Citation Nr: 1324718 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-06 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of maxilla osteotomy in September 1968. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from November 1963 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability resulting from dental treatment in 1968 at the Jesse Brown VA Medical Center in Chicago, Illinois. This case has previously come before the Board. In May 2011, the matter was remanded to the agency of original jurisdiction (AOJ) to afford the Veteran a hearing. In February 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The Board remanded the claim in April 2012 for further development and consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Since his VA maxilla osteotomy in September 1968 surgery, the Veteran has developed an additional disability of external resorption of teeth numbered 11 and 12. 2. The evidence of record demonstrates that the Veteran's external resorption of teeth numbered 11 and 12 incurred as a result of a VA surgery. 3. The competent evidence shows that the Veteran's external resorption of teeth numbered 11 and 12 was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care. The additional disability of external resorption of teeth numbered 11 and 12 was a foreseeable risk of the maxilla osteotomy. 4. Prior to the VA maxilla osteotomy in September 1968, the Veteran was not informed about the specific potential post-surgical risk of external resorption of teeth numbered 11 and 12; the evidence is in equipoise regarding whether a reasonable person in similar circumstances would have proceeded with the maxilla osteotomy even if informed of the risk of external resorption of teeth numbered 11 and 12. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for an additional disability, external resorption of teeth numbered 11 and 12, caused by the September 1968 VA surgical treatment have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA regulations codifying the requirements for claims requesting benefits under 38 U.S.C.A. 1151(a) filed on or after October 1, 1997, became effective September 2, 2004. 69 Fed. Reg. 46426 (Aug. 3, 2004) (codified at 38 C.F.R. § 3.361). A review of the record reveals that the Veteran's claim for compensation was received subsequent to that that date; therefore, the revised regulations apply to the Veteran's appeal. A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C.A. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). 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 the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in 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. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider 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. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361(d)(1). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The second prong of proximate causation requires that the veteran's additional disability or death be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of 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). Finally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran seeks entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of jaw surgery. Essentially, he contends that he was not provided informed consent for the surgery, which included taking a piece of bone out of his hip. He notes that he has additional disability, i.e., severe external resorption of teeth numbered 11 and 12. However, at his hearing, the Veteran stated that he was not seeking additional compensation due to any hip problems, only for the loss of teeth numbered 11 and 12. A review of the VA medical treatment reports indicates that the Veteran underwent a maxillary osteotomy to correct an open bite in September 1968. The evidence indicated that the procedure went well and follow-up care showed no complaints or problems with the fixation stable. The Veteran's bite was corrected and the treatment was completed in July 1969. A treatment report from Dr. Steinbrunner dated September 2006 indicated that teeth 11 and 12 have severe external resorption with the recommendation for extraction and implants. An April 2008 letter from Dr. Steinbrunner indicated that the resorption of teeth numbers 11 and 12 could possibly be related to trauma to the maxilla. A VA examination and opinion were provided in October 2012. The examiner reviewed the records that were available, and noted that the Veteran's maxilla osteotomy was done for correction of an anterior open bite and that the same was a congenital defect and the root resorption is a known surgical complication, that such procedures are done for the benefit of the patient and all known results and complications are accepted. The examiner noted that, given the elective nature of the surgery that some form of informed consent was obtained prior to the surgery, however there are no records, so one can only opine on this. Noting no one can comment on the fact that the Veteran's perception of lack of informed consent matches what he consented to at the time of surgery. Then, stating the final point is if the residuals of tooth resorption is due to carelessness, neglect, lack of proper skill, error in judgment or similar instance of fault of the VA. Noting that in terms of an opinion one has to resort to speculation since no records appear to exist corroborating or describing the surgery and given that fact that the surgery was done at a major metropolitan hospital with accredited oral surgical residencies, overseen by appropriate attendings, it would be the examiners opinion that the surgery was done to the best of the ability of the staff (surgical team) based on surgical standards of care at that time, that had there been malfeasance or other surgical misadventures, the results we would see today would not have been achieved and that the resorption seen today is the known complication of such elective surgery and the issues of informed consent and negligence cannot be really ascertained at this point in time. VA Memorandum dated February 1, 2013 denoted the formal finding of the unavailability of actual dental treatment records for the September 1968 maxilla osteotomy, i.e., the actual VA inpatient records pertaining to the maxilla osteotomy in September 1968 are not associated with the claims file. The memo noted that two separate requests were made for the records and two responses were received one noting that no records were found and on the second that the facility was unable to locate the records. The Board notes that the only pertinent treatment records are part III of a VA outpatient dental record of treatment from the Jesse Brown VA Medical Center (formerly known as the West Side VA Medical Center) reflecting that in September 1968, the Veteran was admitted for maxillary osteotomy, and October 1968 entries note that elastics were removed to visualize a small bone spicule in the hard palate and thereafter, that the area was healing and the procedure complete. The Board will begin by addressing the first requirement of a 38 U.S.C.A. § 1151 claim - an additional disability. 38 C.F.R. § 3.361(b). Applying the above facts to the aforementioned law, the Board finds that, since the Veteran's September 1968 maxilla osteotomy, he has developed an additional disability of external resorption of teeth numbered 11 and 12. This is confirmed by medical reports of record. Thus, the Board finds that the first requirement of an additional disability has been satisfied. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(b). The Board will now address the second requirement of a 38 U.S.C.A. § 1151 claim - an additional disability caused by VA treatment. 38 C.F.R. § 3.361(c). Applying the above facts to the aforementioned law, the Board finds that the Veteran's additional disability of external resorption of teeth numbered 11 and 12 was incurred as a result of VA treatment - namely, the VA maxilla osteotomy in September 1968. Additionally, the October 2012 VA examiner determined that external resorption of teeth numbered 11 and 12 is the known complication of a maxilla osteotomy. Therefore, the Board finds that the Veteran's external resorption of teeth numbered 11 and 12 was caused by VA treatment - namely, the maxilla osteotomy in September 1968. The Board will now address proximate causation. As previously stated, the first prong of proximate causation is satisfied if: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); OR, (ii) 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). The Board will address negligence in this section. Applying the above facts to the aforementioned law, the Board finds that the Veteran's external resorption of teeth numbered 11 and 12 was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care. Id. The October 2012 VA medical opinion of record persuasively demonstrate that there is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment. Specifically, the VA examiner concluded that, given the favorable results of the treatment and that external resorption of teeth numbered 11 and 12 is a known complication even with successful maxilla osteotomies. There are no contrary medical opinions of record, and the Veteran does not assert that VA negligently performed his surgery. Instead, the Veteran asserts that he was not informed about the potential risks of the maxilla osteotomy in September 1968. These lay arguments will be addressed in the section below. Thus, the Board finds that the evidence of record does not establish that VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence). 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(d)(1). As previously stated, the first prong of proximate causation is satisfied if: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); or, (ii) 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). The Board will address informed consent in this section. Applying the above facts to the aforementioned law, the Board finds that the Veteran was not provided informed consent to the maxilla osteotomy in September 1968. Id. Throughout his appeal, the Veteran has asserted that he was not specifically informed of the possible consequences of maxilla osteotomy in September 1968. In this regard, the presumption of regularity presumes that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). However, in the instant case, the Court found that the presumption of regularity does not apply to the scope of the information provided to a patient by a doctor with regard to the risks involved with any particular treatment. McNair v. Shinseki, 25 Vet. App. 98, 103-04 (2011). In other words, the presumption of regularity does not apply to generic informed consent forms, where there is a dispute concerning what information a doctor provided to his patient. Id. The Court distinguished the instant case from the case of Halcomb v. Shinseki, in that Halcomb had not addressed the evidentiary effect of a generic consent form when the scope of the advice provided was contested. Id.; see Halcomb v. Shinseki, 23 Vet. App. 234 (2009) (holding that it cannot be presumed that a complication was not discussed simply because it was not recorded). The Court found that when, as here, there is a dispute concerning what information a doctor provided to his patient, a factual issue is raised regarding whether a generic consent form indicating the patient was advised of the risks of surgery is more probative than the claimant's statements that a specific risk of the surgery was not discussed. Id.; see Salis v. United States, 522 F. Supp. 989, 1000 (M.D.Pa. 1981) (noting that when there is a general consent form and contrary lay assertions, the issue becomes one of credibility for the trier of fact). The Court found that this was a factual finding that must be made by the Board in the first instance based on all of the evidence in the record. Id.; see Roberts v. Shinseki, 23 Vet. App. 416, 423 (2010) (determining that the Board has duty to weigh and analyze all the evidence of record (citing Burger v. Brown, 5 Vet. App. 340, 342 (1993))). In this regard, the Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Whether lay evidence is competent and sufficient in a particular case is a fact issue. Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372. Here, the Board finds that the Veteran is competent to report that he was not informed about the potential surgical risks of external resorption of teeth numbered 11 and 12, as this involves first-hand knowledge that would have been conveyed directly to his. The actual records of the maxilla osteotomy in September 1968 are unavailable. There is no evidence in the claims file to suggest that possible external resorption of teeth numbered 11 and 12 was discussed with the Veteran prior to the maxilla osteotomy in September 1968. Throughout his appeal, the Veteran has asserted that he was not specifically informed of the possible consequences of external resorption of teeth numbered 11 and 12. Thus, resolving all doubt in favor of the Veteran, the Board finds that prior to the maxilla osteotomy in September 1968, the Veteran was not directly informed by a VA health care provider about the potential post-surgical risk of external resorption of teeth numbered 11 and 12. 38 C.F.R. § 3.361(d)(1). The Court, however, has held that the failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. McNair, 25 Vet. App. at 105-07. If a reasonable person faced with similar circumstances would have proceeded with the treatment, then this is a minor, immaterial deviation from the informed consent requirements. Id. at 107; see 38 C.F.R. § 17.32. A minor, immaterial deviation from the requirements of 38 C.F.R. § 17.32 will not defeat a finding of informed consent. The Court found that this reasonableness test is a factual finding that the Board must make in the first instance; however, the Court provided factors for the Board to consider. McNair, 25 Vet. App. at 107-08; see Roberts, 23 Vet. App. at 423. The Court indicated that the adjudicator must "not only must look to the likelihood of an undisclosed risk materializing, but also recognize that some foreseeable risks may be minor when compared to the foreseeable consequences of continuing without undergoing the treatment." McNair, 25 Vet. App. at 107-08; see Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204, 1209 (1991) (determining that the plaintiff's thyroid problem was a minor irritant when compared to the risk of permanent vocal cord paralysis). The Court also stated that the Board should consider the "consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery." McNair, 25 Vet. App. at 107-08. The Board finds that given the Veteran's circumstances prior to his maxilla osteotomy in September 1968, the evidence is in equipoise regarding whether a reasonable person would have proceeded with the surgery even if they had known about external resorption of teeth numbered 11 and 12 being a potential complication. The Veteran points out that he has had the condition, an anterior open bite, his entire life up that 1968, and that the surgery was elective, it not required for any potentially harmful condition at that time. The Board notes that the reported potential surgical complications, external resorption of teeth numbered 11 and 12, were significant.. Under the circumstances of this case, the evidence is in equipoise regarding whether a reasonable person would have found that their pre-surgery symptoms, an anterior open bite, was not significant and that the foreseeable risk was high, even if the surgery was successful. As a result, a reasonable person faced with these similar pre-surgery symptoms would not have proceeded with the maxilla osteotomy in September 1968 because the benefits of the surgery outweighed any risk of external resorption of teeth numbered 11 and 12. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, for the aforementioned reasons and bases, the Board finds that the evidence is in equipoise regarding the Veteran's claim. The Board is granting entitlement to compensation under 38 U.S.C.A. § 1151 for an additional disability, external resorption of teeth numbered 11 and 12. Any failure to notify or assist him is inconsequential and, therefore, at most, no more than harmless error. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for an additional disability, external resorption of teeth numbered 11 and 12, caused by VA maxilla osteotomy in September 1968 is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs