Citation Nr: 1819149 Decision Date: 03/28/18 Archive Date: 04/05/18 DOCKET NO. 12-10 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C. § 1151, for additional disability resulting from a June 25, 1990 dental extraction of wisdom teeth performed at Allen Park, Michigan VA Medical Center (VAMC). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1987 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In May 2014, November 2016, and September 2017, the Board remanded this matter for further development, specifically to obtain an addendum opinion regarding the Veteran's claim. That development having been completed, this matter has returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran does not have an additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the dental extraction surgery on June 25, 1990 at the Alan Park, MI VAMC, and does not have an additional disability proximately caused by an event not reasonably foreseeable as a result of this procedure. 2. The dental extraction surgery, performed on June 25, 1990 at the Alan Park VAMC was performed with the Veteran's informed consent. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional disability, claimed as numbness and/or paresthesia, stemming from June 25, 1990 dental extraction surgery are not satisfied. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran seeks entitlement to service connection under 38 U.S.C. § 1151 for additional disability, to include numbness of the left front gums and teeth, claimed to result from a dental extraction surgery performed at the Alan Park VAMC on June 25, 1990. For the following reasons and bases, the Board finds that service connection under § 1151 is not established. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA medical treatment 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 does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment 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). 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. 38 C.F.R. § 3.361(d). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the veteran or, in appropriate cases, the informed consent of his or her representative. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. 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, which are discussed below. 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. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. Compensation under § 1151 can also be established if additional disability was incurred, in pertinent part, due to VA care furnished without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). VA regulation defines informed consent as follows: 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). 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. 38 C.F.R. § 3.361(d)(1). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). On June 25, 1990, a dental extraction surgery was performed to remove the Veteran's wisdom teeth. A report of the surgery is of record, and informed consent was received prior to surgery. The consent form for the June 1990 wisdom teeth extraction surgery signed by the Veteran is of record. The form states that the known risks and side effects of the procedure includes "pain, swelling, infection of soft tissue and bone, dry socket, bleeding, numbness - permanent or partial of lower lip and tongue." The form also notifies the Veteran of alternatives to treatment, including the option to decline treatment. The form additionally reflects that by signing the form, the Veteran attests to the fact that someone explained the procedure and what it is for; that someone explained how it could help him and that things could go wrong; that someone told him about other treatments or procedures that might be done instead, and what would happen if he had no treatment or procedure; that someone answered all his questions; that he may refuse or change his mind about having the procedure; that he had been offered the opportunity to read the consent form; and that he chose to have the procedure. On July 3, 1990, the Veteran was seen at a follow up appointment to the June 25, 1990 dental extraction. The Veteran did not report any complaints at that time. At the March 2014 Board hearing, the Veteran testified that he first noticed his gums and teeth were numb a few months after the June 1990 dental extraction surgery. See March 2014 Hearing Transcript. Following the Board's September 2017 remand, an October 2017 supplemental opinion was obtained. The examiner concluded that in the event the June 25, 1990 did cause the Veteran's paresthesia, the paresthesia was not caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. See October 2017 Medical Opinion. The examiner further opined that paresthesia was reasonably foreseeable as a known risk of the surgery. The examiner reasoned that the consent form listed numbness as a possible complication to the procedure. Assuming, without deciding, that the Veteran's paresthesia did result from the June 1990 wisdom tooth extraction surgery, the evidence shows that it was not caused by VA fault or by an event that was not reasonably foreseeable. The October 2017 VA examiner concluded that the Veteran's paresthesia did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Additionally, the October 2017 opinion shows that the Veteran does not have additional disability due to an event not reasonably foreseeable as a result of that surgery. In this regard, the surgeon noted that numbness is a possible complication of a wisdom teeth extraction surgery. The informed consent form also reflects that numbness is a possible side effect or risk of the surgery. As the VA examiners' opinion is supported by a thorough explanation based on detailed review of the Veteran's medical history, it carries a lot of weight in the Board's determination. The Veteran has not submitted any competent or probative evidence supporting any fault or deficiency on the part of VA with regard to the June 1990 dental extraction surgery, or in support of an outcome not reasonably foreseeable. No medical professional has indicated that there was any deficiency or fault in the manner in which the June 1990 dental extraction surgery was performed or that the surgery was ill-advised. The Veteran is not shown to have a medical background or appropriate medical expertise in the relevant area, and thus is considered a lay person in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. See Jandreau, 492 F. at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The determination in this case is medically complex: whether the dental extraction surgery was below the standard of care, or whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the manner in which the procedure was performed or in the fact that it was performed in the first place, or whether the Veteran has additional disability due to an event not reasonably foreseeable as a result of such surgery, is a determination that is too complex to be made based on lay observation alone. Therefore, competent medical evidence is required. See Jandreau 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Accordingly, the Veteran's unsupported opinion that he has additional disability, to include paresthesia caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the June 1990 dental extraction surgery or the manner in which it was performed, or due to an event not reasonably foreseeable as a result of such surgery, is not competent evidence due to the medical complexity of the issue. Therefore, his opinion lacks probative value. See Layno, 6 Vet. App. at 470-71 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In the alternative, irrespective of whether the Veteran's opinion constitutes competent evidence, it is outweighed by VA examiner's opinion, who has medical expertise and who provided explanations based on the Veteran's medical history and a review of the surgery report and other treatment records for the conclusions reached. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may properly find that a medical expert's opinion has more probative than that of a lay person on medical issues); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). With regard to the issue of informed consent, the October 2017 opinion confirms that the June 1990 surgical procedure was performed as described in the consent form signed by the Veteran. The signed consent form complies with the requirements of 38 C.F.R. § 17.32(c), and there is no evidence suggesting otherwise. Accordingly, the Board finds that the criteria for compensation under 38 U.S.C. § 1151 are not satisfied. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Board sincerely empathizes with the difficulties related by the Veteran. The legal criteria for entitlement to compensation under § 1151 however are not satisfied. In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to compensation under § 1151 for additional disability to include paresthesia claimed to result from the dental extraction surgery performed at the Alan Park VAMC on June 25, 1990 is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection under 38 U.S.C.A. § 1151 for additional disability claimed to result from a June 25, 1990 surgery for dental extraction is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs