Citation Nr: 22019167 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-46 573A DATE: March 31, 2022 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss is denied. 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 due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran does not have additional hearing loss that was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of U.S.C. § 1151 for additional hearing loss have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION 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 and March 2021, 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. Entitlement to Compensation under the provisions of 38 U.S.C. § 1151 for additional Hearing loss Disability In pertinent part, 38 U.S.C. § 1151 reads as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and-- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was - (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. Pursuant to 38 C.F.R. § 3.361, to determine whether additional disability exists within the meaning of Section 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died 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 diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death 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). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish causation, it must be shown that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c). In establishing causation, it must be shown that (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Under the provisions of 38 U.S.C. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2011). In Ollis v. Shulkin, 857 F. 3d 1338 (Fed. Cir. 2017), the Federal Circuit recognized that the benefits under 38 U.S.C. § 1151 may be required where the non-VA treatment performed as a result of VA referral results in disability, and thus the VA action is the proximate cause of the resulting disability. This analysis may extend to affording benefits based on an unforeseen event resulting in the disability, under 38 U.S.C. § 1151(a)(1)(B). Service connection is in effect for left ear hearing loss; tinnitus; and an adjustment disorder, with mixed anxiety and depression. The Veteran contends that he has additional hearing loss as a result of VA treatment. He specifically maintains that he has additional hearing loss as a result of his March 2017 brain surgery at the University of Utah, following a transfer from a VA facility, as well as from VA treatment, surgeries, etc. The Veteran reports that he underwent a medial branch block on his cervical spine in March 2017, at a VA facility, and that two days later, he suffered headaches. He indicates that he underwent computed tomography imaging at a VA facility, which showed a cracked tooth, and that a magnetic resonance imaging study (MRI), at that time, showed a left temporal lobe abscess. The Veteran states that he was then sent to the University of Utah where he underwent a craniotomy for evacuation of the abscess, and that he has suffered additional hearing loss since that time. He relates that his hearing has been reduced by fifty percent since his brain surgery. The Veteran served on active duty in the Army from October 1980 to October 1982. His DD Form 214 lists his occupational specialty as a metal worker for one year and five months. The Veteran's service treatment records do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. Post-service private and VA treatment records, including VA examination reports, show treatment for disorders, including left ear hearing loss, and/or bilateral hearing loss, as defined by 38 C.F.R. § 3.385. A March 6, 2017, VA anesthesia pain service note indicates that the Veteran had chronic neck pain with some shoulder or arm radiation depending on his position. It was noted that the Veteran reported that his left-side was worse than his right-side. The examiner indicated that a diagnostic medial branch block on the left, at C3-C5, was planned on that date. The procedure type was listed as a left C3, C4, and C5 medial branch block. The postoperative diagnosis was cervical facet arthropathy. A March 16, 2017, VA emergency department note reflects that the Veteran was seen with a chief complaint of a headache. The examiner reported that the Veteran presented with what he stated was the worst headache he had ever felt. It was noted that the Veteran reported that he came in for a cervical nerve block on March 6, 2017, and that he did receive a left C3, C4, and C5, medial branch block through the anesthesia pain service. The examiner related that the Veteran stated that his neck was numb for about two days, and that after the two days, he had a sudden onset of headaches that were severe, and so severe that he couldn't tolerate them at home anymore, and he had to come to the emergency department. The report indicates that the Veteran underwent a computed tomography scan, as to his brain, as well as an MRI study, as to his brain. The assessment was a possible brain abscess. The examiner indicated, as to a plan, that the Veteran was to be transferred over to the University of Utah in their Neuro Critical Care unit, and that a physician would be his accepting physician at that facility. It was noted that the plan was discussed with the Veteran, and that he expressed understanding and agreement with the plan. A March 26, 2017, discharge summary from the University of Utah Healthcare indicates that the Veteran had undergone a cervical spine injection for chronic neck pain on March 6, 2017, at a VA hospital, and that he had been suffering headaches since that time. It was noted that the Veteran underwent a computed tomography scan, of his head, as well as MRI study, which showed evidence of a left temporal tip brain abscess, and that the Veteran was transferred to the Neuro Critical Care unit for further care. That examiner reported that the Veteran denied any risk factors (recent infection, diabetes, immune suppression, etc.,), for the abscess, and that the Veteran's examination was non-focal. It was noted that the Veteran denied that he had fevers or chills. The examiner indicated that the Veteran underwent a left temporal craniotomy for drainage of the brain abscess, and that he tolerated the procedure well. The examiner stated that, postoperatively, the Veteran was extubated successfully and taken to recovery in stable condition, and that he was then transferred for observation and postoperative care. The examiner reported that the Veteran then went to a dental clinic for a tooth extraction, as it was felt that the tooth abscess may have been the precipitating cause of his brain abcess. The examiner maintained that the time of discharge, the Veteran was in good condition with plans for a close follow-up. The discharge diagnosis was a brain abscess. It was noted that the Veteran was receiving antibiotic treatment as an outpatient. A May 2017 VA audiological examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that his hearing loss began after he had an operation on his left temporal lobe to clear up a staph infection that he believed he suffered after a cervical spine injection. It was noted that the temporal lobe surgery was in March 2017. The Veteran stated that when he regained awareness after his surgery, he noted that his left ear had gone completely deaf. He maintained that since that time, he had regained some hearing, but that it was not back to normal. The Veteran indicated that he had a sensation of fullness in the left ear that he could not clear, as well as lingering tenderness and numbness from the surgery. He reported that he had military noise exposure, without the use of hearing protection. The Veteran related that after the military, he worked in industrial jobs for twenty years, and he wore hearing protection some of the time. It was noted that the Veteran stated that he had noisy hobbies in his lifetime, mostly without the use of hearing protection. The diagnoses included normal hearing in the right ear, and sensorineural hearing loss, in the frequency range of 500 to 4000 Hertz, in the left ear. The examiner did not report speech recognition scores, using the Maryland CNC Test. The examiner stated that the Veteran's right ear hearing loss was not at least as likely as not (50 percent or greater probability) caused by, or a result of, an event during military service because the Veteran hearing in the right ear was within normal limits. The examiner indicated that the Veteran's left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by, or a result of, an event during military service. The examiner reported that the Veteran served in the Army as a metalworker, which had a high probability for noise exposure. The examiner stated that despite the likelihood that the Veteran was exposed to significant noise, his test results show that his hearing was normal for VA purposes as he left the military in 1982, and that, therefore, his hearing loss is not the result of military noise exposure. An August 2019 statement from a VA examiner includes 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 was 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 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 condition and the brain surgery. A December 2019 statement from R. Z., D.O., indicates that he examined the Veteran's medical records pertaining to his brain infection, which occurred after a cervical spine injection. It was noted that an MRI study found a tooth infection at the same time that the brain infection was identified. Dr. R. Z., stated that he believed it was possible and likely that the brain infection was related to the steroid injection, with the tooth infection. Dr. R. Z., reported that steroids could have systemic effects, including elevated blood pressure and hyperglycemia, even when given intra-articularly. Dr. R. Z., indicated that it was as likely as unlikely that the administration of steroids could have a systemic effect on the immune system, depression the immune system. A June 2021 VA audiological examination report includes a notation that the Veteran's claims file was reviewed. The diagnoses included normal hearing in the right ear, and sensorineural hearing loss, in the frequency range of 500 to 4000 Hertz, in the left ear. The Board notes that although the examiner listed a diagnosis of normal hearing in the right ear, the Veteran's speech discrimination score, using the Maryland CNC Test, was 76 percent. Therefore, the Veteran has right ear hearing loss, pursuant to 38 C.F.R. § 3.385. The examiner indicated that the Veteran's right ear hearing loss was not at least as likely as not (50 percent or greater probability) caused by, or a result of, an event during miliary service. The examiner reported that there was no change in the thresholds from the entrance to the separation audiograms, and that there were no complaints of right ear hearing loss seen in the record. The examiner stated that the Veteran had normal right ear hearing on the examination. The examiner maintained that the Veteran's left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by, or a result of, an event during military service. The examiner reported that there was no change in the thresholds from the entrance to the separation audiograms, and that there were no complaints of left ear hearing loss seen in the record (apparently during service). The examiner maintained that the Veteran stated that his left ear hearing loss began after his military service. The examiner indicated that the Veteran's left ear hearing loss was less likely than not caused by, or related to, an event during military service. The examiner stated that there was nothing seen in the record that would support that the Veteran's claimed additional hearing loss was incurred in, or caused by, his March 2017 brain surgery. The examiner reported that there were no additional audiograms seen in the record to support additional hearing loss from a 2017 brain surgery. The examiner indicated that, therefore, it was less likely than not caused by, or related to, the 2017 brain surgery at the University of Utah. The examiner further reported that he had read the opinion from Dr. R. Z. The examiner stated that he could not speak to the conclusions from Dr. R. Z., as he did not have a medical license. The examiner maintained that any link to the Veteran's hearing loss would be from a non-medical point of view. The examiner indicated that steroids were often used to sometimes help reduce tinnitus and it was less likely than not something that would cause hearing loss. The probative value of medical opinion evidence "is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators..." Guerrieri, 4 Vet. App. At 467, 470-71. The determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens, 7 Vet. App. At 429, 433. The Board observes that there are opinions of record that address the Veteran's claim for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss, at least in part, pursuant to a May 2017 VA audiological examination report; an August 2019 statement from a VA examiner; a December 2019 statement from Dr. R. Z.; and a June 2021 VA audiological examination report. The Board notes that a May 2017 VA audiological examination report relates diagnoses including normal hearing in the right ear, and sensorineural hearing loss, in the frequency range of 500 to 4000 Hertz, in the left ear. The Board observes that the examiner did not report speech discrimination scores, using the Maryland CNC Test. The examiner, following a review of the claims file, stated that the Veteran's right ear hearing loss was not at least as likely as not (50 percent or greater probability) caused by, or a result of, an event during military service because the Veteran hearing in the right ear was within normal limits. The examiner indicated that the Veteran's left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by, or a result of, an event during military service. The examiner reported that the Veteran served in the Army as a metalworker, which had a high probability for noise exposure. The examiner stated that despite the likelihood that the Veteran was exposed to significant noise, his test results show that his hearing was normal for VA purposes as he left the military in 1982, and that, therefore, his hearing loss is not the result of military noise exposure. The Board observes that the Veteran is already service-connected for left ear hearing loss. The examiner solely addressed direct service connection for right ear hearing loss and for left ear hearing loss, and the examiner did not address the Veteran's claim for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss. Therefore, the Board finds that the examiner's opinions, pursuant to the May 2017 VA audiological examination report, are not very probative in this matter. The Board notes that an August 2019 statement from a VA examiner discussed the Veteran's medical history in some detail. The examiner, following a review of the claims file, indicated that there was no medical evidence to state that hearing loss was 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 further 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 condition and the brain surgery. The Board observes that 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 was not afforded a new VA audiological examination report, at the time of the examiner's opinions. It appears that despite the lack of a new audiological examination, the examiner still found that the claimed left-sided hearing loss was not the result of the temporal brain procedure. The Board also notes that the examiner was not able to review a statement from Dr. R. Z., which was not of record at the time of the August 2019 statement. Therefore, the Board finds that the opinions provided by the examiner, pursuant to the August 2019 statement, are not very probative in this matter. The Board notes that a December 2019 statement from Dr. R. Z., indicates that he examined the Veteran's medical records pertaining to his brain infection, which occurred after a cervical spine injection. It was noted that an MRI study found a tooth infection at the same time that the brain infection was identified. Dr. R. Z., stated that he believed it was possible and likely that the brain infection was related to the steroid injection, with the tooth infection. Dr. R. Z., reported that steroids could have systemic effects, including elevated blood pressure and hyperglycemia even when given intra-articularly. Dr. R. Z., indicated that it was as likely as unlikely that the administration of steroids could have a systemic effect on the immune system, depression the immune system. The Board observes that Dr. R. Z., following a review of the Veteran's medical records, indicated that he believed it was possible and likely that the brain infection was related to the steroid injection, with the tooth infection. Dr. R. Z., also maintained that it was as likely as unlikely that the administration of steroids could have a systemic effect on the immune system, depression the immune system. The Board notes Dr. R. Z.'s opinion essentially solely addresses the etiology of the Veteran's brain surgery at the University of Utah in March 2017. Dr. R. Z.,'s opinions do not address whether the Veteran had any additional hearing loss as a result of the March 2017 brain surgery at the University of Utah, and any VA treatment and surgeries, etc. Therefore, the Board finds that the opinions provided by Dr. R. Z., pursuant to the December 2019 statement, are not very probative in this matter. The Board notes that a June 2021 VA audiological examination report relates diagnoses including normal hearing in the right ear, and sensorineural hearing loss, in the frequency range of 500 to 4000 Hertz, in the left ear. The Board notes that although the examiner listed a diagnosis of normal hearing in the right ear, the Veteran's speech discrimination score, using the Maryland CNC Test, was 76 percent. Therefore, the Veteran has right ear hearing loss, pursuant to 38 C.F.R. § 3.385. The examiner indicated that the Veteran's right ear hearing loss was not at least as likely as not (50 percent or greater probability) caused by, or a result of, an event during miliary service. The examiner reported that there was no change in the thresholds from the entrance to the separation audiograms, and that there were no complaints of right ear hearing loss seen in the record. The examiner stated that the Veteran had normal right ear hearing on the examination. The examiner maintained that the Veteran's left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by, or a result of, an event during military service. The examiner reported that there was no change in the thresholds from the entrance to the separation audiograms, and that there were no complaints of left ear hearing loss seen in the record (apparently during service). The examiner maintained that the Veteran stated that his left ear hearing loss began after his military service. The examiner indicated that the Veteran's left ear hearing loss was less likely than not caused by, or related to, an event during military service. The examiner further stated that there was nothing seen in the record that would support that the Veteran's claimed additional hearing loss was incurred in, or caused by, his March 2017 brain surgery. The examiner reported that there were no additional audiograms seen in the record to support additional hearing loss from a 2017 brain surgery. The examiner indicated that, therefore, it was less likely than not caused by, or related to, the 2017 brain surgery at the University of Utah. The examiner further reported that he had read the opinion from Dr. R. Z. The examiner stated that he could not speak to the conclusions from Dr. R. Z., as he did not have a medical license. The examiner maintained that any link to the Veteran's hearing loss would be from a non-medical point of view. The examiner indicated that steroids were often used to sometimes help reduce tinnitus and it was less likely than not something that would cause hearing loss. The Board notes that the Veteran is already service-connected for left ear hearing loss. The Board also observes that although the examiner indicated that the Veteran had normal hearing in the right ear, he actually has right ear hearing loss, for VA purposes, pursuant to 38 C.F.R. § 3.385. The Board notes that the examiner's opinions, as to direct service connection for right ear hearing loss and left ear hearing loss, are not particularly probative in this matter because the sole issue before the Board is the Veteran's claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss. The Board notes that the examiner did provide opinions, as to that claim. The examiner specifically stated that nothing was seen in the record that would support that the Veteran's claimed additional hearing loss was incurred in, or caused by, his March 2017 brain surgery, and that, therefore, it was less likely than not that any additional hearing loss was caused by, or related to, the 2017 brain surgery at the University of Utah. The examiner also referred to the opinion by Dr. R. Z., and he stated that he could not speak to those conclusions due to a lack of a medical license. The Board notes that the examiner reviewed the Veteran's claims file, provided etiological opinions as to his claim for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss, and provided rationales for his opinions. Therefore, the Board finds that the examiner's opinions, as to the Veteran's claim for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss, are the most probative in this matter. See Wensch, 15 Vet. App. at 362. The Board finds that the evidence shows that the Veteran does not have additional hearing loss, as a result of the March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc. Therefore, the evidence does not show that he has additional hearing loss for which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing such care, or that the proximate cause of any additional disability was an event that was not reasonably foreseeable. Thus, the legal requirements are not met for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss. The Board acknowledges that the Veteran maintains in his statements and testimony that VA treatment, to include the referral to the University of Utah for his March 2017 brain surgery, caused additional hearing loss. Although he is competent to report that he had hearing problems or that he felt his hearing problems worsened, he is not competent to diagnose additional hearing loss as related to VA treatment, to include the March 2017 brain surgery at the University of Utah. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). Similarly, the Veteran is not competent to provide either a diagnosis or the medical nexus, and a probative medical opinion from a VA examiner, pursuant to a June 2021 VA audiological examination report, specifically found that the Veteran does not have any additional hearing loss related to his March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc. Thus, the Veteran's lay assertions are not competent or sufficient. See Jandreau, 492 F.3d 1372. For the above reasons, the evidence is neither evenly balanced, nor approximately so, with regard to whether the Veteran's claim for compensation under the provisions of 38 U.S.C. § 1151 for additional hearing loss, is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another, is the benefit of the doubt doctrine not for application). REASONS FOR REMAND The remaining issues on appeal are 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. This case was remanded in March 2021, partly to schedule the Veteran for a VA examination as to his claims for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cranial swelling; vertigo; disorientation; memory loss; and for left jaw pain. The examiner was to diagnose all current cranial swelling; vertigo; disorientation; memory loss; and/or left jaw disabilities. The March 2021 Board remand also directed that the examiner opine as to the following: (a) Whether it was at least as likely as not that any 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 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., was shown, the examiner was to opine as to whether it was as likely as not that any such disabilities 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 was to further 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. The Board further indicated that the examiner must specifically acknowledge and comment on the opinion from Dr. R. Z., received in December 2019, if a legible copy of such opinion was of record. Pursuant to the March 2021 Board remand, the Veteran was afforded a VA central nervous system and neuromuscular diseases examination in June 2021. There is a notation that the Veteran's claims file was reviewed. The diagnosis was a left temporal lobe abscess. The Veteran was also afforded a VA temporomandibular disorders examination, by the same examiner who conducted the June 2021 VA central nervous system and neuromuscular diseases examination. There is a notation that the Veteran's claims file was reviewed. The diagnosis was left temporomandibular joint dysfunction. The examiner indicated that the claimed conditions were less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner indicated that it was less likely than not that the Veteran's claimed brain swelling/temporal lobe abscess was incurred in, or caused by, his surgery for the condition and/or his treatment at the VA in March 2017. The examiner reported that the Veteran did undergo a medial branch block for cervical degenerative disc disease in early March 2017, and that he reported the onset of headaches about two days later. The examiner stated that approximately one week after his procedure, he presented at the University of Utah for worsening symptoms. It was noted that imaging revealed a periapical abscess. The examiner indicated that an MRI imaging scan demonstrates a left temporal lobe abscess. The examiner related that the Veteran underwent a successful craniotomy in March 2017 for evacuation/drainage of the abscess. It was noted that serial imaging studies document resolution of the abscess, and that a culture of the abscess reveals a polymicrobial infection consistent with oral flora and most likely due to the Veteran's periapical abscess. The examiner maintained that the Veteran's medial branch blocks did involve the use of a corticosteroid, which had the potential for immunosuppression, but that it was his opinion that it was less likely than not that the corticosteroid block procedure resulted in the development of a brain abscess due to aggravation of his periapical abscess due to immunosuppression. The examiner also found that it was less likely than not that the Veteran's claimed vertigo was incurred in, or caused by, his brain surgery, and/or treatment at the VA in March 2017. The examiner reported his opinion was based primarily on the fact that he found no official diagnosis of vertigo in the claims file for the year 2017 or since. The examiner maintained that his examination was also negative for any objective signs of vertigo. The examiner further indicated that it was less likely than not that the claimed left jaw pain was incurred in, or caused by, the Veteran's brain surgery at the University of Utah and/or his VA treatment in March 2017. The examiner stated that there was no documentation of left jaw pain until an emergency department note dated in February 2018, which was almost a year after the Veteran's treatment at the VA, and his subsequent brain surgery in March 2017. The examiner reported that he also did not find a formal diagnosis for the Veteran's left jaw pain in the claims file, and that jaw pain was a symptom and not an actual diagnosis. The examiner maintained that the Veteran appeared to have signs of left temporomandibular dysfunction, but such was likely coincidental, and not causally related to his treatment at the VA in March 2017, or to his brain surgery for a brain abscess in March 2017 at the University of Utah. In a January 2022 addendum opinion, the same examiner stated that Dr. R. Z., pointed out the potential systemic effects of a steroid injection on the immune system, and that he argued that both the tooth infection and the brain infection occurred simultaneously and were the direct result of the cervical steroid injection. The examiner maintained that he disagreed with that opinion. The examiner reported that the systemic effects of a single cervical steroid infection would be minimal. It was noted that the association of a periapical abscess and the development of a brain abscess was a well-documented phenomena due to the fact that they were anatomically adjacent, and seeding could occur due to hematogenous spread of infection. The examiner indicated that consequently, his stated opinions remained unchanged after the review of the statement from Dr. R. Z. The Board observes that the examiner provided detailed opinions as to the Veteran's claims for compensation under the provisions of 38 U.S.C. § 1151 for cranial swelling; vertigo; and for left jaw pain. The Board notes, however, that the examiner's opinions are somewhat problematic, and, therefore, inadequate. For example, the examiner specifically stated that there was no documentation of left jaw pain until an emergency department note dated in February 2018, which was almost a year after the Veteran's treatment at the VA, and his subsequent brain surgery in March 2017. The Board notes, however, that the Veteran reported that he had left jaw pain when he filed a claim in June 2017, which is approximately seven months before the February 2018 date provided by the examiner. The Board notes that the Veteran is competent to report symptoms of left jaw pain. See Davidson, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, the examiner stated that the Veteran appeared to have signs of left temporomandibular dysfunction, but such was likely coincidental, and not causally related to his treatment at the VA in March 2017, or to his brain surgery for a brain abscess in March 2017 at the University of Utah. The examiner did not provide any rationale for why the Veteran's left temporomandibular joint dysfunction was coincidental, and not due to his brain surgery in March 2017, despite reporting left jaw pain a few months after that surgery. The Board further notes that the examiner stated that that it was less likely than not that the Veteran's claimed vertigo was incurred in, or caused by, his brain surgery, and/or treatment at the VA in March 2017, and that his opinion was based primarily on the fact that he found no official diagnosis of vertigo in the claims file for the year 2017 or since. The Board notes, however, that the Veteran is competent to report symptoms of dizziness and/or vertigo, etc. See Davidson, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to the March 2021 Board remand, the Veteran was also afforded a VA psychiatric examination in June 2021. There is a notation that the Veteran's claims file was reviewed. The diagnoses were an adjustment disorder, with mixed anxiety and depression, chronic, and an unspecified neurocognitive disorder. The examiner indicated that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that the Veteran endorsed symptoms consistent with a diagnosis of an adjustment disorder, with mixed anxiety and a depressed mood, chronic. It was noted that the Veteran identified the symptoms as occurring after his surgery in 2017 secondary to lifestyle changes and chronic pain. The examiner stated that the Veteran completed a neuropsychological testing in July 2021, and that he was diagnosed with an unspecified neurocognitive disorder. The examiner referred to the testing results. The examiner indicated that the Veteran described that he did not have issues with his memory until his brain infection, which occurred in 2017. The examiner maintained that records support that the Veteran was experiencing neurocognitive impairment after the brain incident. The examiner stated that while such did not occur during service, it did occur at a VA hospital in Utah per his reports and records. The examiner reported that while the symptoms from the Veteran's diagnosed adjustment disorder may contribute to the issues in is records, it was at least as likely as not that the Veteran's neurocognitive impairment was due to his experiences following the infection and subsequent brain surgery. The examiner stated that memory loss and disorientation were not psychiatric diagnoses. The examiner related that memory loss and disorientation may be symptoms of a mental health condition. It was noted that during the examination, there was no evidence that the Veteran experienced disorientation. The examiner referred to July 2017 neuropsychological testing. The examiner indicated that considering that information, an adjustment disorder, with mixed anxiety and a depressed mood, chronic, and the unspecified neurocognitive disorder were at least as likely as not (50 percent or greater probability) incurred in, or caused by, the Veteran's March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc. The examiner indicated that it was beyond the scope of her practice to provide an opinion as to the question regarding if a relationship between the claimed disorientation and memory loss, and the March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc., was shown, was it as likely as not that any such disabilities 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 also stated that it was beyond the scope of her practice to provide a comment on the statement from Dr. R. Z. The Board observes that the examiner found that an adjustment disorder, with mixed anxiety and a depressed mood, chronic, and the unspecified neurocognitive disorder were at least as likely as not incurred in, or caused by, the Veteran's March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc. The Board observes that the Veteran is already service-connected for an adjustment disorder, with mixed anxiety and depression. The Board notes that although the examiner essentially found that the Veteran's unspecified neurocognitive disorder, which apparently includes memory loss and disorientation, was a result of the March 2017 brain surgery at the University of Utah, the examiner stated that it was beyond the scope of her practice to address whether such disabilities 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, as requested in the March 2021 remand. The Board notes that such information is necessary, pursuant to the criteria of 38 U.S.C. § 1151. 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 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). 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). Recently, in Snider v. McDonough, 35 Vet. App. 1 (2021), the United States Court of Appeals for Veterans Claims held that if the Board denies a referral, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. Here, in light of the evidence of record, the Board finds that referral for extraschedular TDIU consideration is warranted. Id. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for cranial swelling; vertigo; disorientation; memory loss; and left jaw pain, since March 2020. 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. 2. 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 cranial swelling; vertigo; disorientation; memory loss; and for left jaw pain. The examiner must diagnose all current 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 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 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. The examiner must specifically acknowledge and comment on the opinion from Dr. R. Z., received in December 2019, and the opinion of the VA examiner, pursuant to the June 2021 VA psychiatric examination report, that the Veteran's the unspecified neurocognitive disorder was at least as likely as not incurred in, or caused by, his March 2017 brain surgery at the University of Utah, and VA treatment, surgeries, etc. 4. Refer the Veteran's case to the Director, Compensation Service for extraschedular consideration of the Veteran's TDIU claim pursuant to 38 C.F.R. § 4.16(b). 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.