Citation Nr: 20003801 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 16-15 208 DATE: January 15, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for numbness of the mouth is denied. FINDING OF FACT The Veteran’s numbness of the mouth was not caused by VA negligence and was reasonably foreseeable. CONCLUSION OF LAW Entitlement to compensation under 38 U.S.C. § 1151 for numbness of the mouth have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in May 2017 and July 2019 for further development in part to afford the Veteran a VA examination of his claimed disability. While the Agency of Original Jurisdiction (AOJ) scheduled the VA examination, the Veteran did not show up at the examinations or provide good cause for failing to appear. In the absence of good cause, the Veteran’s claims must be adjudicated based on the evidence of record. See 38 C.F.R. § 3.655. 1. Entitlement to compensation under 38 U.S.C. § 1151 for numbness of the mouth. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151 (2012). For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. 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 upon which the claim is based to the veteran’s condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA 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). The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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, and that (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, his representative’s, 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 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). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient 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 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 if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). To determine whether there was informed consent, VA will consider 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 orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. In addition, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2010). In this case, the Veteran seeks compensation under 38 U.S.C. § 1151 for numbness of the mouth. Specifically, the Veteran maintains that a VA doctor made a mistake when removing his wisdom teeth causing permanent numbness in his right lower jaw. See Form 9, March 2016. Service treatment records do not report a wisdom teeth removal procedure and are silent for any complaints or treatment for numbness of the mouth. The entrance and separation examinations are also silent for treatment or complaints of numbness of the mouth. The only evidence of the claimed disability during service is on the separation examination, which notes bleeding after teeth extraction in service. After service, medical treatment records note a medical consultation request for a tooth extraction in February 2012 as well as reports of dental pain in July 2014 and March 2015. In January 2019 a VA examiner reviewed the Veteran’s file and concluded that the Veteran does not have an additional disease or injury as a result of a wisdom teeth extraction procedure performed by the VA. The examiner stated that without a physical examination of the Veteran, she could not make further determinations about the Veteran’s condition. In August 2019, the examiner concluded that based on the available records the Veteran’s claimed condition was at least as likely as not incurred in or caused by the wisdom teeth extraction procedure performed by the VA. In making this conclusion, the examiner presumed that the Veteran did not experience numbness of the mouth prior to the wisdom teeth removal procedure. In October 2019, an addendum opinion was obtained because the Veteran did not attend his scheduled in-person VA examination. The examiner concluded that if the Veteran’s assertions as to the onset and continuation of his symptoms are true, then it is likely that they are a direct result of the wisdom teeth removal procedure. The examiner stated that the additional disease is the natural progression of the disease, and that the loss of sensation and numbness were not due to carelessness or negligence of the VA or to an event that was not reasonably unforeseeable as they are risks noted in the informed consent for wisdom teeth removal. Although the medical evidence shows that the Veteran has an additional disability, the Board finds that the weight of the evidence is against finding that the Veteran’s additional disability was proximately caused by 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 that the claimed disability was the result of an event that was not reasonably foreseeable because the Veteran’s condition is a known complication of wisdom teeth removal. The Board acknowledges that the October 2019 VA examiner’s opinion of what complications are listed in a wisdom teeth removal consent form was likely based on current medical procedure and the Veteran’s procedure took place over 40 years ago. However, the contemporaneous medical and lay evidence of record does not negate the examiner’s conclusion. Therefore, the evidence does not show that a reasonable health care provider would not have considered the additional disability to be an ordinary risk of the treatment provided. Further, though the Veteran is competent to provide lay testimony regarding the symptoms he has observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in a disability following his wisdom teeth removal procedure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Since there is no probative medical evidence that indicates the Veteran demonstrates an additional disability that was the result of carelessness, negligence, lack of proper skill, error in judgment, a similar instance of fault on the part of the VA, or an event not reasonably foreseeable, the claim for entitlement to compensation under 38 U.S.C. § 1151 for numbness of the mouth is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.