Citation Nr: 0012572 Decision Date: 05/11/00 Archive Date: 05/18/00 DOCKET NO. 97-21 058 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for periodontal disease with tooth and bone loss, claimed to have been caused by VA prescription medication. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss, claimed to have been caused by VA prescription medication. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a skin disorder, claimed to have been caused by VA prescription medication. REPRESENTATION Veteran represented by: James E. Bicknell, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from February 1960 to March 1963. The appeal was previously before Board of Veterans' Appeals (Board) in July 1999. At that time, the Board held that the veteran's claims for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 were well grounded and remanded the claim for additional evidentiary and procedural development. Such development has been accomplished and the appeal has been returned to the Board for further review. The additional issues of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for tinnitus and tachycardia were previously before the Board in July 1999. Following the development requested on remand, however, the RO granted these claims in a November 1999 rating decision. These grants represent a complete resolution of the appeals as to those issues. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The veteran has not expressed disagreement with the disability ratings assigned to the impairment resulting from tinnitus and tachycardia. Therefore, these issues are not before the Board and will be addressed no further. The RO has certified additional issues of visual acuity loss and blurred vision as being on appeal to the Board. However, a review of the record reveals that no substantive appeal has been filed to perfect an appeal to Board regarding these issues. These issues were not addressed in the July 1999 decision, and discussion of them is not appropriate here either. While the veteran's claims file was at the RO, a decision as to issue of entitlement to service connection for a dysthymic disorder was rendered in November 1999. It appears that in December 1999, the veteran filed a notice of disagreement with the denial and requested a hearing at the RO as well. No further action has been taken by the RO. It is now incumbent upon the RO to issue a Statement of the Case with regard to this denial. 38 C.F.R. § 19.29. In April 2000, after his claims file had been transferred to the Board, the veteran submitted a medical information release form to allow the RO to obtain private medical records pertaining to treatment for cardiac complaints and disabilities. Because medical records related to cardiac complaints and disabilities would not have relevancy to the issues currently on appeal and before the Board, no prejudice will accrue to the veteran by the Board proceeding with review of the appeal without these medical records. We will therefore proceed with a review of the appeal without further delay. FINDINGS OF FACT 1. The veteran has been treated by the VA for multiple health-related complaints. Among others, he has been prescribed amitriptyline, nortriptyline, Elavil, and quinine for the treatment of various disabilities. 2. The veteran's periodontal disease with tooth loss was merely coincident with VA pharmacological treatment. The evidence does not show the veteran sustained any bone loss due to periodontal disease. 3. No causal relationship exists between the veteran's periodontal disease with tooth loss and VA medication. 4. Bilateral hearing loss was merely coincident with VA pharmacological treatment. 5. No causal relationship exists between the veteran's bilateral hearing loss and VA medication. 6. Recent medical evidence indicates the veteran does not currently suffer from a chronic skin rash, or other skin disorder. CONCLUSIONS OF LAW 1. VA compensation benefits for periodontal disease with tooth loss, claimed to have been caused by VA prescription medication are not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1995). 2. VA compensation benefits for bilateral hearing loss, claimed to have been caused by VA prescription medication are not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1995). 3. VA compensation benefits for a skin disorder, claimed to have been caused by VA prescription medication are not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he was prescribed several different medications, including Amitriptyline, Nortriptyline, Elavil, and quinine, by the VA for the treatment of various disabilities throughout the 1980s and 1990s. He asserts that he developed allergic reactions to these medications and consequently suffered various disabilities including periodontal disease with tooth and bone loss, bilateral hearing loss, and a skin disorder. He therefore requests disability compensation for these disabilities as caused by VA treatment. During an August 1998 hearing before a hearing officer at the RO and an April 1999 videoconference hearing before the undersigned Member of the Board, the veteran provided sworn testimony about the disabilities at issue and his belief that they are due to the medications he had been prescribed over the years. He stated that although he has stopped taking the medications that caused his problems, he still experiences symptoms of decreased hearing acuity and a skin rash. Law and Regulations In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability or in death, disability compensation shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. In Brown v. Gardner, 115 S.Ct. 552 (1994), the United States Supreme Court held that VA's interpretation of 38 U.S.C. § 1151 as encompassing only additional disability resulting from VA negligence or from accidents during treatment was unduly narrow. The Supreme Court found that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. The Supreme Court further found that the then implementing regulation, 38 C.F.R. § 3.358(c)(3) (1991), was not consistent with the plain language of 38 U.S.C.A. § 1151 with respect the regulation's inclusion of a fault or accident requirement. However, the Supreme Court further held that not every "additional disability" was compensable. The validity of the remainder of 38 C.F.R. § 3.358 was not questioned. See Gardner, 115 S.Ct. 552, 556 n.3 (1994): "We do not, of course, intend to cast any doubt on the regulations insofar as they exclude coverage for incidents of a disease's or injury's natural progression, occurring after the date of treatment. . . .VA's action is not the cause of the disability in those situations." In sum, the Supreme Court found that the statutory language of 38 U.S.C.A. § 1151 simply requires a causal connection between VA medical treatment and additional disability but that not every additional disability is compensable. Thereafter, the Secretary of Veterans Affairs sought an opinion from the Attorney General of the United States as to the full extent to which § 1151 benefits were authorized under the Supreme Court's decision. The requested opinion was received from the Department of Justice's Office of Legal Counsel on January 20, 1995. In essence, the Department of Justice opined that "our conclusion is that the [Supreme] Court intended to recognize only a narrow exclusion [to the "no fault" rule], confined to injuries that are the necessary, or at most, close to certain results of medical treatment." In March 1995, amended VA regulations were published to conform with the Supreme Court's decision. Section (c)(3) of 38 C.F.R. § 3.358 was amended to remove the "fault" requirement which was struck down by the Supreme Court. (a) General. Where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. (b) Additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. (c) Cause. In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. 38 C.F.R. § 3.358 (1996). In summary, then, under the 1995 version of 38 C.F.R. § 3.358(c)(3), compensation is precluded where disability (1) is not causally related to VA hospitalization or medical or surgical treatment, or (2) is merely coincidental with the VA hospitalization or medical or surgical treatment, or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized, or (4) is the certain or near certain result of the VA hospitalization or medical or surgical treatment. Where a causal connection exists, there is no willful misconduct, and the additional disability does not fall into one of the above-listed exceptions, the additional disability will be compensated as if service connected. However, effective October 1, 1997, 38 U.S.C.A. § 1151, relating to benefits for persons disabled by treatment or vocational rehabilitation, was amended by Congress. 38 U.S.C.A. § 1151 (West Supp. 1997). The purpose of the amendment is, in effect, to overrule the Supreme Court's decision in the Gardner case, which held that no showing of negligence is necessary for recovery under section 1151. A VA General Counsel Opinion, VAOPGCPREC 40-97 (December 31, 1997) addresses the issue of the effective date of the new statutory provision. The opinion includes an analysis of the legislative history of the new statute and applies principles of statutory construction to the exact terms of the statute. Essentially, the General Counsel holds that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the provisions of Section 1151 as they existed prior to that date. In other words, all 1151 claims, such as this veteran's December 1995 claim, which were filed before October 1, 1997, must be adjudicated under the statutory provisions in effect when Gardner was reviewed by the Supreme Court, and under the regulatory provisions promulgated by the VA on March 16, 1995. Thus, the standards set forth in the 1995 regulations appear to be the appropriate standards under which this appeal should be reviewed. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for periodontal disease with tooth and bone loss. Dental records reveal that the veteran's teeth were deemed "unrestorable" with very advanced periodontal disease in August 1995. In September 1995, all his teeth were surgically extracted. Dentures were fabricated in October 1995 and fitted into his mouth in November 1995. There is nothing in the treatment records indicating a relationship between any prescription medication and the loss of the veteran's teeth. A May 1997 report of an outpatient clinic visit contains the following doctor's statement: "Patient has severe side effects from quinine (rash), amitriptyline (breast enlargement, dry mouth leading to gum disease) and rapid pulse from tricyclics. Patient was also on multiple drugs at one time, and the combination of drugs may have contributed to side effects, including hearing." (sic). The concluding diagnostic assessment was of multiple drug side effects and allergies. A VA pharmacy practice resident conducted medical research regarding the effects of amitriptyline and quinine and provided the following opinion: Amitriptyline is associated with anticholinergic side effects of dry mouth and decreased salivation, which has been associated with an increased risk of the development of dental caries. The RO sought a dental opinion regarding the cause of the veteran's gum disease and subsequent teeth extractions. A November 1997 examination report provides a diagnosis of "periodontal disease with tooth loss." The examiner noted that the veteran believed his teeth were lost because of a reaction to medications, including quinine, Elavil, baclofen, and salicylates. However, the examiner opined that the etiology of the veteran's gum and teeth problems was most likely poor oral hygiene and tobacco use, and that medications did not appear to have contributed directly to the tooth loss. During the August 1998 and April 1999 hearings on appeal, the veteran testified as to his belief that medications administered by the VA caused his gums to dry up and shrink. He also described some of the problems he was having with his dentures and getting them properly fitted at the VA dental laboratory. There is no question that the veteran has had all his teeth removed on account of periodontal disease and that he wears a complete set of dentures. It does not appear that he has suffered any bone loss in connection with the periodontal disease and the removal of his teeth, however. Thus, his current disabilities would appear to be periodontal disease and the absence of natural teeth. Once a well grounded claim has been presented, the credibility of the evidence presented is no longer presumed, and adjudicators have a responsibility to evaluate the credibility and the probative weight of all the evidence for and against the claim. King v. Brown, 5 Vet. App. 19 (1993). Generally, lay persons ostensibly untrained in medicine can provide personal accounts of symptomatology, but cannot provide evidence constituting a medical conclusion, such as an opinion as to the medical characteristics of symptoms or the etiology of a disease. For the most part, medical testimony must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Layno v. Brown, 5 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, as a layperson untrained in medicine, the veteran's own opinion cannot be accorded much probative value. The VA pharmacy opinion provides general information as to side effects of medications. It is important to note that the opinion does not indicate that Amitriptyline is associated with gum disease, rather that medication is associated with cavity formation. In this particular case, the dental records appear to indicate that it was the veteran's very advanced periodontal disease which necessitated the removal of his teeth. Furthermore, it does not appear that the pharmacy resident who authored the opinion was provided with the veteran's medical records; rather she conducted a review of recent pharmacological research and publications. Thus, the opinion is not specific as to the veteran and his particular medical situation. In weighing the May 1997 doctor's note against the November 1997 dental opinion, the Board accords more probative weight to the dental opinion. The doctor's note was recorded during a treatment session, where the focus was upon remediating the veteran's current symptomatology and was likely based upon the history provided by the veteran at the time, rather than upon a thorough review of the veteran's medical records. In contrast, the dental opinion was rendered following a VA examination for purposes of compensation, in response to a direct question from the RO as to the etiology of the veteran's periodontal disease and loss of teeth. The dentist was provided with the veteran's dental records and was able to perform a clinical examination of the veteran. Furthermore, the dentist who rendered the opinion can be considered an expert in dental care, as opposed to the physician, who does not have specialized dental training. The dentist's conclusion that the veteran's dental problems resulted from poor oral hygiene and tobacco use rather than medication side-effects is further supported by the absence in the dental treatment records of any history of medication involvement, or identification of medication as the etiology for the veteran's advanced periodontal disease. Therefore, the Board holds that the preponderance of the evidence is against a conclusion that additional disability in the form of periodontal disease and the loss of the veteran's teeth resulted from VA medication. Rather, the VA dental opinion indicates that the periodontal disease and extraction of the veteran's teeth due to poor oral hygiene and tobacco use were merely coincident with the administration of medication for unrelated disabilities. Absent a relationship between the VA treatment and the disability claimed, an award of VA compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss. Treatment records reflect that the veteran suffers from bilateral hearing loss and tinnitus. A February 1996 ear, nose, and throat clinic report shows that there was a questionable conductive component to the veteran's hearing loss, secondary to otosclerosis. A notation in the margin of this report indicates that the veteran reported he stopped taking all medication in 1995. According to the report of a November 1997 VA audiometric examination, the veteran reported having experienced a gradual hearing loss over the previous four years. The results of audiometric testing were interpreted as showing moderately severe right ear hearing loss and moderate left ear hearing loss. The examination report does not contain any comment regarding the veteran's medication history, however. A VA pharmacy practice resident conducted medical research regarding the effects of amitriptyline and quinine and provided the following opinion: High frequency hearing loss is a rare and mild adverse effect seen with chronic or toxic doses of quinine, and has been found to be reversible with discontinuation of the drug. The veteran underwent a VA medical examination in November 1997. The examiner made reference to the VA pharmacy opinion quoted above and explained that hearing loss due to quinine and/or amitriptyline is self-limited and resolves with discontinuance of the medication. The examiner concluded that it was unlikely any hearing loss was permanently caused or permanently aggravated by medications the veteran received. The evidence of record confirms the presence of moderately severe right ear hearing loss and moderate left ear hearing loss. Thus, the medical evidence of record which is pertinent to the question of whether the veteran suffered permanent disability from the administration of quinine or amitriptyline is against the veteran's claim. The medical evidence summarized above shows that although generally quinine has been associated with hearing loss, this hearing loss is temporary. The November 1997 VA examiner addressed the issue with reference specifically to the veteran and his unique medical history, and concluded that it was unlikely that the veteran suffered any permanent hearing loss due to medication. The Board notes as well, that to the extent the veteran's hearing loss is attributable to otosclerosis, there is no medical evidence at all tending to show that otosclerosis may be related to quinine, amitriptyline, or other medication. As above, because he is a layperson untrained in medicine, the veteran's own opinion as to the etiology of his bilateral hearing loss cannot be accorded much probative value. Layno, supra, Espiritu, supra. Therefore, the Board holds that the preponderance of the evidence is against a conclusion that additional disability in the form of bilateral hearing loss resulted from VA medication. Rather, the VA medical opinion indicates that the bilateral hearing loss was merely coincident with the administration of medication for unrelated disabilities. Absent a relationship between the VA treatment and the disability claimed, an award of VA compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a skin disorder. Episodes of skin rashes are well-documented in the veteran's medical records. In August 1995, the veteran reported for treatment for a dark, pigmented, plaque-like rash. Notes indicate that the veteran reported taking multiple medications, and that the rash appeared chronic and may have been fungal in nature. The plan was to refer the veteran to dermatology to rule out fungal skin, such as tinea versicolor. An entry several weeks later indicates that the veteran was deemed to have been allergic to quinine. A dermatology clinic note dated in October 1995 shows that the veteran provided a history of having a rash caused by a quinine allergy, but that when he stopped taking quinine, the rash cleared. Upon physical examination at that time, no rash was seen. The dermatologist provided a diagnostic impression of "rule out drug reaction to quinine by history." A second skin rash episode is documented in a July 1997 primary care clinic record. The assessment was an allergic rash/contact dermatitis. The veteran was given calamine lotion for the rash, instructed to discontinue taking high doses of Vitamin E, and referred to an allergy specialist. Upon VA examination in November 1997, however, no rash was noted and the veteran did not complain of a skin rash. During the hearings on appeal, the veteran testified that he has suffered from a constant skin rash over the past few years. Recently-received VA treatment reports do not contain any references to a rash, other skin complaints, or medical treatment therefor. In the Board's previous decision, we held that the claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a skin rash was well grounded. In reaching this conclusion, we held that the veteran's testimony must be presumed to be truthful unless it is inherently incredible or the matter is beyond the competence of the party so testifying for purposes of determining whether the claim was well-grounded. King, supra. We remanded the claim in part, to ascertain whether the veteran suffers from a current, chronic, disability involving a skin rash. The recent medical evidence indicates that he does not and that the previously-shown rashes have resolved without residual disability. We find the recent medical evidence to be more credible than the veteran's own assertions to the contrary, given the veteran's history of suspected malingering and preoccupation with somatic complaints. In the absence of a current, chronic disability which could be attributed to the administration of VA medication, or otherwise to VA medical care, VA compensation is not warranted. The preponderance of the evidence is therefore against a grant of VA compensation benefits for a skin disorder and the claim must be denied. ORDER Compensation for periodontal disease with tooth and bone loss claimed to have been caused by VA prescription medication is denied. Compensation for bilateral hearing loss claimed to have been caused by VA prescription medication is denied. Compensation for a skin disorder claimed to have been caused by VA prescription medication is denied. V. L. Jordan Member, Board of Veterans' Appeals