evaluation. As such, on its own, this report indicates that a rating higher than 60 percent was unwarranted prior to January 2019. However, other evidence dated during the appeal period indicates more severe hearing loss in the right ear. Indeed, the October 2015 and July 2016 VA audiograms indicate that a higher evaluation has been warranted since October 28, 2014. Each audiogram indicates Level XI hearing in the left ear as does the November 2015 report. But each audiogram indicates worse hearing in the right ear. The October 2015 audiogram indicates an average auditory threshold of 75 with speech recognition of 44 percent while the July 2016 audiogram indicates an average auditory threshold of 78 with speech recognition of 40 percent. Applying these results to the Table VI chart results in level IX hearing in the right ear to go along with the Level XI hearing in the left ear. Applying these results to the Table VII chart results in an 80 percent evaluation. Table VIA does not yield a higher evaluation. 38 C.F.R. §§ 4.85-86; Lendenmann, supra. The VA treatment records dated since October 2014 tend to support the notion that hearing loss prior to January 2019 was more than 60 percent disabling. These records do not contain information addressing auditory thresholds or speech recognition scores. Nevertheless, the records detail treatment for hearing aid fitting and placement due to markedly diminished hearing acuity and indicate, along with records dated prior to October 2014, that the Veteran’s hearing acuity decreased significantly at some point between a March 2014 VA audiology examination and the October 2015 increased rating claim. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the assignment of an 80 percent rating between October 28, 2014 and January 8, 2019. See 38 C.F.R. § 3.400. Accordingly, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the increased rating claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Prior to January 8, 2019, the higher ratings of 90 and 100 percent are not warranted. For a 90 percent rating the evidence must indicate Level XI hearing in one ear and Level X hearing in the other, while a 100 percent rating is warranted for Level XI hearing in both ears. As detailed earlier, the Veteran’s left ear has been evaluated as Level XI throughout the appeal period. However, the highest evaluation for the right ear has been Level IX. Nothing in the record would support a finding that the right ear hearing acuity is higher than Level IX during the relevant time period. See 38 C.F.R. §§ 4.85-86; Lendenmann, supra. Regarding functional impact, the November 2015 VA examiner noted the Veteran’s complaints of difficulty hearing others, his report of the sudden decline in hearing acuity on the left side, and his report of ineffective hearing aids. The VA treatment records also indicate severe hearing loss inasmuch as the Veteran has been unable to speak on the phone with providers. At the same time, the Board notes that VA treatment records, along with several VA examination reports addressing disorders other than hearing loss, indicate that the Veteran has been able to communicate with providers while undergoing in-person treatment. This evidence confirms hearing loss disability. But the clinical picture presented based medical treatment and examination between October 2014 and January 2019 is of a patient capable of hearing and understanding, and speaking to, medical personnel. Based on the foregoing evidentiary background, an 80 percent rating is appropriate for the period of appeal prior to the increase in rating to 100 percent. However, the evidence preponderates against any claim to a higher rating during this period. As the preponderance of the evidence is against the assignment of a rating higher than 80 percent prior to January 2019, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. REASONS FOR REMAND The Veteran asserts that he incurred hepatitis C during service. In December 2018, his representative offered several theories regarding possible transmission of the virus during service. In the February 2019 remand, the Board requested medical commentary regarding the various theories of causation. In response, the Veteran underwent VA compensation examination in November 2019. In the examination report, the examiner found hepatitis C likely unrelated to service. In support, the examiner cited evidence indicating initial diagnosis over 20 years after service in the early 2000s, and cited medical evidence indicating that the disorder is now dormant. But the examiner did not address whether it is at least as likely as not that transmission occurred as theorized in the December 2018 appellate brief. As such, a remand is warranted for issuance of an addendum report. See Stegall v. West, 11 Vet. App. 268 (1998) (the Board errs as a matter of law when it fails to ensure compliance with previous remand directives). The matter is REMANDED for the following action: Return the case to the examiner who conducted the November 2019 examination into hepatitis C, or to a suitable substitute, for issuance of an addendum opinion. After reviewing the electronic claims file, the examiner should again respond to the following question: Is it at least as likely as not (i.e., probability of 50 percent or more) that the Veteran’s diagnosed hepatitis C had its onset during service or is related to an in-service disease, event, or injury? In answering this question, consider and discuss the representative’s December 2018 argument. Please explain in detail any opinion provided and the supporting rationale. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a basis for doubting the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. (Continued on the next page)   In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.