Citation Nr: 1331350 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-17 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to disability compensation under 38 U.S.C.A. § 1151 for residuals of left partial maxillectomy, left orbital floor reconstruction, medial canthal ligament repair surgery, and hospitalization following such surgery, and subsequent radiation therapy for malignant neoplasm in the left maxillary/paranasal sinuses provided by VA, to include epiphora, anosmia, dysguesia, diplopia of the left eye, right eye bulging, epistaxis, nasal obstruction, and left facial numbness at V2 (referred to hereinafter as "residuals"). 2. Entitlement to disability compensation for glaucoma associated with anomalies of the iris under 38 U.S.C.A. § 1151 as residuals the surgery and radiation therapy for the malignant neoplasm in the left maxillary/paranasal sinuses provided by VA. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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). The Veteran served on active duty from September 1952 to September 1972, with total service of 20 years. This included service in Korea from June 1969 to June 1970 and in the Republic of Vietnam (RVN) from February 1971 to February 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision from the New Orleans, Louisiana, VA Regional Office (RO), which, in pertinet part, denied claims for service connection. In his substantive appeal of those claims, the Veteran raised a claim for benefits under 38 U.S.C.A. § 1151. The Board's September 2010, February 2012, and June 2013 decisions remanded the claim for benefits under 38 U.S.C.A. § 1151 for development. The claim encompasses residuals of VA medical and surgical treatment, including left partial maxillectomy, left orbital floor reconstruction, and medial canthal ligament repair surgery, hospitalization following such surgery, and subsequent radiation therapy for malignant neoplasm in the left maxillary/paranasal sinuses provided by VA. In his May 2008 substantive appeal, the Veteran requested a hearing before the Board. He later withdrew that hearing request, including by a statement titled "Appeal Clarification" dated in a July 2009. Appellate review may proceed. The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for glaucoma associated with anomalies of the iris is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has undergone extensive surgical treatment and radiation treatment to remove an adenoid cystic carcinoma of the left maxillary sinus. 2. The surgical excision and radiation therapy required to treat the carcinoma have resulted in such residuals as nosebleeds, asymmetry of the appearance of the eyes, weakness of muscles of the left eyelid, facial weakness and decreased sensation under the left eye, and have affected the Veteran's sense of taste and smell. 3. The residuals of the Veteran's surgical treatment and radiation therapy for adenoid cystic carcinoma of the left maxillary sinus are not the result of negligence, carelessness, or fault, in the VA treatment, but are foreseeable residuals, given the extensive nature of the surgical reconstruction and the radiation therapy necessary to treat a carcinoma located in a maxillary sinus. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C.A. § 1151 for residuals of VA treatment, to include left partial maxillectomy, left orbital floor reconstruction, medial canthal ligament repair surgery, and radiation therapy, for a malignant neoplasm in the left maxillary/paranasal sinuses, to include epiphora, anosmia, dysguesia, diplopia of the left eye, right eye bulging, epistaxis, nasal obstruction, and left facial numbness, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.361, 17.32 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board will address whether VA has met its statutory duties to provide the Veteran with notice and assistance before addressing the legal and factual issues raised on appeal. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements for a service connection claim have five elements: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The Board notes that the general notice required for a service connection claim is slightly altered in claim for benefits under 38 U.S.C.A. § 1151. Thus, although the RO issued notices in 2006 and 2007 which addressed the elements of a claim for service connection, that is not the end of the inquiry regarding the duty to notify in this case. Following the Appellant's submission of the May 2008 substantive appeal in which he raised claim for benefits under 38 U.S.C.A. § 1151, the RO issued notice of the specific evidentiary requirements of such a claim in September 2010. Additional notices were issued to the Veteran following the 2012 and 2013 Board Remands. The Veteran's responses demonstrate that he received the notices advising him of the types of evidence which might substantiate his claim under 38 U.S.C.A. § 1151. The claim has been readjudicated following the required notice in 2010. Therefore, if there was any notice defect, that defect has been cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). Duty to assist Next, VA has a duty to assist the claimant in the development of the claim. Generally, this duty includes assisting in the procurement of service treatment records, other official service department records as necessary, pertinent treatment records, and providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the claim for benefits under 38 U.S.C.A. § 1151 does not require service treatment records, but, rather requires the records of the treatment alleged to give rise to additional disability and records following the VA treatment at issue. Such records have been obtained. In particular, lengthy records of VA treatment of a carcinoma of the left maxillary sinus, and VA treatment thereafter, are of record. The Veteran has submitted private medical statements. Lengthy VA treatment records were obtained, as there are more than 500 pages of VA records associated with the electronic claims file. The Veteran was afforded VA examinations in 2011, and opinions were obtained. Addenda to those examinations reports were obtained in 2012. In addition, dental examination was conducted in 2012. In March 2013, additional opinion from an expert was obtained, and the Veteran was provided with a copy of that opinion. The opinions obtained are adequate to address the claim before the Board. The Veteran does not contend that any other information is available that would assist in substantiating his claim. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed. Claim under 38 U.S.C.A. § 1151 The Veteran is seeking to establish entitlement to compensation based upon the provisions of 38 U.S.C.A. § 1151 for additional disabilities stemming from VA medical treatment of an adenocystic carcinoma of the left maxillary sinus. In particular, he claims that his additional disabilities include, but are not limited to, epiphora, anosmia, dysguesia, diplopia of the left eye, right eye bulging, glaucoma associated with anomalies of the iris, epistaxis, nasal obstruction, and left facial numbness. 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 medical or surgical treatment furnished by VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of VA in furnishing the treatment, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). 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 informed consent. In this case, the RO denied the claim on the basis that no additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of VA in furnishing the treatment, and that the additional disabilities which resulted from the surgical and radiation therapy treatment of a cancer of the left maxillary sinus were reasonably foreseeable results of the treatment required to eliminate a cancer in that location. 38 C.F.R. § 3.361. 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). In its April 2008 Remand, the Board directed that medical opinion as to causation be obtained in this case, following VA examination. Even though the Veteran has not appeared for physical examination, medical opinion is required to answer this question before appellate review may be completed. Facts and Analysis There is no dispute regarding the basic facts. An April 2003 computerized tomography (CT) scan showed a structure in the Veteran's left maxillary sinus. Another CT scan in November 2005 showed a larger mass in the left maxillary sinus. Adenocystic carcinoma was found upon biopsy in December 2005. The Veteran underwent surgery for malignant neoplasm in the left maxillary/paranasal sinuses in February 2006. Later that year, he underwent radiation therapy to the area of the surgical excision. Excision of the cancer from the left maxillary sinus required a partial maxillectomy, orbital floor resection and reconstruction, using a titanium mesh orbital floor implant and secondary mediocanthum repair. In lay terms, part of the roof of the mouth was removed, and some of the bones, muscles, and other tissues which ordinarily hold the left eye in place were removed. Soft tissue and bone were rearranged to hold the left eye in place, and a metal plate was used to take the place of the roof of the mouth and to hold the reconstructed tissue under the left eye in place. Then, following the surgical procedure, radiation treatment was required to decrease the chances of recurrence of the cancer. Oncology treatment notes from the Willis Kingston Health System disclose that the Veteran received radiation therapy at that facility. After radiation therapy was completed, and after allowing time for the reconstructed tissue to heal, the titanium implant was removed in January 2008. At the time of the removal of the metal plate, the maxillary sinus was again biopsied. Prior to the second surgical procedure, the Veteran had developed mucopurulent discharge from the nasal cavity, and exposure of the metal reconstruction plate within the nasal cavity, leading to periods of recurrent epistaxis (nosebleed). After the surgical and radiation therapy, the Veteran began to complain of impairment of vision, including diplopia (double vision). He continued to have nosebleeds, which the providers determined were occasional, low grade episodes, due to dryness. Following conclusion of therapy, the Veteran was treated for a number of complaints, including anosmia (loss of the sense of smell), loss of the sense of taste, a medial ectropion (a rolling outward of the margin of the eyelid), numbness and paresthesia of the left infraorbital region, drainage/tearing of the left eye, inability to completely close the left eye, among other complaints and symptoms. In 2009, a private provider concluded that the Veteran's residuals were due to the surgical and radiation treatment required for the maxillary sinus tumor. VA treatment records reflect that the Veteran has sought treatment for nosebleeds on several occasions, sometimes on an emergency basis, and that various treatments, including laser treatment, have been required. The providers have advised the Veteran to use a specific liquid treatment whenever he develops epistaxis. The Veteran has made records of the numerous episodes of epistaxis for his providers, and has submitted that list to the Board as well. The Board has reviewed that list; it is consistent with the evidence of record. The Veteran was afforded VA general medical and neurology examinations in 2011, as well as examination of the nose, sinuses, larynx, and pharynx. The neurologic opinion was updated in 2102. The examiner who conducted the neurologic examination concluded that residual left eyelid muscle weakness and inability to close the left eye were the same residual condition, and were due to weakness of the left obicularis oculi muscle. The examiner also concluded that the complaints described as "numbness and paresthesia, left infraorbital region," and "residual decrease sensation in left face," were the same residuals. The examiners who conducted the 2011 and 2012 VA examinations each opined that the Veteran manifested the symptoms he was complaining of and that the residuals were due to the surgical and radiation therapy for the maxillary sinus tumor. Each of the examiners who conducted the examinations was asked whether there was evidence of carelessness, negligence, or fault on the part of VA in providing the treatment. The examiners who addressed the question each opined that the results in the Veteran's case were within the standard of care and that the residuals of the treatment were foreseeable, given the tumor location. In 2012, the Veteran afforded dental examination. The examiner identified the Veteran's dental disorders and the status of each tooth that required treatment. The examiner concluded that the Veteran's dental and oral health, including xerostomia (dryness of the mouth due to decreased salivary gland production), was the expected outcome of the cancer treatment. The examiner concluded that there was no fault on the part of VA, as the outcomes achieved were within the usual standard of care and were reasonable foreseeable. In November 2012, the Board requested an independent medical expert (IME) opinion to address pertinent medical questions raised by the § 1151 claim at issue. The requested IME opinion was provided in March 2013. The reviewer concluded that the Veteran's diplopia was most likely to due to globe position rather than muscle weakness, and was likely due to asymmetry of the left eye, compared to the right, due to the complexity of the orbital repair, the required removal of the orbital floor implant, and possibly some radiation-induced fibrosis within the medial orbit near the tumor site. He noted that the eyes must be synchronized to avoid the appearance of muscle weakness. He characterized this disability as 90 percent due to surgery and 10 percent due to radiation therapy. The reviewer concluded that the type of decreased sensation noted on the left side of the Veteran's face was present in 100 percent of individuals requiring the orbital floor removed with maxillectomy as the V2 (fifth facial nerve, also known as the trigeminal nerve) is removed in such surgery, as the path of that nerve lies across the bone of the orbital floor. He concluded that 100 percent of the disability due to decreased sensation of the face was due to the surgical treatment. The reviewer opined that epiphora (imperfect tear duct drainage resulting in leakage of tears across the cheek) is expected, as the lacrimal bone is at least partially removed in a maxillectomy with orbital floor removal, interrupting the tear flow out of the eye leading to epiphora. The reviewer opined that the usual cause of anosmia is a combination of chronic nasal dryness a radiation side-effect and changes in airflow within the nose a surgical side effect, combined with olfactory nerve loss after radiation to the superior nasal vault. The reviewer opined that dysguesia (distortion of the sense of taste) is a side-effect of anosmia as taste is significantly impacted by olfaction. The reviewer opined that a finding of bulging of the right eye was most likely an incorrect assessment due to measuring the right eye against the left eye which is in fact displaying post-treatment enophthalmos (recession within the orbit). The reviewer further noted that epistaxis (nosebleed) occurs in 100 percent of individuals who receive radiation to the nose. The reviewer further opined that each of these disabilities was within the standard of care and was "all expected as a part of the usual and appropriate care" of invasive adenoid cystic carcinoma of the maxillary sinus, which requires treatment with extensive surgery reconstruction and post operative radiation therapy. The evidence establishes that the Veteran has residuals of the treatment and excision of adenocystic carcinoma of the left maxillary sinus. However, compensation is authorized under 38 U.S.C.A. § 1151for residuals of treatment only where residuals are due to fault on the part of VA or are not reasonably foreseeable. Each of the VA examiners and the IME reviewer opined that all treatment provided in this case was necessary, was within the standard of care, and that residuals of the treatment were reasonably foreseeable. Thus, each opinion is unfavorable to the Veteran's claim for benefits under 38 U.S.C.A. § 1151. After the VA and IME opinions were obtained, the Veteran thereafter submitted a statement listing occasions on which he had experienced a nosebleed. He stated that, "Because I could bleed to death in the middle of the night I feel that this issue should be addressed and the RO should fully review it." He also stated that his "double vision" was also a result of the surgery, and should also be addressed. The Board notes that the IME reviewer discussed the fact that the complexity of the orbital repair required to remove the tumor underlying the left eye, as well as the radiation therapy required to prevent tumor recurrence, has resulted in globe position asymmetry of the left eye as compared to the right, and that muscle weakness and removal of nerves during the orbital reconstruction affects the Veteran's vision. The Veteran also provided two articles from medical literature in July 2013. These articles address the general nature of adenocystic carcinoma, the invasive nature of such a tumor, the frequency of occurrence in the respiratory tract, the occurrence of effects on nerves, and the need for both surgical treatment and radiation therapy. The articles appear consistent with the evidence of record, but do not appear to include information indicating that the VA treatment was not within the standard of care. The IME and each of the VA examiners who addressed the Veteran's left eye deficits, not including glaucoma, concluded that the residuals were within the standard of care and reasonably foreseeable. As to epistaxis (nosebleeds), the IME noted that this residual occurred in 100 percent of individuals who received radiation therapy to the sino-nasal area. Thus, the Veteran's concerns stated in his July 2013 correspondence regarding his double vision and nosebleeds are addressed in the evidence and opinions of record. The examiners and reviewers agree that the Veteran experiences double vision and epistaxis, and agree that these residuals are within the standard of care for the tumor the Veteran had and are foreseeable outcomes where the orbit of the eye and sinus must be removed, reconstructed, and undergo radiation therapy. After the RO issued an October 2012 supplemental statement of the case (SSOC), in March 2013, the Veteran submitted additional clinical evidence into the record, which included a statement dated in October 2010 from the Veteran's private dentist, CRC, D.D.S., regarding the Veteran's dental condition and health prior to and after the Veteran underwent treatment of left maxillary/paranasal sinus cancer in 2006. Dr. C. stated that the Veteran was seen regularly through 2005, with a break in treatment until 2007. Dr. C. stated, "In that interval a baseball size tumor was removed from his left maxilla and treated surgically and with radiation for six weeks for a nasal Adenocystic carcinoma (sic). Frequent episodes of severe epistaxis necessitating emergency room visits have occurred." He also noted that the Veteran was experiencing xerostomia (dry mouth) secondary to the radiation therapy. As noted in the July 2013 supplemental statement of the case (SSOC) in which this evidence was considered, Dr. C's statement of the facts is entirely consistent with the evidence of record. However, Dr. C's assessment that that the Veteran has episodes of severe epistaxis and other residuals of the removal of a tumor in the left maxillary sinus does not include an opinion that there was any negligence or fault on the part of VA in provided that treatment, nor did Dr. C. indicate that any current residual of that treatment was not reasonable foreseeable. Thus, Dr. C's dental statement is not favorable to the Veteran's claim, because it does not assist the Veteran to establish either fact (negligence or an unforeseeable event or result) that would assist the Veteran to substantiate his claim. The evidence establishes, by a preponderance, that the residuals of the treatment of the Veteran's left maxillary sinus carcinoma addressed in this decision do not result from fault or negligence, and are reasonably foreseeable results of that treatment. The criteria for disability compensation under 38 U.S.C.A. § 1151 for these residuals have not been met. There is no reasonable doubt. 38 U.S.C.A. § 7105(b). The claim must be denied ORDER The appeal for disability compensation under 38 U.S.C.A. § 1151 for residuals of left partial maxillectomy, left orbital floor reconstruction, medial canthal ligament repair surgery, and hospitalization following such surgery, and subsequent radiation therapy for malignant neoplasm in the left maxillary/paranasal sinuses provided by VA, to include epiphora, anosmia, dysguesia, diplopia of the left eye, right eye bulging, epistaxis, nasal obstruction, and left facial numbness at V2, is denied. REMAND The March 2013 independent medical expert opinion did not address whether the Veteran's glaucoma associated with anomalies of the iris was a result of the VA treatment of the Veteran's maxillary sinus cancer, or was a result of fault in the treatment, or whether glaucoma associated with anomalies of the iris would be a foreseeable result of treatment of the Veteran's maxillary sinus cancer. The record establishes that glaucoma was diagnosed in 2011, after the date of the most recent VA treatment records associated with the claims file. The Veteran has not been afforded VA examination that includes evaluation of glaucoma. The Veteran is entitled to further development of his claim for compensation under 38 U.S.C.A. § 1151 for this disability. Accordingly, the case is REMANDED for the following action: 1. Obtain VA ophthalmology treatment records since October 2010. 2. Afford the Veteran an opportunity to identify any non-VA treatment of glaucoma. 3. Associate all records obtained during the course of the Remand with the electronic claims folder (VBMS record). 4. Obtain an examination if necessary, or otherwise just an opinion, from an appropriate specialist who has not previously been involved in the Veteran's care or offered an opinion in this case. The claims file with associated treatment records and this Remand must be made available to and reviewed by the examiner, and the report should discuss the review. The reviewer should address the following: i) Does the Veteran have glaucoma with anomalies of the iris? ii) If so, is that disorder a proximate result of VA medical or surgical treatment? If glaucoma is not a proximate result of VA medical or surgical treatment, identify the etiology of the Veteran's glaucoma. iii) Please compare the Veteran's condition immediately before the beginning of the 2006 medical and surgical treatment for malignant neoplasm in the left maxillary/paranasal sinuses to the Veteran's condition after such care or treatment. What is the likelihood that the Veteran would have developed glaucoma if the malignant neoplasm had been left untreated? iv). Compensation is authorized where VA treatment resulted in additional disability, and the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or if the additional disability was an unforeseeable result of the treatment. a) If glaucoma is a proximate result of the VA treatment, is it at least as likely as not that the Veteran's current glaucoma results from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing 2006 medical treatment? b) If glaucoma is a proximate result of the VA treatment, but was not due to fault in the rendering of the treatment, is glaucoma an event not reasonably foreseeable? The examiner should explain the conclusion. The specialist should clearly outline the rationale for any opinion expressed and if any opinion cannot be given, the specialist should indicate the reasons why the opinion cannot be rendered. 5. Readjudicate the contentions remaining on appeal. If the benefit sought on appeal remains denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. 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. 2009). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs