Citation Nr: 21015384 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-46 573A DATE: March 17, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cranial swelling is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for vertigo is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for disorientation is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for memory loss is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left jaw pain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1980 to October 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss (listed as bilateral hearing loss); cranial swelling (listed as cranium swelling); vertigo; disorientation; memory loss; and left jaw pain. By this decision, the RO also denied entitlement to a TDIU. In April 2018, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In September 2018, the Board remanded the issues of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss (listed as hearing loss); entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cranial swelling; entitlement to compensation under the provisions of 38 U.S.C. § 1151 for vertigo; entitlement to compensation under the provisions of 38 U.S.C. § 1151 for disorientation; entitlement to compensation under the provisions of 38 U.S.C. § 1151 for memory loss; entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left jaw pain; and entitlement to a TDIU, for further development. This case was remanded partly to obtain a VA examiner opinion, with regard to the Veteran’s claims for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and for left jaw pain. The September 2018 Board remand indicated that the VA examiner must answer the following questions: (a) Whether it was at least as likely as not that one or more of the Veteran’s claimed additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and left jaw pain, were the result of the March 2017 brain surgery at the University of Utah. (b) If so, whether any such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA or University of Utah. (c) If the examiner determined that any such disability or disabilities was/were actually caused by the March 2017 brain surgery, but that it 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 or University of Utah, the examiner was to determine whether any such disability or disabilities was/were at due to an event not reasonably foreseeable. Pursuant to the September 2018 Board remand, a VA examiner provided a statement in August 2019. There is a notation that the Veteran’s claims file was reviewed. The examiner discussed the Veteran’s medical history in some detail. The examiner indicated that there was no medical evidence to state that hearing loss; cranial swelling; vertigo; disorientation; memory loss; and left jaw pain were a result of the March 2017 brain procedure at the University of Utah. The examiner stated that the Veteran would need a repeat hearing examination and that, unless a detailed hearing test showed a new, otherwise unexplained, unilateral left-sided sensorineural hearing loss after the brain surgery, which was not present before the brain surgery, it was unlikely that his claimed left-sided hearing loss was a result of the above temporal lobe brain procedure. The examiner reported that the Veteran’s left jaw pain appeared to be secondary to temporomandibular joint syndrome, and not to his brain surgery. The examiner maintained that she did not find any documented complaints of chronic or persistent vertigo or disorientation symptoms during the Veteran’s multiple doctor visits after the brain procedure in March 2017. The examiner stated that the temporary postoperative fluid collection, which she assumed was the cranial swelling, at the site of the surgery on the left temporal lobe, pursuant to an April 2017 magnetic resonance imaging (MRI) study), which was an expected surgical outcome, subsequently resolved as shown by repeated brain MRI studies thereafter. The examiner indicated that the Veteran’s memory loss was suspected to be multifactorial, and was contributed by psychological factors, untreated sleep apnea, chronic pain, and the use of narcotic pain medications. The examiner reported that the Veteran had since come off the narcotic pain medications. It was noted that his chronic pain had been determined to be myofascial in nature, and unrelated to his temporal lobe abcess drainage procedure in March 2017. The examiner stated that the Veteran did report left-sided headaches since his brain procedure, but that he did not take narcotic pain medication for such pain. The examiner indicated that, therefore, it was less likely than not that the Veteran’s cognitive/memory deficits were secondary to his left temporal lobe abscess drainage in March 2017. The examiner maintained that there was no concern for, or evidence of, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or the University of Utah, as a relationship was not found between the claimed conditions and the brain surgery. The examiner indicated that there was no medical evidence to state that hearing loss; cranial swelling; vertigo; disorientation; memory loss; and left jaw pain were a result of the March 2017 brain procedure at the University of Utah. The examiner added that there was no concern for, or evidence of, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or the University of Utah, as a relationship was not found between the claimed conditions and the brain surgery. The Board observes that, as to the Veteran’s claim for additional hearing loss, the examiner stated that he would need a repeat hearing examination and that, unless a detailed hearing test showed a new, otherwise unexplained, unilateral left-sided sensorineural hearing loss after the brain surgery, which was not present before the brain surgery, it was unlikely that his claimed left-sided hearing loss was a result of the above temporal lobe brain procedure. The Board observes that the Veteran has not been afforded a new VA audiological examination report, as to his claim for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss. It appears that the examiner found that the claimed left-sided hearing loss was not the result of the temporal brain procedure despite the lack of a new VA audiological examination. Additionally, the examiner found that the Veteran’s left jaw pain appeared to be secondary to temporomandibular joint syndrome and not his brain surgery, but she provided no rationale for that opinion. The examiner also indicated that she did not find any documented complaints of chronic or persistent vertigo or disorientation symptoms during the multiple doctor’s visits after the March 2017 brain procedure. The Board notes however, that the Veteran is competent to report symptoms of being disoriented or of dizziness, etc. See Davidson, 581 F.3d 1313 (Fed. Cir. 2009). The Board further notes that because the examiner did not find a relationship between the claimed conditions and the brain surgery, she did not specifically address whether were any such disabilities were due to an event not reasonably foreseeable. The Board also observes that the examiner was not able to address an, apparently, positive opinion provided by Dr. Zukas provided in December 2019. As discussed below, that opinion is currently of record, but illegible. In light of the above, the Board finds that that the Veteran has not been afforded a VA examination, with an opportunity to obtain responsive etiological opinions, following a thorough review of the entire claim folder, as to his claims for entitlement to compensation under the provisions of 38 U.S.C. § 1151, for additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and for left jaw pain. 38 C.F.R. § 3.159(c)(4); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that in a December 19, 2019 Fax, the Veteran’s attorney apparently provided a positive opinion, as to the Veteran’s claimed disabilities, by Dr. Zukas. The Board notes, however, that the opinion from Dr. Zukas, as currently of record, is illegible. In January 2021, the Board requested that the Veteran’s attorney send an additional copy of the December 19, 2019, faxed document, specifically the statement from Dr. Zukas. No response has been received. The Board finds that this matter should also be remanded to attempt to obtain a legible copy of the opinion from Dr. Zukas received on December 19, 2019. Finally, as the Veteran’s claim for a TDIU rating is inextricably intertwined with his claims for entitlement to compensation under the provisions of § 1151, this issue must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran’s attorney to obtain a legible copy of the opinion provided by Dr. Zukas, which was faxed to the Board on December 19, 2019. 2. Ask the Veteran to identify all medical providers who have treated him for additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and left jaw pain, since May 2019. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain records, inform the Veteran of such, and advise him he may obtain and submit those records. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the Veteran’s claims for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and for left jaw pain. The examiner must diagnose all current hearing disabilities; cranial swelling; vertigo; disorientation; memory loss; and/or left jaw disabilities. The examiner must then opine as to the following: (a) Whether it is at least as likely as not that any additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and/or left jaw pain, were caused by the Veteran’s March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc. (b) If a relationship between the claimed additional hearing loss; cranial swelling; vertigo; disorientation; memory loss; and/or left jaw pain, and the March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc., is shown, the examiner must opine as to whether it is as likely as not that any such disabilities and/or additional disability were the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or an event not reasonably foreseeable. The examiner must provide a detailed description of any residual disability and/or disabilities presently manifested as a result of the March 2017 University of Utah brain surgery, and VA treatment, surgeries, etc. If in rendering these opinions, the VA examiner finds that a VA audiological examination, or any other appropriate examination, must be provided to the Veteran, such should be scheduled as necessary. (Continued on the next page)   The examiner must specifically acknowledge and comment on the opinion from Dr. Zukas, received in December 2019, if a legible copy of such opinion is of record. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.