Citation Nr: 1742797 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 13-22 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for VA providing the Veteran with incorrect medication that resulted in recurrent burning/itchy skin, muscle pain, shortness of breath, dizziness, vertigo, an eye disorder and aggravation of type II diabetes mellitus. 2. Entitlement to service connection for a left jaw disorder 3. Entitlement to a compensable disability rating for service-connected residuals of fractured right leg. (The issue of the validity of the debt created based on Veterans Pension award adjustment from August 2014 will be the subject of a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and J.D. ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to November 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida. These claims were previously before the Board in June 2015, at which time they were remanded for additional development. That development having been completed, these claims are once again before the Board. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2017. A copy of the transcript is of record and has been reviewed accordingly. The issue of entitlement to service connection for a left jaw disorder for VA dental treatment purposes has been raised by the record in a claim submitted in person at the Veteran's August 2017 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Although the Veteran's claim of service connection for a left jaw disorder is currently before the Board, the issue of service connection for treatment purposes has not been previously adjudicated by the AOJ, which in this case is the Veterans Health Administration (VHA) in accordance with regulation in 38 C.F.R. § 3.381. Therefore, the Board does not have jurisdiction over this issue, as it is separate from the compensation issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement compensable disability rating for service-connected residuals of fractured right leg is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran has any currently diagnosed disability as a result of VA providing him with incorrect medication. 2. The probative medical evidence of record does not show that the Veteran's claimed left jaw disorder, manifested by missing teeth, was caused by or incurred in military service or within one year of leaving service. CONCLUSIONS OF LAW 1. A right ankle and/or foot disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303 (2016). 2. A left jaw disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran, nor his representative has raised any additional issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for claims filed on or after October 1, 1997, as in this case, under 38 U.S.C.A. § 1151(a), compensation "shall be awarded for a qualifying additional disability in the same manner as if such additional disability were service[ ]connected" if the disability was (a) ... not the result of the veteran's willful misconduct and- (1) ... 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 or death 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. Thus, to obtain benefits under 38 U.S.C.A. § 1151 (a), a claimant must show: (1) A "qualifying additional disability," (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361(c)(1), (d)(1) (2016). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1) (2016). A finding as to direct cause is antecedent to any finding on negligence. Similarly, a finding on foreseeability is necessary only if the disability was caused by the VA treatment. See Loving v. Nicholson, 19 Vet. App. 96, 99 (2005). To determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b) (2016). VA considers each involved body part or system separately. Id. 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. 38 C.F.R. § 3.361(c)(1) (2016). Merely showing that a veteran received care, treatment, or examination, and that the veteran has additional disability or death, does not establish cause. Id. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2) (2016). 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. Id. 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)(2016). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis 1151 The Veteran contends that he received medication from the VA that belonged to another veteran. He has stated that he was contacted by the VA Clinic that had sent the medication, which was supposed to be his normal cholesterol medicine. The medication from the other veteran was also a cholesterol medicine. The Veteran has stated that he ingested both medications before he realized that one was not his. He alleges that he was treated at the local emergency room due to "burning up." The Veteran reported that he was treated at the Healthmark Regional Medical Center due to experiencing dizziness. The Veteran further indicated that his diabetes has worsened, he has developed a skin rash, a tumor in his throat appeared, and his eye condition worsened all due to taking the medication. Healthmark Regional Medical Center emergency room treatment records show that the Veteran was seen on August 2009 for a skin rash with itching urticaria, determined to be an allergic reaction. The Veteran was administered Decadron, Benadryl, and prednisone and discharged home after stabilization. There was no evidence of any residual disability due to the incident. A review of the Veteran's VA outpatient treatment records fail to show that the Veteran has been treated for any chronic disability incurred as a result of the medication taken in August 2009. The treatment records fail to show the diabetes worsened as result of that incident or that the Veteran has any other disability resulting from the medication. The Veteran submitted private treatment records from May and June 2011 showing that he had unilateral weakness for the right ear, but this disability was not shown to be result of receiving the wrong medication in August 2009. Peripheral neuropathy and visual problems from his diabetes and a predisposition to spatial disorientation as such was also noted. The Veteran was provided with a VA examination in September 2015. Upon a review of the claims file, subjective interview, and objective testing, the VA examiner concluded that the Veteran was affected by a one-time dose of Niacin that resulted in receipt of medical care. The September 2015 VA examiner diagnosed Urticaria secondary to one dose of Niacin (claimed as recurrent, burning/itchy skin). It was noted that this was the only side-effect and resolved without residuals, after stopping Niacin. The VA examiner further opined "It is less likely as not that the Veteran sustained additional disability as a result of VA's providing the Veteran with the wrong medication in August 2009, because the reaction he suffered in the form of urticaria associated with burning/itching was due to his first dose of Niacin, which he had been educated by clinical pharmacist prior to arrival of it to him by mail, making it the correct medication; the claim of the Veteran sustaining disability by VA providing wrong medication in Aug 2009, is not supported by the evidence on records." Also, it was noted "[i]t is less likely as not that the Veteran sustained additional disability as a result of VA's providing the Veteran with the wrong medication in August 2009 because there is no documented dizziness/vertigo, shortness of breath, muscle pain, eye disorder or aggravation of his diabetes, as a result of incorrect medication provided by the VA." The threshold requirement for the granting of service connection, including for a claim under 38 U.S.C.A. § 1151 (a), is evidence of a current qualifying disability. In the absence of evidence of a current disability, in this matter a diagnosis of any claimed chronic residual disability manifested by dizziness/vertigo, shortness of breath, muscle pain, eye disorder or aggravation of his diabetes, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in such a claim of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). As stated above, under 38 C.F.R. § 3.361(b), in order to determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of any chronic residual disability manifested by dizziness/vertigo, shortness of breath, muscle pain, eye disorder, or aggravation of his diabetes during the relevant period on appeal. Rather, the evidence reflects that the Veteran merely suffered an acute allergic reaction, i.e. urticaria, which resolved as soon as the medication in question was ceased. This is supported by the probative medical evidence of record which includes both the emergency room treatment reports of August 2009 and the opinion of the September 2015 VA examiner. The Board additionally notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general, or endocrinology, dermatology, ophthalmology, neurology, or pulmonology more particularly, and that he is merely speculating as to whether he has any current diagnoses of a disability manifested by dizziness/vertigo, shortness of breath, muscle pain, eye disorder or aggravation of his diabetes. In this regard, he is not competent to diagnose such disabilities, as they require specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has a current diagnosis of a disability manifested by dizziness/vertigo, shortness of breath, muscle pain, eye disorder or aggravation of his diabetes are lacking in probative value. Therefore, the most probative evidence of record reflects that the Veteran lacks a diagnosis of a disability manifested by dizziness/vertigo, shortness of breath, muscle pain, eye disorder or aggravation of his diabetes during the appeals period. Absent the required diagnosis of a disability manifested by dizziness/vertigo, shortness of breath, muscle pain, eye disorder or aggravation of his diabetes, at any time during the appeals period, there is no current disability to attribute to the Veteran's alleged injury by taking the wrong medication provided by VA. Brammer, 3 Vet. App. at 223. For the reasons provided above, the preponderance of evidence is against the Veteran's claims for dizziness/vertigo, shortness of breath, muscle pain, eye disorder, or aggravation of his diabetes due to the result of his VA care. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. Left Jaw Disorder The Veteran contends that he currently suffers from a left jaw disorder, manifested by the removal of eleven teeth that is the result of military service. In this regard the Veteran has testified that during military service, he was hit in the left jaw with the back of a riffle during a storm while stationed in Oklahoma. The Veteran stated that he was treated in service for this condition and informed that he would loose his teeth as a result. The Veteran indicated that, years after leaving military service, he had teeth removed as a result of this incident. A review of the Veteran's service treatment records shows that he received an injury to his left cheek in 1970. The record was absent for any further discussion of an injury to the Veteran's left jaw or the loss or pending removal of any teeth, despite complete medical record, to include dental records and examinations. A review of the Veteran's post-service treatment records shows that he has had eleven teeth removed in the years since leaving military service. There has been no indication in these records that such removals were there result of any incident in military service. The Veteran was provided with a VA examination in July 2010. At the examination, upon a review of the claims file, subjective interview, and objective testing, the VA examiner noted that the Veteran was missing eleven teeth, encompassing all four quadrants. The VA examiner opined that there was insufficient evidence to determine whether it was as least as likely as not that the Veteran's tooth loss was the result of the claimed in-service left jaw injury. No further explanation was provided. The Veteran was provided with an additional VA examination in September 2015. Upon a review of the claims file, subjective interview, and objective testing, the VA examiner noted that the Veteran was missing eleven teeth, encompassing all four quadrants. It was further noted that the Veteran sustained an injury to his cheek in 1970, but his record is silent for any damage to his teeth. The Veteran was shown to have entered active service with multiple restorations. His dentition was noted to be fully functional, but it could be improved with removable partial dentures. His records were silent for extractions in his upper left quadrant. There was no evidence to support a claim that he lost teeth as a result of the cheek injury he sustained in military service, as subsequent dental records did not reveal that the Veteran's tooth loss was the result of any trauma. As such, the VA examiner opined that it is less likely as not that he is missing teeth numbers 12,13,14 as a result of the trauma that he sustained while on active duty. These findings were based upon a clinical examination, panoramic radiograph, patient history, and review of Veteran's claims file. Based upon the forgoing evidence, the Board finds service connection for a left jaw disorder is not warranted. The Veteran is shown to have a current diagnosis of the absence of eleven teeth on the left side of his jaw as per his outpatient treatment records and VA examinations. Additionally, it is noted that the Veteran sustained an injury to his left jaw resulting in a cheek abrasion in military service. As such, the inquiry turns upon a finding of nexus between the Veteran's currently diagnosed tooth loss and his in service left jaw injury. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1166-67. Here, the only probative medical opinion of record regarding the Veteran's tooth loss was provided via the September 2015 VA examination. It is noted that this examination, which was provided by a competent medical examiner, is found to be credible based upon the utilization of objective testing methods and medical opinion basis in established medical knowledge and literature. Based upon such, the examiner found that the Veteran, had he sustained any actual injury to his teeth during military service, would have suffered from any resultant tooth loss at that time. Because the medical record is absent for any showing of loss or removal of teeth during military service or within one year post-service, it was less likely than not that the Veteran's left jaw injury resulted in such and, more likely than not, resulted only in an acute left cheek abrasion. The only other evidence in the claims file supporting the existence of tooth loss that is the result of an injury to the left jaw in military service are the Veteran's own statements. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr, 21 Vet. App. At 308-10. However, it is clear, based on a detailed review of the statements overall, that the Veteran does not have any actual specialized knowledge of medicine in general, or dentistry more particularly, and that he is merely speculating as to whether he has such a relationship. In this regard, he is not competent to formulate such a nexus opinion, as such diagnoses require specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has a showing of nexus lack probative value, and are outweighed by the competent and credible findings of the 2015 VA opinion. In short, in the absence of persuasive probative evidence demonstrating any showing of nexus, a preponderance of the evidence is against the claim. Accordingly, because the nexus element required for service connection has not been satisfied, the Veteran's claim of entitlement to service connection for a left jaw disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for VA providing the Veteran with incorrect medication that resulted in recurrent burning/itchy skin, muscle pain, shortness of breath, dizziness, vertigo, an eye disorder, and aggravation of type II diabetes mellitus is denied. Entitlement to service connection for a left jaw disorder is denied. REMAND The Board observes that in an opinion issued by the United States Court of Appeals for Veterans Claims (Court), Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Here, the Veteran's VA examinations for his right leg fracture residuals have conducted range of motion testing, but have not provided such in line with the directives of Correia. Accordingly, the Board finds that the Veteran must be scheduled for a new VA examination for his right leg disability. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding treatment records related to the Veteran's the right lower extremity. 2. Thereafter, the Veteran should be scheduled for a VA examination of his right leg fracture residuals with an appropriate person to evaluate the severity of the Veteran's condition. The claims file should be made available to the VA examiner for review in connection with the examination. All pertinent symptomatology and findings should be reported in detail. The examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If any of the tests cannot be conducted, then the examiner should indicate that such testing cannot be done, and explain why that is the case. A complete rationale for all opinions should be provided. 3. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran 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 2014). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs