Citation Nr: 0835614 Decision Date: 10/17/08 Archive Date: 10/27/08 DOCKET NO. 04-28 409A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to payment of compensation for residuals of dental surgery under the provisions of 38 U.S.C.A. § 1151 (West 2002). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty including from December 1954 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated in August 2002, of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, TN. In September 2008, the veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran contends that he has residuals of dental surgery performed by VA in April 2001. He argues that the dental surgery was performed by an intern and during the surgery a tendon or ligament was pulled by mistake. Most recently in September 2008, the veteran testified that his residuals include biting his cheeks and lips, problems moving his jaws and pronouncing words. The evidence shows that in April 2001, the veteran underwent enucleation and peripheral ostectomy of the right mandible and extraction of tooth #31. His preoperative and postoperative diagnoses were right mandibular odontogenic keratocyst. The report was signed by a surgical resident and consigned by a doctor of dental medicine. VA progress notes shows that in August 2001 and September 2001, the veteran had facial pain, primarily muscular in nature, with some joint tenderness, possible internal derangement, possibly aggravated by surgery to remove odontogenic keratosis. On VA examination in January 2004 and in an addendum in June 2004, the diagnoses included crepitus in the right temporomandibular joint indicative of internal temporomandibular joint inflammation, dysfunction, which will likely be a chronic problem. The examiner concluded that there is no indication the veteran had additional disability due to carelessness, negligence of fault due to the dental surgery, even though temporomandibular joint disability is a known risk factor of oral surgery at least in the short term following the surgery. A private body scan in April 2006, shows that the lower right jaw and forehead above the left eye require clinical correlation. The examiner commented that generally a severed nerve will leave a cold emission beyond the site where the nerve was cut, which is not the case in the veteran's situation. In general, benefits under 38 U.S.C. § 1151 are payable when a veteran experiences additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by VA if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event which is not reasonably foreseeable. Thus under the circumstances of this case, a VA examination is necessary to determine the current residuals the veteran has as a result of his dental surgery in April 2001, and whether it is at least as likely as not (a 50% or higher degree of probability) that the residuals are the result of surgical treatment furnished by the VA. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited handling is requested.) 1. The veteran should be schedule for an appropriate VA examination. After reviewing the claims folder and examining the veteran, the examiner should address the following: (a) The residuals, if any, the veteran has residuals of dental surgery performed in April 2001; (b) Whether the proximate cause of any residuals of the April 2001 dental surgery were due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; (c) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; and (d) Was the proximate cause of any residuals of dental surgery in April 2001 an event not reasonably foreseeable? A rationale should be provided for all conclusions rendered. 2. After completion of the above and any other development deemed necessary, the RO should review the expanded record and determine if the benefit sought can be granted. Unless the benefit sought is granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).