Citation Nr: 0811467 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 03-32 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for periodontal disease, for purposes of eligibility for VA dental treatment. 2. Entitlement to service connection for chronic sinusitis. 3. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional heart disability and pulmonary embolism following a total right knee replacement surgery performed at a VA facility in April 2000. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran had active service from August 1947 to December 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from November 1999 and September 2003 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The November 1999 rating decision denied service connection for fungus of the feet, maxillary sinus infection, and periodontal disease. The September 2003 rating decision denied the veteran's claim for compensation pursuant to 38 U.S.C.A. § 1151. In May 2006 this case was remanded to the RO for additional development. Subsequently, by rating action in July 2006 entitlement to service connection for degenerative joint disease of the right knee was granted; and, by rating action in November 2007 entitlement to service connection for a chronic fungal disability of both feet was granted. Therefore these issues are no longer before the Board. The Board now proceeds with its review of the appeals for entitlement to service connection for periodontal disease, chronic sinusitis, and entitlement to compensation pursuant to 38 U.S.C.A. § 1151. In April 2006, the Board granted the veteran's motion to advance the appeal on the docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. Objective medical evidence does not show that the veteran has a current dental condition resulting from a combat wound or other service trauma. 2. The preponderance of the competent evidence is against finding that the veteran has a disorder manifested by chronic sinusitis. 3. The weight of the competent and probative evidence is against a conclusion that additional heart disability and pulmonary embolism following a total right knee replacement surgery performed at a VA facility in April 2000 was a proximate result of carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable in the furnishing of medical care by VA. CONCLUSIONS OF LAW 1. The criteria for service connection for periodontal disease for VA outpatient dental treatment have not been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381, 17.161 (2007). 2. Chronic sinusitis was not incurred in or aggravated during military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303 (2007). 3. The requirements for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for additional heart disability and pulmonary embolism following a total right knee replacement surgery performed at a VA facility in April 2000 have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.358, 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in July 2001, November 2003, and May 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in his possession. While the appellant may not have received full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims. The claimant was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. I. Entitlement to service connection for periodontal disease, for purposes of eligibility for VA dental treatment. Under applicable law, veterans having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. 38 U.S.C.A. § 1712(a)(1)(C; 38 C.F.R. § 17.161(c) (referred to as Class II (a) eligibility). Under 38 C.F.R. § 17.161(b)(2), veterans who have a service- connected noncompensable dental condition or disability shown to have been in existence at time of discharge from active service, which took place before October 1, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (1) they were discharged under conditions other than dishonorable from a period of active military service of not less than 180 days; (2) application for treatment was made within one year after such discharge; and (3) a VA dental examination is completed within 14 months after discharge, unless delayed through no fault of the veteran. The VA General Counsel (GC) has held that, for purposes of determining whether a veteran has Class II (a) eligibility for dental care, the term "service trauma" does not include the intended effects of treatment provided during a veteran's military service. VAOPGCPREC 5-97 (Jan. 22, 1997). In its opinion on the subject, the GC noted, among other things, that the term "trauma" is ordinarily defined as a "physical injury caused by a blow, or fall . . ." or as a "wound; an injury inflicted more or less suddenly, by some physical agent." In other words, an injury. The General Counsel noted that treatment is given in order to remedy the effects of disease or injury, that dental treatment is not synonymous with dental trauma, and that it would be anomalous to conclude that the remedy for an injury or disease constituted further injury. In service dental treatment records note that the veteran underwent periodical routine dental treatment. There is no indication of periodontal disease in service. In addition the service retirement examination in February 1969 noted no periodontal or other dental disorders requiring continued treatment. The current claim was filed in July 1999. The veteran alleged in his claim that he underwent radical periodontal surgery in June 1968 causing exposed ringed dentine areas to advance to the stage where his teeth were breaking off at the gum line. A January 2007 VA dental examiner reviewed the claims file and noted no evidence of periodontal disease in service. The examiner noted that the veteran was seen to determine if his periodontal condition warranted service connection for treatment purposes only. The service dental records revealed periodontal scaling performed on one occasion in November 1963. Otherwise, he had routine preventive care. The veteran reported that had several surgeries with stitches off and on for 6-8 weeks. He believed that the treating dentist cut too much gum away leaving his teeth exposed and prone to fracture. The examiner explained that this was not the case. It was normal to have more tooth structure to be exposed after periodontal surgery. Once infection cleared up and the alveolar bone restored to promote an architecture conducive to good oral health and ease of oral hygiene and the gums heal. The examiner further noted that: Presently periodontal disease was not his problem. He had teeth 10, 11, 12, & 13 which are fracture[d] off to the gingival margin. Caries were present on all 4 retained roots. Veteran feels these teeth fractured due to his perio surgery. This is not the case, in my opinion. .. Periodontal disease is not a service connected condition. He was treated for periodontal disease (although there is no definite Dx in his records] while in the service. His periodontal disease is under good control at present. His periodontal disease is not service related in my opinion as it is a function of one's oral hygiene, genetic predisposition, or other contributing factors such as smoking or systemic disease such as diabetes. [The veteran] also had preventive dental care and exam 2 weeks prior to separation and therefore was not eligible for class II benefits thru the VA. The veteran has submitted numerous statements claiming that he currently suffers from periodontal disease as a result of dental treatment in service. He has submitted several statements alleging that treating dentists have opined that this is so. In October 1999, Col. Bersano, Chief Dental Officer, at Ft. Huachuca submitted a note with the veteran's record of treatment in which he stated, "I do not recall making any comment about [the veteran's] previous periodontal surgery." None of the treating dentists have submitted any supporting medical opinions, and none of the medical records provide objective, competent evidence of any relationship to service. The real question here, in terms of establishing eligibility, is whether the periodontal treatment allegedly done in service can be considered "trauma" for purposes of 38 C.F.R. § 17.161. Even assuming that the veteran had undergone periodontal treatment in service, based on the analysis and reasoning contained in VAOPGCPREC 5-97, the Board finds that it cannot be considered a 'trauma." The claim for service connection for disability due to dental trauma, for purposes of VA dental treatment, must therefore be denied. The only evidence that tends to connect periodontal disease to service is that offered by the veteran himself. A layperson is not, however, competent to provide evidence as to matters requiring specialized medical knowledge, skill, expertise, training or education. Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Therefore, lay assertions of medical causation and etiology, absent corroboration by objective medical evidence and opinions, are of no probative value towards establishing a link between his military service and his claims of entitlement to service connection for periodontal disease. Considering the claim in light of the above-noted legal authority, the Board finds that the weight of the evidence is against the claim. In this case, the Board is bound by the analysis in VAOPGCPREC 5- 97. The appeal must be denied. II. Entitlement to service connection for chronic sinusitis. In order to establish service connection for the claimed disorder, there must be medical evidence of current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In deciding whether the veteran has a current disability due to military service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the United States Court of Appeals for Veterans Claims case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997); 38 C.F.R. § 3.303(b). In addition, if a condition is not shown to be chronic, then generally a showing of continuity of symptomatology and competent evidence relating the present condition to that symptomatology are required. Id. Analysis The veteran contends that he currently suffers from chronic sinusitis as a result of military service. He requests that he be afforded the benefit of the doubt. At a January 2007 VA examination the examiner after reviewing the medical records and examining the veteran noted that there were 2 documented episodes of sinusitis in service. The veteran was treated in service with antibiotics for an impacted right maxillar sinus. Since that time he had been treated for chronic rhinorrhea. He had one episode of labrintitis in 1989. Examination revealed no sinus tenderness or nasal obstruction. The examiner found no evidence for chronic sinusitis inservice or since. Therefore he opined that no chronic sinusitis incurred in or was aggravated by service. Notwithstanding the veteran's assertion that chronic sinusitis was the result of service, the preponderance of the competent medical evidence of record is against his assertions. In fact there is no medical evidence that the veteran is currently suffering from or being treated for chronic sinusitis. Even assuming that the appellant presented sinusitis in- service, the absence of any competent medical evidence showing a nexus to service and/or a continuity of symptomatology since discharge is fatal to this claim. Moreover, the appellant as a lay person untrained in the field of medicine is not competent to offer an opinion addressing the etiology of his alleged disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As there is no competent evidence supporting the veteran's theories, or any other theory of entitlement to service connection, the claim is denied III. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional heart disability and pulmonary embolism The veteran claims entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional heart disability and pulmonary embolism following total right knee replacement surgery. Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability or death was not the result of the veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary and the proximate cause of the disability 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. 38 U.S.C.A. § 1151. Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997 were amended. See 69 Fed. Reg. 46,426 (Aug. 3, 2004). Those regulations largely implemented the provisions of 38 U.S.C.A. § 1151. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32; 38 C.F.R. § 3.361(d)(2). Background The veteran was admitted to the Tucson VAMC on April 20, 2000 and underwent a total knee arthroplasty (TKA), right knee. At the time of the surgery the veteran was prescribed Warfarin. He subsequently developed a body rash over his back which was spreading to his chest. This was felt to have been a medication allergy reaction. The veteran's Warfarin treatment was stopped and he was treated with aspirin and Triamcinolone cream locally which improved the rash. By the time he was discharged on May 4, 2000 the rash had resolved. In September 2000 the veteran was admitted to the VAMC with right sided chest pains. A CT scan discovered a pulmonary embolism. The veteran was started on heparin and Coumadin (Warfarin). The diagnosis was pulmonary embolism and atrial fibrillation. The treatment for both conditions was anticoagulation with Warfarin. The veteran in August 2002 filed a tort claim against the VA alleging among other claims that in April 2000 the VA withheld Coumadin subsequent to the total knee arthroplasty without explanation resulting in an acute pulmonary embolism, atrial fibrillation, and high blood pressure five months later. In a January 2004 VA examination the veteran's claims file and his medical records were reviewed by the examiner. The examiner noted that the veteran had been diagnosed with a pulmonary embolism in September 2000 and had been maintained on wafarin anti-coagulation since then. There was no evidence of a recurrence of thromboembolic disease since then. He developed IV infiltration of his left arm from an IV post-operative with significant swelling of the arm. The IV was replaced and the issue resolved over the next day. The examiner noted that at the time of the right knee surgery he was started on Warfarin. The veteran's recollection was that he was treated for only 3-5 days and it was discontinued because of a body rash attributed possibly to Warfarin. He had persistent right leg swelling after surgery and had ultrasound testing which found no clot but the lower leg swelling never fully resolved. The only side affect of Warfarin as noted was some mild easy bruising. The May 2000 discharge summary revealed that the veteran upon admittance had a maculopapular rash over his back which increased on the second day spreading to the upper chest. It was believed that the rash could be secondary to medication and his medications were adjusted. The only new medication added had been Coumadin which may have caused the rash and it was withheld. He was treated with aspirin and Triamcinolone cream locally which improved the rash. By the time he was discharged on May 4, 2000 the rash had resolved. The veteran was referred to ultrasound and deep vein thrombosis was ruled out. He was hospitalized in September 2000 for a pulmonary embolism right leg with atrial fibrillation and Warfarin was administered. Regarding the contention that the VA negligently and carelessly withheld anti-coagulation medication at the time of the claimant's right knee replacement in April 2000 which led to a pulmonary embolism and atrial fibrillation; the examiner opined that: Review of the records shows that the veteran was given seven days of Warfarin therapy at the time of his knee replacement, which complies with current standard of practice and recommendations ...... Furthermore, although the Warfarin might have been continued for another few days if the higher end of the recommendation were to be followed, it was discontinued with good reason, because of a total body rash which at that time was of unclear etiology. The veteran has contended in various statements that [he] the VA should have known he was at particularly high risk for thromboembolic disease because of prior DVTs-and that therefore this should have influenced any decision to discontinue therapy-but no evidence of prior DVT could be found, (superficial thrombophlebitis, which he may or may not have had in the past, would not be equivalent to the type of prior thromboembolic disease that would significantly increase the risk of DVT and pulmonary embolism.) It should also be noted that the veteran's pulmonary embolus and associated fibrillation did not manifest until five months after the total knee replacement and that he had a negative Duplex scan on April 27 (10 days after the knee replacement) and was seen by orthopedics on July 27, at which time no concern for DVT as raised. Based on this: a. The VA did not negligently and careless[ly] withhold anti-coagulation medication; in fact, current guidelines were followed and [and] anti-coagulation stopped at the lower end of the recommend duration for good reason. And no evidence could be found suggesting that the veteran was at high risk, which might have affected decision making on stopping Warfarin. b. Given the length of time between the knee replacement and the PE [pulmonary embolism], it is also unlikely that the duration of Warfarin therapy at the time of the knee replacement was a contributing factor to the subsequent development of the PE. The veteran has expressed his belief that he suffered a pulmonary embolism and atrial fibrillation as a result of VA withholding Warfarin during his hospitalization following surgery. However, as the veteran has not been shown to be a medical expert, he is not qualified to express an opinion regarding any medical causation. It is the province of trained health care professionals to enter conclusions which require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The veteran's lay opinions as to medical causation cannot be accepted as competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995). The Board notes that in numerous documents the veteran has alleged that treating physicians have agreed with his personal opinion. However, a review of the extensive claims file does not reveal any medical opinions in support of the veteran's claim. In contrast, the VA examiner's medical opinion in the January 2007 VA examination, indicated that the VA did not negligently and carelessly withhold anti-coagulation medication, anti-coagulation stopped at the lower end of the recommended duration for good reason, and there was no evidence suggesting that the veteran was at high risk, which might have affected decision making on stopping Warfarin. Finally, given the length of time between the knee replacement and the pulmonary embolism (5 Months), it was unlikely that the duration of Warfarin therapy at the time of the knee replacement was a contributing factor to the subsequent development of the pulmonary embolism. The VA examiners' opinion is the only competent opinion regarding the relationship between the VA treatment and the claimed disability. This opinion is against the claim for compensation for heart disability and pulmonary embolism resulting from VA treatment. There is no competent evidence that the proximate cause of any current heart disability and pulmonary embolism was negligence or other fault on VA's part, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. Accordingly, the preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Service connection for periodontal disease, for purposes of eligibility for VA dental treatment is denied. Service connection for chronic sinusitis is denied. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional heart disability and pulmonary embolism following a total right knee replacement surgery performed at a VA facility in April 2000, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs