Citation Nr: 1334696 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-28 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for vertical fracture of tooth # 5 with endosteal implant placement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to April 1994, July 1996 to August 1996, and from September 2003 to August 2004. She also served in the reserve. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a decision of the VA Regional Office in San Diego, California that denied entitlement to compensation under 38 U.S.C.A. § 1151 for vertical fracture of tooth # 5 with endosteal implant placement. The Veteran was afforded a hearing at the RO in December 2006, as well as a videoconference hearing before a Veterans Law Judge, who has since retired, in September 2009. The transcripts are of record. By decision in November 2009, the Board denied entitlement to service connection for compensation purposes for a cracked fifth tooth with implant. The issue of entitlement to service connection for bilateral fibrocystic breast disease was remanded for further development. It was determined that the Veteran's testimony and statements raised a theory of entitlement to compensation for a cracked fifth tooth under 38 U.S.C.A. § 1151. This matter was remanded for development. The issues were remanded for additional development in June 2011, and in November 2012 to schedule a hearing. The Veteran was afforded a videoconference hearing in April 2013 before the undersigned Veteran's Law Judge sitting at Washington, DC. The transcript is of record.. By decision dated in July 2013, the Board denied entitlement to service connection for fibrocystic breast disease. This matter is no longer for appellate consideration. The issue listed on the title page was remanded. FINDING OF FACT The most probative evidence of record shows that the Veteran did not sustain additional disability to tooth #5 in August 2004 due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing care, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability to tooth #5 as the result of or lack of VA outpatient treatment in August 2004 and thereafter have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty 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 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103and 5103A have been met in this instance. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in November 2009 of the information and evidence needed to substantiate and complete the claim, to include notice of what evidence the claimant could provide in support of the claim, and the evidence VA would attempt to obtain on her behalf. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and affording VA examinations. These examinations are adequate to render a determination as to the issue on appeal. The Veteran also presented testimony at hearings in September 2009 and April 2013. The entire claims folder has been carefully reviewed. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. During an April 2013 Board hearing, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103(c)(2) (2013) and consistent with VA's duty to assist. Pertinent Law and Regulations The law provides that compensation may be paid for a qualifying additional disability, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, 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 establish the proximate cause of an additional disability, it must be shown that there was 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. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable in each claim 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 (2013). 38 C.F.R. § 3.361(d)(2). Factual Background VA outpatient clinic notes dated in August 2004 reflect that the Veteran was seen to establish continuing care. It was noted that she had been stationed in Cuba. During the last week in August 2004, the appellant complained of feeling "really bad" and complained of a nonpainful lump in the roof of her mouth as well as swollen glands in her throat that had developed a day before. On examination, no abnormal lesion was observed in the mouth. The neck had no masses or nodes. Following examination, the appellant was advised to return to the clinic as necessary. A VA clinical entry dated in October 2004 indicated that she was scheduled for a dental examination in October 2004 but was a "NO-SHOW." Subsequently received were private clinical records from F. A. Finazzo, DDS, of Winning Smiles Custom Dentistry, reflecting that the Veteran had been seen in mid November 2004 for an emergency examination with complaints of pain at tooth #5 and a feeling that it felt broken. Physical examination revealed that the tooth was not restorable. In completing her health information questionnaire prior to treatment and surgery, the Veteran indicated that last dental examination and full mouth X-rays were in December 2003. Dr. Finazzo extracted the residual root of tooth #5 and placed an endosteal implant at that location. Dr. Finazzo wrote in April 2006 that the Veteran presented as an emergency patient in mid November 2004 stating that a tooth on the upper right side had become loose the night before and was hurting badly. He stated that the standard of care for her situation was to extract Tooth #5 with placement of an endosseous dental implant. It was noted that the tooth that cracked appeared to have a very large filling in it. Dr. Finazzo said that he was told by the Veteran that between September 2003 and August 2004 she had received only one dental cleaning in December 2003 and no dental X-rays. Dr. Finazzo stated that an X-ray of tooth # 5 would have probably revealed that the large filling in the tooth was separating from the tooth wall. Received in January 2007 were clinic notes dated in October 2004 from C. V. Greek, M.D., a specialist in otolaryngology, indicating that the Veteran sought consultation for symptoms that included left nasal polyp and left upper mouth palate swelling. Pertinent findings included a very prominent left pterygoid hamulus. A CAT scan of paranasal sinuses was normal. Pursuant to Board remand, the Veteran was afforded a VA dental examination in August 2011. She provided history to the effect that she did not have a radiograph for a year while in service and that within 110 days of discharge from active duty, she sustained a tooth fracture that required an extraction. The appellant stated that the tooth had to be replaced with a dental implant at a cost of $5000.00 to her. She also related that within 30 days of discharge, she had a swelling in the roof of her mouth and went to VA but was not referred to the dental service because the examiner did not see the swelling. The VA examiner noted that clinical records were reviewed and that they disclosed that the appellant had a dental examination in September 2003 that included a panorex radiograph. The panorex showed a large restoration on tooth # 5. It was reported that she also had an examination in August 2004 that noted that she required prophylaxis but that no caries were observed. Dr. Finazzo findings and treatment were recounted. Following examination, the VA examiner stated that according to the medical records, tooth # 5 was lost due to a vertical root fracture, and that the etiology of such was likely due to the large restoration in #5 and occlusal trauma over time. In an August 2012 addendum to the August 2011 dental report, the VA examiner stated that the cracked tooth # 5 was less likely than not proximately caused by or due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment as vertical root fractures were often not seen radiographically and were often [not] symptomatic before being diagnosed. In September 2012, Dr. Finazzo wrote that it was unclear why a VA physician did not refer the Veteran to the VA dental clinic when she complained of a swelling or lump in her mouth. He stated that if the emergency room physician could find nothing, "...it appears to me that the VA should have offered [the Veteran] a dental examination." Dr. Finazzo related that the Veteran deserved a dental examination to determine why a lump or swelling appeared in the roof of her mouth, "...and for the patient to be sent away without a dental examination is a failure to exercise reasonable skill and care." It was his opinion that the Veteran did not receive thorough dental care from VA in 2004. The Veteran presented testimony on personal hearings in December 2006 and April 2013 to the effect that VA was negligent when she was not referred for a dental examination following her complaints of a lump or swelling on the roof of her mouth in August 2004. She indicated that had she received proper follow-up, evidence of a failing restoration at tooth # 5 might have been detected, and subsequent costly dental trauma would have been averted. As such, she averred that VA did not provide proper care on that occasion and that this made her tooth condition much worse, leading to an extraction and necessity for a dental implant. Legal Analysis The Board has carefully reviewed the evidence of record. However, it is found that although the appellant asserts that she developed additional disability of tooth #5 as the result of lack of improper care, error in judgment, or similar instance of fault on VA's part, there is nothing in the VA records to support this contention. In this regard, when the Veteran was examined for complaints of a lump on the roof of her mouth and swollen glands in August 2004, she was examined and no swelling was observed in her mouth or on her neck. Records clearly indicate that she was advised to return as needed if symptomatology persisted. It appears, however, the appellant does not recall that she sought further treatment in October 2004 for symptoms that included upper palate swelling from a private physician, C. V. Greek, M.D., who clearly determined that she had a very prominent left pterygoid hamulus at the time. A pterygoid hamulus is a hooklike process on the inferior extremity of the medial pterygoid plate of the sphenoid bone around which the tendon of the tensor veli palatine muscle passes. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 731 (28th ed. 1994). There was no indication that there was tooth or dental involvement in this assessment. Notwithstanding that there was no indication that a dental problem was involved in the complaints of palate swelling, VA records clearly document that the appellant was scheduled for a dental examination in October 2004 but that she was a "NO-SHOW." Although she now asserts that VA did not provide appropriate follow-up or referral after her mouth symptoms in August 2004, the evidence clearly reflects that the Veteran disregarded a VA dental appointment that was scheduled almost a month prior to the onset of symptoms affecting tooth # 5. As such, she is an unreliable historian and her assertions that VA did not attempt to provide dental follow-up are not credible. The Veteran is competent to report symptoms she experienced with her tooth. See Layno v. Brown, 6 Vet.App. 465, 469 (1994). However, the question of whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part is a complex medical issue that is beyond her expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote four that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In this regard, the appellant has submitted an opinion by her treating private dentist, Dr. Finazzo, who found that VA failed to exercise reasonable skill and care when it did not provide the Veteran a dental examination to determine why she had complaints of a lump or swelling in the roof of her mouth. Dr. Finazzo states that an X-ray of tooth # 5 would have revealed that the large filling was separating from the tooth wall, and, as such, the Veteran did not receive thorough dental care from VA in 2004. The Board finds, however, that Dr. Finazzo report is based on an inaccurate factual premise and is not probative. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993). This is because, the Veteran is shown to have received additional private treatment for the same complaint in October 2004 and she was scheduled for a VA dental examination in October 2004 to which she failed to report. Moreover, when the evidence was reviewed for compensation purpose by VA in August 2011 and 2012, the examiner clearly determined that the Veteran's tooth fracture was caused by occlusal trauma over time and was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment. As further rationale for the opinion, the examiner stated that vertical root fractures were often not seen radiographically. Therefore, after carefully considering the evidence, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151. The Board acknowledges that the Veteran may subjectively believe that VA's failure to properly follow up her complaints of mouth roof swelling in August 2004 led to additional disability of tooth # 5. As discussed above, however, the record demonstrates no evidence of a relationship between her complaints at that time and the subsequent fractured tooth. Additionally, there is evidence that she did not report for a VA dental examination scheduled in October 2004. Therefore, she cannot now claim that but for VA's negligence, she might not have sustained tooth trauma and the necessity for an implant. As such, the Board finds that the VA examiner's opinion in August 2012 is more competent and probative in finding that the evidence preponderates against finding negligence, a lack of proper skill or fault on VA's part in its treatment in August 2004. In the absence of competent evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing medical treatment between in August 2004 and thereafter, there is no unforeseeable result. The Board thus concludes that compensation under 38 U.S.C.A. § 1151 for additional disability to tooth # 5 is not warranted. The preponderance of the evidence is against the claim and it is denied. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for cracked tooth # 5 with residual of implant placement is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs