Citation Nr: 1800460 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-02 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for loss of taste and dry mouth or "cotton mouth" as a result of a surgery performed at a Department of Veterans Affairs (VA) medical facility in January 2008. 2. Entitlement to service connection for loss of taste and dry mouth or "cotton mouth." REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served in the Army National Guard from January 1975 to January 1981, with periods of active service. He is service connected for several disabilities at present. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2010. A transcript of the hearing has been associated with the electronic claims file. The Board remanded the section 1151 claim in March 2011 and March 2015 for additional development. Based on the association of VA treatment and surgical records (including the Veteran's informed consent for the January 2008 ear surgery), the May 2015 VA examination reports, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for loss of taste and dry mouth or "cotton mouth" is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Additional disability of loss of taste and dry mouth or "cotton mouth" was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for additional disability of loss of taste and dry mouth or "cotton mouth" due to care received by VA in 2008, to include surgery on January 17, 2008, have not been met. 38 U.S.C. §§ 1151 , 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). To the extent that the Veteran's representative has argued that the June 2015 VA examinations were inadequate, the argument is that they failed to address the claim for service connection on a direct basis, which is a separate issue remanded herein. For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Section 1151 Claim The Veteran contends that he developed loss of taste and dry mouth or "cotton mouth" as the result of VA right postauricular tympanoplasty on January 17, 2008. (In addition, the Veteran contends that his right ear problems are residuals of chronic disability that had their onset during service. This issue is remanded below.) In pertinent part, section 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service- connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) 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. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, 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. 38 C.F.R. § 3.361(c)(1). 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. 38 C.F.R. § 3.361(c)(2). 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(c)(3). 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. 38 C.F.R. § 3.361(d). 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 of this chapter. VA treatment records document that on January 17, 2008, the Veteran underwent a right postauricular tympanoplasty under general anesthesia. Prior to that surgery, the Veteran signed a "CONSENT FOR TREATMENT/PROCEDURE" wherein he acknowledged the type of procedure to be conducted and a description of the surgery. The known risks of the surgery listed on the consent form included the loss of sense of taste on the side of the tongue and paralysis of the face on the side of the surgery from injury to the facial nerves. The subsequent operation report also noted that the procedure was conducted after informed consent was obtained. The Veteran was brought to the operating room and general anesthesia was administered. No complications were noted in the operation report. The Veteran reported during a January 2008 follow-up visit that after the surgery he had experienced some right facial swelling with ecchymosis under the right eye that had fully resolved. The Veteran denied any other problems since the surgery. During a February 2008 follow-up appointment, the Veteran reported some taste changes along the right side of the tongue, as well as mild irritation behind the right ear from his glasses. In a December 2008 statement, the Veteran alleged that his "cotton mouth and loss of taste" was chronic and getting worse. He had experienced 3 surgeries on his ears. In a February 2009 VA examination, the Veteran's main complaint was a "cotton mouth" feeling (dry mouth). He also had problems tasting certain food and his tongue would burn when eating spicy foods. The symptoms had started after the right tympanoplasty (repair of a tympanic membrane perforation) in January 2008. The Veteran complained that not everything was explained to him regarding the ear surgery and that when he was ready to be taken in to the operating room, that was when the doctor doing the surgery explained the extent of the incision around his ear and that some nerves might be affected during the operation. If he had known earlier, the Veteran contended that he might not have gone ahead with the operation. Following the procedure, for a few days there was swelling over the right face and he noticed a change in taste. The Veteran reported the issue and was told that the symptoms should improve in a few weeks. The symptoms had not improved. Following examination, the diagnoses included perverted taste with oral sicca (subjective). The examiner noted that it was not unusual to have symptoms with regards to the tongue (paresthesia and taste changes) following ear surgery with injury to the chorda tympani nerve. That said, the operative report was not of record. As to the Veteran's contention that he was not explained the potential complications of the surgery, the examiner could not make a definitive conclusion because the relevant records were not in the file. A May 2009 VA examination report noted review of the claims file. The Veteran reiterated his contention that he was bothered by "dry mouth" with some loss of taste the Veteran described as "cotton mouth." The Veteran again contended that the possible complications were not provided until after he had been given his pre-operative medication and that otherwise he might not have consented to the procedure. Since the surgery, the Veteran had experienced oral symptoms of dry mouth and loss of taste and on a subsequent visit he was told that the problems should resolve, but they had not. The examiner diagnosed mild xerostomia (dry mouth) and oral symptoms most probably secondary to chorda tympani nerve injury from ear surgery. The examiner noted that injury to the chords tympani nerve could cause dryness of the mouth and also affect taste sensation and such problems were not unusual in middle ear surgery. That said, the operative note did not address the nerve, so the examiner could not reach a conclusion regarding the nerve injury without examining the operative note at the medical facility. During the Veteran's May 2010 Board hearing the Veteran contended, "I was not made aware that [the January 2008 surgery] was going to be different until the point when the doctor had me sign a waiver and he said something to the effect that there was a possibility they could cut the nerve that controlled my muscles, and also that they could cut a nerve that, uh, dealt with my taste on my tongue and that stuff. And they had already hooked me up to IVs and that stuff when they told me this. Nobody had told me that it was different. I assumed that it was going to be the same type of surgery." Later in the hearing, he alleged that he signed the consent after he had been administered general anesthesia and that he was not thinking straight. The Veteran's daughter was with him and signed as a witness. The Veteran contended that prior to the surgery the doctor mentioned that there might be a loss of taste, but there was no mention of an inability to produce saliva. The Veteran described the difference between the January 2008 surgery and his prior ear surgeries: "The first, or the other surgeries that I had, they took a, just a piece of muscle from above my ear and they stretched it over the eardrum. This particular surgery they cut all the way around the ear and laid the ear over, and then worked on the, uh, eardrum that way." The Veteran was afforded multiple VA examinations in May 2015. The Veteran had a noted hypersensitivity to hot spicy foods and acidic food like oranges and lemons, as well as xerostomia (i.e. dry mouth). The Veteran complained of dry mouth following his 2008 surgery, as well as enhanced loss of teeth. Following the examinations, the examiner concluded that it was less likely than not that the complications were related to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA providers and that it was less likely than not that the complications were not reasonably foreseeable. The rationale noted the Veteran's complaints about "cotton mouth" or "dry mouth" and that such problems were due to problems with the autonomic nervous system and that the major innervatory for saliva in the mouth was via the submandibular glands under the chin. That gland produced more than half of the saliva in the mouth and was innervated by the fifth cranial nerve, greater petrosal division. The examiner noted that the Veteran's complaints of xerostomia were valid as such symptoms were related to the greater petrosal nerve (autonomic division of the facial nerve). Dry mouth was a risk every time the Veteran had surgery on the tympanic membrane and since he had undergone several surgical procedures on the right tympanic membrane it was not possible to pinpoint whether his dry mouth was due to the cumulative effects of so many surgeries or simply the last surgery. During an October 2015 RO hearing, the Veteran's attorney conceded that although the Veteran's claim had been categorized as one for entitlement benefits under the provisions of 38 U.S.C. § 1151 based on negligence that "there's really no proof of that." Instead, the attorney argued that it was "more reasonable to characterize it as a natural progression of this chronic systemic problem that's just been going on since 1971." Essentially, the Veteran and his attorney representative argued that the nerve causing the Veteran's symptoms (and possibly the surrounding bone) had been eroded away by chronic ear infections since 1971. Due to the lack of saliva, the Veteran had lost his remaining teeth. The Veteran submitted a November 2015 Ear Conditions Disability Benefits Questionnaire completed by his private physician. The physician noted a diagnosis of bilateral temporomandibular perforation and that the Veteran had undergone 5 operations to repair ruptured ear drums and that the last surgery had resulted in the loss of salivating oral secretions on the right side. A November 2015 Loss of Sense of Smell and/or Taste Disability Benefits Questionnaire noted that the Veteran had a very sensitive tongue. An April 2017 VA Form 9 contended that, "The medical opinion by the VA is inadequate. It fails to properly address the specific facts in this case." As an initial matter, the Board must determine whether the Veteran's loss of taste and/or dry mouth is the result of the January 17, 2008, surgery. The medical evidence clearly establishes that the loss of taste is the result of the surgery. As to the dry mouth, however, the medical evidence does not clearly establish whether that symptom was the result of the January 2008 surgery, the prior surgeries, some combination of the surgeries, or another cause altogether. Of note, the Veteran and his attorney representative argued during his October 2015 RO hearing that medical professionals had stated that as the nerve controlling salivation was encased in the jawbone that was not involved the in the January 2008 surgery it did not make sense that it was a symptom likely associated with that surgery. The Veteran and his representative, as lay persons, are competent to relate medical information related to them and the Board accepts this evidence. Instead, during the October 2015 hearing the representative advanced the argument that the dry mouth was the result of a chronic disability characterized by multiple infections that had damaged the nerve causing salivation and possibly eroding the surrounding bone. In light of this evidence and argument, the Board will limit consideration under the provisions of section 1151 to the loss of taste. As to the issue of informed consent, the Veteran acknowledges that he was informed of the risk of a loss of taste due to the surgery. The Veteran contends that he was not informed as to the true nature of the surgery and associated risks until after his anesthesia had been administered and that he might not have consented to the surgery had he known the risks earlier. The Board notes that the Veteran signed the informed consent prior to being escorted into the operating room and that the general anesthetic was not administered until after he was situated in the operating room. The Veteran states that he was connected to an IV, but there is nothing to suggest that he had been administered any medication that would have impaired his ability to consent to the surgery. As such, the Board finds no basis to grant the Veteran's claim based on a lack of informed consent. As to whether the subsequent loss of taste was a reasonably foreseeable complication of the January 2008 surgery, such a risk was explicitly noted in the informed consent and the medical opinions of record confirm that this was a known risk of the surgery. The Veteran does not contend otherwise. There is no contention on the part of the Veteran or his attorney representative as to whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. During the October 2015 RO hearing, the Veteran's representative specifically noted that "there's really no proof" of negligence in this case. The claims file does not otherwise include any evidence or argument suggesting that the Veteran's loss of taste was 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 hospital care, medical or surgical treatment, or examination. The Board is sympathetic to the Veteran's frustration with his loss of taste and dry mouth and the fact that they manifested in proximity to the January 17, 2008, right postauricular tympanoplasty. The Board finds, however, that the preponderance of the probative evidence is against his contention that these disabilities were due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals, were not reasonably foreseeable risks of the surgery, or that he was not fully informed as to the nature of the surgery, potential risks, and alternatives. As such, the criteria for entitlement to compensation under 38 U.S.C.A. § 1151 have not been met. Accordingly, as the preponderance of the evidence is against the claim for benefits pursuant to 38 U.S.C.A. § 1151, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for loss of taste and dry mouth or "cotton mouth" as a result of a surgery performed at a VA medical facility in January 2008 is denied. REMAND The Board notes that the original adjudication of the Veteran's claim was for "Service connection for Residuals of surgery, loss of taste and cottonmouth" and not as a claim under the provisions under section 1151. The Veteran's December 2008 notice of disagreement stated, in relevant part, "He also states his 'cotton mouth and loss of taste' is chronic and is getting worse. He has had three surgeries on his ears over time." Subsequent to the notice of disagreement the December 2009 Statement of the Case (SOC) and subsequent RO and Board adjudications have listed the issue solely as a claim for benefits under section 1151. During an October 2015 RO hearing, the Veteran's attorney clarified that it was "more reasonable to characterize [the claimed disability] as a natural progression of this chronic systemic problem that's just been going on since 1971." Essentially, the Veteran and his attorney representative argued that the nerve causing the Veteran's loss of taste and cotton mouth symptoms (and possibly the surrounding bone) had been eroded away by chronic ear infections since 1971. Thus, the evidence indicates that a claim for entitlement to service connection on a direct basis was initially raised by the Veteran and that there is an outstanding notice of disagreement. As such, remand is required to afford the RO the opportunity to provide the Veteran with an SOC on the issue of entitlement to service connection for loss of taste and dry mouth or "cotton mouth." See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: Issue a Statement of the Case that addresses the Veteran's claim for entitlement to service connection for loss of taste and dry mouth or "cotton mouth." If, and only if, the Veteran perfects an appeal with respect to that claim, the AOJ should ensure that any indicated development is completed before the issue is certified for appellate consideration. 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 2014). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs