Citation Nr: 1338538 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-12 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to compensation, pursuant to 38 U.S.C.A. § 1151, for additional disability due to oral and maxillofacial surgery in June 2002. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active military service from April 1982 to November 1997. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2005 rating decision in which the RO denied the Veteran's claim for §1151 compensation for additional disability due to oral and maxillofacial surgery in June 2002. This matter was remanded in June 2009, September 2010, and August 2012 for further development. In April 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's central office in Washington, DC; a transcript of that hearing is of record. FINDING OF FACT The Veteran's decreased facial sensation to both mandibular areas secondary to superficial sensory trigeminal nerve damage was not a reasonably foreseeable consequence of VA treatment. CONCLUSION OF LAW The criteria for establishing entitlement to compensation benefits for decreased facial sensation to both mandibular areas secondary to superficial sensory trigeminal nerve damage have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION § 1151 Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the Veteran's own willful misconduct or failure to follow instructions, compensation is awarded in the same manner as if the additional disability or death were service-connected. See 38 C.F.R. §§ 3.361, 3.800(a). Although claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection, there are similarities in their adjudication. Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993). A claim for 38 U.S.C.A. § 1151 benefits must be supported by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. 38 C.F.R. § 3.361. Pursuant to 38 C.F.R. § 3.361(c), claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish 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 and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); 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, 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 § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter 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 § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a Veteran's additional disability or death 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 § 17.32. In essence, a claimed disability is a qualifying additional disability if such disability 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 due to either (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. The Veteran here asserts that she has additional disability resulting from dental/oral surgery that was performed at a VA Medical Center (VAMC) in June 2002. During the June 2009 Board hearing, she testified that there was a pin in her jaw that broke off and has continued to cause her pain and numbness. She also expressed her belief that VA was negligent in her treatment and failed to complete the work that they had started. She seeks VA compensation benefits under 38 U.S.C.A. § 1151. A VA dental flow sheet reflects that the Veteran underwent a bilateral bone graft surgery on June 2, 2002, in preparation for dental implants. VA progress notes reflect that the Veteran was evaluated on May 30, 2002, for bone grafting and implant placement associated with teeth #19 and #30 (Volume 3). A May 31, 2002 dentistry initial evaluation note reflects the Veteran's complaints bilateral face pain (Volume 3). The assessment was disocclusal carious lesion of tooth #28 and a defective restoration of tooth #21. Root canal therapy on tooth #28 and an amalgam of tooth #21 were planned. A June 7, 2002, nursing note reflects the Veteran's complaints of disequilibrium since May 22, 2002 (Volume 4). It was noted that she had recent dental surgery on June 4, 2002. A June 12, 2002 dentistry operative note reflects that she underwent a keloid removal/biopsy (Volume 4). A June 14, 2002 dentistry procedure note reflects that she underwent root canal therapy for tooth #23 (Volume 4). A June 21, 2002, dentistry operative note reflects that she underwent revision of surgical margins of teeth #19 and #30 (Volume 4). The Veteran underwent a VA examination in December 2009 (Volume 6). The examiner (Dr. R.C.) reviewed the claims file in conjunction with the examination. He noted that the Veteran underwent dental surgery in 2002 for preparation for implantation of missing teeth. However, the Veteran developed an infection and the implants were never done. She complained of constant pain in both jaws (left greater than right). She reported that she takes Tegretol and Lyrica with minimal relief. Examination of the head showed no evidence of trauma, but both mandibular areas were swollen. The examiner diagnosed the Veteran with (1) decreased facial sensation both mandibular areas secondary to superficial sensory trigeminal nerve damage from oral surgery and/or infection, and (2) neuroma, left foot. He found that it was at least as likely as not that her decreased mandibular sensation and her dysarthria were secondary to the oral surgery and/or infection from 2002. He found that it was obvious that the implant procedure could not be completed due to infection and that the Veteran's dental problems represent sequelae from the process. He opined that it was less likely than not that the Veteran's neuroma of the left foot factored into the problem in any way. He stated that the Veteran's primary problem is dental and not neurological. He stated that the only neurological problem is the sensory deficit of the lower jaws that is secondary to the oral surgery and/or infection. The RO obtained another VA medical opinion in January 2012 (Volume 6). The examiner (Dr. R.R.) reviewed the claims file and noted that he had examined the Veteran on September 9, 2002 and it was clear that there was complete anesthesia of the mental branch of the mandibular branch of cranial nerve V on the right side, as well as both anesthesia and dysesthesia of the nerves serving the left facial skin and buccal mucosa #s 19-21. He stated that outpatient treatment reports conclusively establish that numb right lip, chin, teeth #s 25-28 and associated gingiva were caused by the graft to #30, and that the dysesthesia of the face and mucosa #s 19-21 were caused by the graft to #19. He noted that the question was whether the Veteran was made aware of the risk of such nerve damage in the informed consent process prior to the surgery. He found that it was standard practice to note the possibility of the neuropathies, and that it was very unlikely that the oral surgery team omitted this. He noted that in a follow-up exam, the surgeon thought that the # 19 graft procedure damaged the long buccal nerve. Dr. R.R. stated that this could have occurred either with a local anesthetic injection or the mucosal incision. He further stated that this nerve is notorious for lying in atypical locations, but that permanent damage with dental procedures is uncommon. He noted that the mental foramen was deep in the mandible and seemingly out of harm's way for the graft procedure for # 30. Consequently, Dr. R.R. opined that the damage that occurred was unforeseeable and could not have been avoided by standard procedures. Thus, despite the fact that the Veteran would have been informed of the possibility of nerve damage in general, the specific damage caused in this case was not foreseeable and thus there is no finding of informed consent as to the specific additional disability incurred here. In sum, the VA examiners have found that the Veteran's decreased facial sensation to both mandibular areas was at least as likely as not secondary to VA dental surgery in 2002. Furthermore, Dr. R.R. found that the damage that occurred was unforeseeable and could not have been avoided by standard procedures. Pursuant to 38 U.S.C.A. § 1151, compensation is payable for additional disability if such disability 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 due to either (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. As the event in question causing additional disability was not reasonably foreseeable, there is no need to consider the matter of fault on the part of VA. Rather, the criteria for establishing compensation under the provisions of 38 U.S.C.A. § 1151 has been shown, and the benefit sought on appeal is granted. See 38 U.S.C.A. § 5107(b). Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board notes that an RO letter informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of compensation, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Entitlement to compensation for decreased facial sensation to both mandibular areas, pursuant to 38 U.S.C.A. § 1151 is granted. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs