Citation Nr: 1509019 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 09-50 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for post vasectomy residuals. 2. Entitlement to a rating in excess of 10 percent for right inferior alveolar nerve neuropathy with masticatory muscle myalgia. 3. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome. 4. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome. 5. Entitlement to service connection for a back disability, to include as secondary to service-connected knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from January 1995 to July 1999. This appeal is before the Board of Veterans' Appeals (Board) from September 2006 and December 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript is included in the claims file. Additional evidence was received by the Board following the November 2009 and February 2014 statements of the case, but is either not pertinent or redundant of evidence that was previously of record with respect to the claims herein decided. See 38 C.F.R. §§ 19.31(b), 19.37(a), 20.1304(c). The issue of entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) was raised by the Veteran in connection with a claim for another disability that is not currently before the Board, and is currently being developed by the RO. Therefore, the Board will not address that matter in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of ratings in excess of 10 percent for right and left knee patellofemoral syndrome, and service connection for a back disability, to include as secondary to service-connected knee disabilities, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. No pain syndrome or other additional disability caused by VA medical treatment was either the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the Veteran's November 2005 vasectomy or any other medical or surgical treatment, or an event not reasonably foreseeable. 2. The Veteran's right inferior alveolar nerve neuropathy with masticatory muscle myalgia approximates severe incomplete paralysis of the fifth (trigeminal) cranial nerve. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for post vasectomy residuals have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.361, 17.32 (2014). 2. The criteria for a rating of 30 percent, but no greater, for right inferior alveolar nerve neuropathy with masticatory muscle myalgia, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.124a, 4.150, Diagnostic Codes 8205, 9905 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letters dated in December 2005, March 2006, and July 2009. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and pertinent VA medical records have been obtained. Also, the Veteran was provided VA examinations in connection with his claims in August 2009 and June 2006. These examinations, and their associated reports, including an October 2009 addendum to the August 2009 report, were adequate. Along with the other evidence of record, they provided sufficient information and sound bases for decisions on the Veteran's claims. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). While the August 2009 VA examination addressing the Veteran's claim for compensation under 38 U.S.C. § 1151 for post vasectomy residuals did not address his asserted additional disability of erectile dysfunction, as discussed below, the Veteran denied having erectile dysfunction at the time of that examination, and there is no competent or credible evidence indicating that the erectile dysfunction may be associated with any VA surgery or treatment. Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the September 2014 Board personal hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Thus, the VLJ sufficiently complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and any error in notice provided during the Veteran's hearing was harmless. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Compensation under 38 U.S.C. § 1151 Under 38 U.S.C.A. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. 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 and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the 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 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. Determinations of whether there was informed consent involve consideration of 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 in orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). 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 informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In this case, the record reflects that the Veteran underwent a vasectomy at a VA facility on November 14, 2005. As reflected in a November 3, 2005, informed consent note, the Veteran gave his signature for informed consent for his vasectomy prior to the surgery. A December 2005 follow-up note reflects that the Veteran was status post vasectomy, with minimal, tolerable pain. A November 2006 note reflects that the Veteran had had left inguinal pain that had been persistent since his surgery, 3/10 in intensity, with no difficulty with ejaculations or erections. As reflected in his September 2014 testimony before the Board, the Veteran asserts that his vasectomy surgery resulted in left testicular pain and swollen, discolored, and disfigured testicles, and that such additional disability was the result of negligence on the part of VA in performing the surgery. The record does not reflect, and the Veteran has not argued, that his vasectomy was performed without his informed consent. Also, as reflected in an August 2009 VA examination report assessing post-vasectomy pain syndrome, the medical evidence reflects that the Veteran has incurred additional disability as the result of his November 2005 VA vasectomy. The question in this case is thus whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider such that the Veteran's additional testicular disability was the result of negligence or similar instance of fault on the part of VA. The most probative evidence on this question is an August 2009 VA examination report and accompanying October 2009 addendum. At the time of the examination, the Veteran denied erectile dysfunction, and on examination there was no deformity of the penis. There was no testicular atrophy and testicular consistency was within normal limits, although there was testicular tenderness bilaterally. After reviewing the record and examining the Veteran, the VA examiner's assessment was pain status post vasectomy. The examiner opined that the Veteran's current pain was as likely as not due to his vasectomy, citing a medical article entitled "The incidence of post-vasectomy chronic testicular pain and the role of nerve stripping (denervation) of the spermatic cord in its management," stating that it was estimated that 5 to 33 percent of vasectomized men have post vasectomy pain syndrome that can last a lifetime. In the October 2009 addendum, the examiner stated that there was no evidence that the Veteran's residual vasectomy pain syndrome was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the attending VA personnel or the result of an event that could not reasonably have been foreseen or anticipated by a competent health care provider. The examiner again noted the medical literature cited in the August 2009 examination report indicating that the Veteran's pain syndrome can occur post vasectomy in a certain percentage of patients. The Board finds the August 2009 VA examination report and October 2009 addendum to be highly probative in this case. The examiner was a medical expert who examined and interviewed the Veteran, reviewed the record, and provided an opinion with a highly plausible rationale, citing to pertinent medical literature. Moreover, there is no competent and probative evidence such as a medical opinion contradicting the VA examiner's opinions or otherwise suggesting that any additional disability was the result of negligence or similar instance of fault on the part of VA in performing the Veteran's vasectomy. While the Veteran might contend that his pain syndrome is the result of such negligence, he is not competent to make any such medical determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes the Veteran's contention during his September 2014 Board hearing that he now has problems with erections. VA treatment records reflect that the Veteran has sought treatment for erectile dysfunction since May 2010. A May 2010 VA treatment note reflects that he reported having erectile dysfunction since after his vasectomy in 2005. However, the August 2009 VA examiner did not make any opinion regarding erectile dysfunction as the result of the Veteran's vasectomy because, as noted above, the Veteran at that time denied erectile dysfunction. Indeed, the August 2009 VA examination report includes a laboratory analysis of a semen sample provided by the Veteran. And as noted above, a November 2006 VA note reflects that, while the Veteran had had persistent left inguinal pain since his vasectomy, he had no difficulty with ejaculations or erections. Given these statements during November 2006 treatment and on August 2009 VA examination, the Board finds the Veteran's assertion of having had erectile dysfunction since his 2005 vasectomy not to be credible. Moreover, there is no competent evidence, or any evidence beyond the Veteran's unsupported speculation, suggesting a link between any current erectile dysfunction and the Veteran's 2005 vasectomy. Therefore, the evidence weighs against a finding that any pain syndrome or other additional disability caused by VA medical treatment was either the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing his November 2005 vasectomy or any other medical or surgical treatment, or an event not reasonably foreseeable. Accordingly, compensation under 38 U.S.C. § 1151 for post vasectomy residuals must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. III. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right inferior alveolar nerve neuropathy with masticatory muscle myalgia is rated under Diagnostic Code (DC) 8205 for paralysis of the fifth (trigeminal) cranial nerve. Under DC 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the nerve; a 30 percent rating is warranted for severe incomplete paralysis of the nerve; and a 50 percent rating is warranted for complete paralysis of the nerve. The ratings are dependent on relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a, DC 8205. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). On June 2006 VA examination, the Veteran reported having had his wisdom tooth removed in service, and that, after the procedure, he developed numbness in his right lower jaw that had persisted over the years. He admitted trouble with eating certain foods, that on occasion his jaw would lock up, and that these symptoms were interfering with his activities of daily living. On examination, there was no weakness or atrophy seen and tone was normal. Sensory perception was reduced with pinprick to the lower jaw, and the rest was normal to light touch, pinprick and position vibrations. There was tenderness at the bilateral temporomandibular joints with reduced opening of the Veteran's mouth. A May 2010 VA treatment record reflects that the Veteran reported frequently biting his cheek and tongue on the right side, drooling, and requiring more time to eat. He indicated reduced sensation on the right lower face, including right lips, cheek, tongue, and jaw. He reported using gauze daily to control excess secretions in the oral cavity related to decreased sensation. He further noted a continued tendency to bite his tongue, and reported difficulty chewing and feeling fatigued when eating, stating that his "tongue gets tired." On oral motor examination, bilateral upper facial movement, labial, buccal, and mandibular strength and resistance were grossly adequate. Lingual coordination and range of motion appeared adequate with reduced strength on all margins, which may have been related to effort. However, there were absent reflexes, and the Veteran indicated reduced sensation on right cheek and pain in mandible inferior to lips. During his September 2014 Board hearing, the Veteran testified that he had difficulty chewing, that he had to blend his food to eat it, and that his face was numb and tingling all the way back to his ear. It was noted by the VLJ that the Veteran had saliva on the affected portion of his face when he was speaking. Given the above, resolving reasonable doubt in the Veteran's favor, the Board finds that his right inferior alveolar nerve neuropathy with masticatory muscle myalgia approximates severe incomplete paralysis of the fifth (trigeminal) cranial nerve. Thus, a rating of 30 percent under DC 8205 is warranted. The record does not reflect, and the Veteran has not contended, that he has had complete paralysis of the fifth nerve. Thus, a higher rating of 50 percent is not warranted under DC 8205. The Board notes that the Veteran is separately rated at 20 percent for myelofibrotic contracture masticatory muscles with bruxism and oromandibular dystonia under DC 9999-9905 for limited motion of temporomandibular articulation. See 38 C.F.R. § 4.150, DC 9905; see also 38 C.F.R. §§ 4.20, 4.27. This rating indicates inter-incisional range limited to 21 to 30 millimeters. However, in this case the Veteran is being rated on factors other than limitation of jaw movement, as noted above, such as biting his cheek and tongue on the right side, drooling and excess secretions in the oral cavity related to decreased sensation requiring the use of gauze, and difficulty and fatigue when eating unrelated to limitation of jaw motion. The Board therefore does not find the symptoms for which he is rated under DC 9999-9905 and DC 8205 to be duplicative. See 38 C.F.R. § 4.14; Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Finally, any consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) is deferred here in light of the claims being remanded. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, a rating of 30 percent, but no greater, for right inferior alveolar nerve neuropathy with masticatory muscle myalgia is warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Hart. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable to that extent. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER Compensation under 38 U.S.C. § 1151 for post vasectomy residuals is denied. A rating of 30 percent, but no greater, for right inferior alveolar nerve neuropathy with masticatory muscle myalgia is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND Regarding the Veteran's increased rating claims for knee disabilities, the Veteran submitted his own copies of VA treatment records from the Jesse Brown VA Medical Center (VAMC) and Hines VAMC, dated from September 2008 through May 2011. However, such records are incomplete and there is no indication that VA has made attempts to obtain these records itself; in this regard, all records of treatment from Jesse Brown VAMC, of which there appear to be hundreds, are copies submitted by the Veteran. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Moreover, many such records appear to be pertinent to the Veteran's knee claims, and indicate that the Veteran's knee disabilities may have worsened since his most recent VA knee examination in June 2006, at which time he was diagnosed with patellofemoral syndrome of each knee. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); VAOPGCPREC 11-95 (1995). On an August 2009 VA examination involving the left leg and knee, on range of motion testing, it was noted that pain was limiting extension of the knee to 160 degrees, while flexion of the knee was limited to 110 degrees; such range of motion measurements do not make sense on their face, and the right knee was not examined at that time. See 38 C.F.R. § 4.71, Plate II. However, the report suggests that one or both of his knee disabilities may have worsened. Also, in October 2009, the Veteran complained of right knee problems and was assessed with "equivocal exam, pain over anterior knee and some locking and catching [of right] knee." February through May 2010 VA treatment records reflect physical therapy for the Veteran's knees and diagnoses of bilateral knee arthritis. Furthermore, during his September 2014 Board hearing, the Veteran reported that he was currently undergoing VA physical therapy for his knees, and that he had undergone examination of his knees recently in connection with such physical therapy. However, there are no VA treatment records associated with the claims file dated after May 2011. At the time of the hearing, the Veteran was advised by the VLJ to attempt to obtain such records so that remand for such records would not be necessary. However, the only medical document submitted since that time has been a note from a VA physician indicating that the Veteran would need more time to have an evaluation of his knees according to the applicable rating criteria, due to lack of availability of his primary care physician. Regarding the Veteran's service connection claim for his back, the record appears to contain two conflicting VA opinions-one in May 2006 and one in June 2006- regarding whether a current back disability is caused or aggravated by the Veteran's service-connected knee disabilities, and neither opinion is supported by any rationale or explanation. See Barr, 21 Vet. App. at 311. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding pertinent VA medical records, to include all those from the Jesse Brown and Hines VAMCs, dated from 2006 to the present. 2. Then, schedule the Veteran for a VA orthopedic examination. The claims file should be made available to the examiner. The examiner should report the extent of the Veteran's knee disabilities in accordance with VA rating criteria. The examiner should also determine whether it is at least as likely as not (i.e. a 50 percent probability or more) that a current back disability is caused or aggravated (i.e. permanently worsened beyond its natural progression) by the Veteran's service-connected knee disabilities. A complete rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether inability to provide a more definitive opinion is the result of a need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above and any other necessary development, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs