Citation Nr: 21031173 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-14 610 DATE: May 20, 2021 ORDER Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for loss of smell is denied. Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for right ear hearing loss is denied REMANDED Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for left ear hearing loss is remanded. Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran's loss of smell did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service, or result from 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. 2. The Veteran does not have a right ear hearing loss disability pursuant to 38 C.F.R. § 3.385. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of smell have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for loss of smell have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. 3. The criteria for service connection for right ear hearing loss not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 60 days for the Veteran to submit additional relevant evidence. In March 2021, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to consider the claims under the provisions of 38 U.S.C. § 1151 in the first instance. The Board notes that the AOJ adjudicated the claims as requested in an April 2021 supplemental statement of the case (SSOC), which has been associated with the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1151 Eligibility Under VA laws and regulations, when a veteran suffers additional disability 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 was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The veteran must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of 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. In determining that additional disability exists, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnosis 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 a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). 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, 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). 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. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). 1. Loss of Smell The Veteran seeks entitlement to service connection for loss of smell. Specifically, the Veteran asserts that his loss of smell began during active duty service following several colds. See October 2017 NOD. Alternatively, the Veteran asserts that he developed loss of smell as a result of treatment for a seizure disorder. In this regard, he asserts that during such treatment, he received an IV in his right arm which later became infected, and that such infection spread to his brain stem. See December 2020 Board Hearing Transcript. The evidence of record includes the Veteran's service treatment records (STRs) which are completely silent for any complaints or treatment related to a loss of smell condition. In July 2011, the Veteran reported that he lost his sense of smell more than 2 years prior following a cold. See VA Medical Records Received May 2017. An August 6, 2011 VA medical record shows the Veteran was seen for a neurological assessment. The record noted the Veteran had previously been seen at The University of Kansas Hospital (UKH) where he had been discharged, and that he wanted to receive treatment at VA. He complained of having a seizure that morning. An IV was placed in the right AC, the Veteran was started on Dilantin, and VA medical records show he was thereafter discharged. An August 17, 2011 UKH medical record shows the Veteran was admitted for left septic knee and was taken to the operating room where he underwent arthroscopic irrigation and debridement. Two days later, the Veteran was again treated for some residual infection. The likely source of the infection was found to be the previous cellulitis/abscess of his right upper extremity over the IV site. The Veteran underwent a VA neurology consultation in September 2011. He complained of a smell impairment for the past 15 to 20 years. His loss of smell was reported to have occurred following an infection. He was assessed with chronic anosmia. An October 2011 VA otolaryngology record noted the Veteran was scheduled for a consultation the prior July. The Veteran reported a long history of decreased or loss of smell dating back approximately 20 years. In addition, he reported a history of recurrent colds during which he would lose his sense of smell, but that his sense of smell would later return. However, following a severe cold 20 years prior, he reported that his sense of smell never returned. The physician assessed the Veteran with "anosmia likely related to viral insult." See VA Medical Records Received May 2017. In his October 2017 notice of disagreement (NOD), the Veteran asserted that he lost his sense of smell due to several colds during service. A March 2019 VA medical record shows the Veteran reported that he had had problems with impaired smell since approximately 1991. In May 2019, a VA otolaryngology record shows the Veteran presented to discuss a 15 years history of decreased ability to smell. He reported that his loss of smell occurred following a common cold. Since that time, he reported regaining some ability to smell, but not to the same degree. A November 2019 VA medical record shows he again reported impaired smell since approximately 1991. See VA Medical Records Received March 2021. At a December 2020 Board hearing, the Veteran's spouse testified that in August 2011, the Veteran had a seizure and was initially transported to a private hospital, and then transported to a VA hospital where he was examined and moved into intensive care, where he stayed for approximately 3 days. The spouse stated that a cause for the actual seizure could not be found. During this time, the spouse stated that the Veteran had an IV in his right arm and that nurses kept coming in to adjust the IV because an alarm kept sounding. After his release, the spouse stated that each day the IV entry site became more swollen and more infected. Thereafter, she stated that the Veteran began to complain that his head hurt, his body hurt, and that his left leg swelled around his knee and ankle and he was sick and running a high temperature. Thereafter, she testified that she brought him back to VA where they started draining his left leg, and then transferred him to a private hospital where they drained his leg three times, and he was diagnosed with sepsis which had gone all the way to his brain stem. The Veteran was later transferred to another VA hospital where his left leg and IV site infections were treated over an approximately two month period. As a result of his initial stay in the VA hospital in August 2011, the Veteran and his spouse asserted that he developed loss of smell and that he did not have that condition prior to the August 2011 infection. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection for a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, VA medical records reveal treatment for loss of smell. Accordingly, the remaining question is whether the Veteran's loss of smell is otherwise related to service. Initially, the Board has considered whether service connection is warranted on a direct basis. However, the STRs do not evidence any complaints or treatment related to loss of smell. The Board does recognize the Veteran's lay statements that he developed his loss of smell following a cold during service. See October 2017 NOD. However, during his December 2020 Board hearing, both the Veteran and his spouse testified that he did not have loss of smell prior to VA treatment in August 2011. Additionally, VA medical records show that the Veteran has consistently reported that his loss of smell began in approximately 1991. Based on the conflicting lay statements offered by the Veteran and his spouse, the Board finds they are unreliable historians and provides their lay statements little probative value. The Board further notes that statements made to clinicians for the purpose of treatment are considered reliable because one seeking medical treatment is aware of the necessity for being truthful to secure proper care. See Rucker v. Brown, 10 Vet. App. 67 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Accordingly, the Board finds that statements noted in the VA medical records with regard to the onset of the Veteran's loss of smell (i.e. 1991) are more probative than statements he offered in support of his claim for benefits. Therefore, as the evidence does not show complaints or treatment for loss of smell during service, and as 1991 has been shown to be the date of onset for the development of the condition, entitlement to service connection on a direct basis is not warranted. Turning to entitlement to compensation under 38 U.S.C. § 1151, the Board finds that the weight of the evidence does not establish that the Veteran's loss of smell is due to his IV site infection or subsequent septic left knee. Specifically, as noted above, VA medical records clearly show his loss of smell began in 1991; prior to the August 2011 VA treatment he asserts caused his loss of smell. Therefore, as the onset of the condition clearly predated his August 2011 VA treatment, it cannot be said that his loss of smell resulted from VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The Board recognizes the Veteran and his spouse's lay statements that he did not have loss of smell prior to his August 2011 VA treatment. However, those statements are directly contradicted by VA medical records noting the presence of the condition well before that time period. See July 2011 VA Medical Record noting loss of smell more than 2 years prior. In addition, such assertions are also directly contradicted by prior statements provided by the Veteran, who, in September and October 2011, reported a 15 to 20 years history of loss of smell. Accordingly, the Board finds the Veteran and his spouse to be unreliable historians and little probative value is assigned to their statements regarding the onset of the Veteran's loss of smell. The Board acknowledges that the Veteran has not been afforded a VA examination that specifically addresses both his direct service connection and 1151 claims for loss of smell, but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with service or treatment provided in August 2011. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As discussed above, the Board finds that the evidence of record clearly establishes that the onset of the claimed disability occurred in approximately 1991, approximately 24 years following service, and approximately 10 years prior to the treatment the Veteran asserts precipitated his loss of smell. Therefore, the Board finds a VA medical opinion is not necessary to decide this claim. 38 C.F.R. § 3.159(c)(4)(i)(C). Thus, absent credible evidence showing that the development of the Veteran's loss of smell occurred during service or as a result of his August 2011 VA treatment, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Right Ear Hearing Loss The Veteran seeks entitlement to service connection for right ear hearing loss. Specifically, the Veteran asserts that his right ear hearing loss began during active duty service. See October 2017 NOD. Alternatively, the Veteran asserts that he developed right ear hearing loss as a result of treatment for a seizure disorder. In this regard, he asserts that during such treatment, he received an IV in his right arm which later became infected, and that such infection spread to his brain stem. See December 2020 Board Hearing Transcript. The evidence of record includes an August 2011 VA medical record showing the Veteran denied any decreased hearing. Another August 2011 VA medical record shows the Veteran denied having any hearing loss. See VA Medical Records Received May 2017. In a February 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran reported hearing loss in his left ear. The Veteran further reported that his left ear ringing and hearing loss stemmed from basic training and the time he was deployed to Europe. The Veteran underwent a VA examination in September 2017. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 30 30 Speech recognition scores were 98 percent. The examiner additionally opined that it was not "at least as likely as not (50% probability or greater)" that the Veteran had right ear hearing loss that was etiologically related to service. With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection: "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection requires evidence that establishes that the Veteran currently has a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this regard, during the period on appeal, audiometric data shows that the Veteran does not have right ear hearing loss that rises to the level of being a disability as defined under 38 C.F.R. § 3.385. While the current disability element can in some circumstances be established with a showing of functional impairment even without a diagnosis, VA has specifically defined what a current disability represents for hearing loss. Absent any evidence that the Veteran has a right ear hearing loss disability as defined under 38 C.F.R. § 3.385, his claim for service connection must be denied. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his 38 U.S.C. § 1151 claim for right ear hearing loss, but finds no such examination was required because the evidence does not indicate that the Veteran has had a right ear hearing loss disability as defined under 38 C.F.R. § 3.385 at any point during the period on appeal. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, the Board finds another VA medical opinion is not necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i)(C). In sum, the evidence shows that during the period on appeal, the Veteran has not had disabling right ear hearing loss for VA purposes. For that reason, he is not entitled to service connection for right ear hearing loss, and this appeal is denied. REASONS FOR REMAND 3. Left Ear Hearing Loss 4. Tinnitus The Veteran asserts that his left ear hearing loss and tinnitus are directly related to service. Alternatively, the Veteran asserts that he developed bilateral hearing loss and tinnitus under the provisions of 38 U.S.C. § 1151, as a result of an IV site infection. The evidence of record includes an August 2011 VA medical record showing the Veteran denied having tinnitus or decreased hearing. See VA Medical Records Received May 2017. Thereafter, a May 2017 VA medical record noted ringing in the left ear as a hearing barrier. See VA Medical Records Received March 2021. The Board notes that the Veteran was provided a VA examination in September 2017 which confirmed diagnoses for left ear hearing loss for VA purposes and tinnitus. However, that examination only considered the claims on the basis of direct service connection. Accordingly, as both the left ear hearing loss and tinnitus are not shown to have been present prior to August 2011, the date of treatment related to the Veteran's 38 U.S.C. § 1151 claim, the Board finds that a remand is necessary to obtain an addendum opinion that addresses this theory of entitlement to benefits. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Refer the Veteran's claims file to the VA examiner who provided the September 2017 VA hearing loss and tinnitus examinations, or another qualified examiner. The examiner should provide the following opinions: (a) Is at least as likely as not (a 50 percent probability or greater) that the Veteran's left ear hearing loss and/or tinnitus are a result of the medical care, or a lack thereof, to include failure to timely diagnose or treat, received at the VA medical center, to include as a result of the August 2011 IV site infection? Please explain why or why not. (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left ear hearing loss and/or tinnitus was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? Please explain why or why not. (c) Based upon the specific facts and circumstances of the Veteran's case, was any left ear hearing loss and/or tinnitus a reasonably foreseeable outcome of the treatment received? Please explain why or why not Clear rationales for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.