Citation Nr: 22014444 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 20-05 204 DATE: March 12, 2022 ORDER Compensation pursuant to 38 U.S.C. § 1151 for a perforated ear drum due to a March 2016 impacted cerumen (earwax) removal is denied. REMANDED Compensation pursuant to 38 U.S.C. § 1151 for an acquired psychiatric disorder incurred as a result of a March 2016 impacted cerumen removal. FINDINGS OF FACT 1. The Veteran served on active duty from September 1981 to April 1984. 2. On March 18, 2016, the Veteran underwent a procedure to remove impacted cerumen; however, he did not sustain a permanent, chronic, additional disability, to include a right ear disorder or right ear hearing loss as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for perforation of a right eardrum due to an impacted cerumen removal performed at a VA medical center in March 2016 have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5107, 5121A (2012); 38 C.F.R. § 3.361 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in May 2021. A copy of the transcript has been associated with the claims file. Turning to the relevant law and regulations, a veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the appellant's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the appellant under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. In determining whether a veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the condition after the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that he or she has an additional disability or died does not establish cause. 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 diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the appellant's or, in appropriate cases, the appellant's representative's informed consent. The second prong of proximate causation requires that the appellant's additional disability or death be an event that was not reasonably foreseeable. This fact is 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment, the expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). Failure "to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." McNair v. Shinseki, 25 Vet. App. 98, 107 (2013). The Veteran seeks compensation benefits under 38 U.S.C. § 1151 for damage to the right eardrum which he contends resulted from an earwax removal procedure in March 2016. He also seeks compensation benefits under 38 U.S.C. § 1151 as a result of developing psychiatric symptoms due to the March 2016 procedure. Clinical records showed that, in March 2016, the Veteran presented to a VA Medical Center for a bilateral impacted cerumen removal. When the clinician treated the right ear, the angiocath "shot off" and hit the right eardrum. Clinical records also showed that the right tympanic membrane was marked as abnormal, and that the Veteran was treated with a paper patch and Bacitracin ointment; however, the clinician wrote that the right tympanic membrane "tolerated well." In a June 2017 VA opinion, the clinician wrote that he was unable to determine if the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA Personnel and/or "the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, as he was not trained in ear, nose, and throat (ENT) medicine and/or the ear irrigation procedure and was not familiar with the standards of care for this procedure. However, he also stated that the Veteran's right ear had fully resolved after the March 2016 procedure. Further, in a March 2018 clinical record, the Veteran reported that he incurred right ear hearing loss as a result of the March 2016 cerumen removal; however, upon examination, the right ear was normal. In addition, at the May 2021 hearing, the Veteran testified that two weeks prior, he was seen by a non-VA clinician who told him that the right eardrum had healed. The record reflects that the Veteran incurred a perforated right eardrum as a result of the March 2016 impacted cerumen removal; however, the medical evidence showed that the right ear responded to treatment and healed. Further, while he contended that he developed hearing loss in the right ear, right ear hearing was normal. Therefore, the medical evidence does not support that he incurred a permanent right ear disability as a result of the March 2016 impacted cerumen removal. The Board has considered the Veteran's assertions and testimony that the perforated right eardrum resulted from fault on part of VA in failing to properly treat him on March 18, 2016. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. As such, the medical records are more probative than the Veteran's lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran seeks compensation benefits under 38 U.S.C. § 1151 due to developing psychiatric symptoms as a result of a March 2016 earwax removal procedure that resulted in a perforated eardrum. Specifically, clinical records showed that the Veteran reported experiencing depression and anxiety as a result of the March 2016 procedure and would cancel all ENT appointments. Clinical records also showed that he was diagnosed with major depressive disorder. In a June 2017 VA opinion, the clinician wrote that he was unable to determine if the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA Personnel and/or "the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, as he was not trained in ENT medicine and/or the ear irrigation procedure and was not familiar with the standards of care for this procedure. As the Veteran has a psychiatric disability which he asserts is due to the March 2016 impacted cerumen removal, an opinion is needed as to whether development of major depressive disorder was reasonably foreseeable due to the procedure. The matter is REMANDED for the following actions: 1. Direct the claims file to a clinician familiar with cerumen removal for a medical opinion to address the 38 U.S.C. § 1151 claim. The clinician is asked to address the following: Did the Veteran sustain any additional psychiatric disability as a result of a VA impacted cerumen removal in March 2016? If additional psychiatric disability was incurred as a result of the impacted cerumen removal, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? If additional psychiatric disability was sustained as a result of the impacted cerumen removal, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider. If additional psychiatric disability was sustained as a result of the impacted cerumen removal cardiac, was this a risk that a reasonable health care provider (1) would have considered to be an ordinary risk of the treatment, or (2) would have disclosed in connection with the informed consent procedures. The clinician should provide a rationale for all opinions rendered. 2. If the clinician determines that an examination or a psychiatric consultation is necessary in order to provide the requested opinions, then it should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.