Citation Nr: 21061508 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-19 074 DATE: October 4, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for trigeminal neuralgia, claimed as nerve damage on the left side of face due to VA dental surgery, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1963 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in New York, New York. The Veteran testified at a virtual video conference hearing before the undersigned Veterans Law Judge of the Board in July 2021. A transcript of the hearing has been associated with the claims file. Entitlement to Compensation Under 38 U.S.C. § 1151 The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for trigeminal neuralgia claimed as nerve damage on the left side of the face due to VA dental surgery. Specifically, the Veteran testified at his July 2021 Board hearing that he does not remember filling out a consent form for the procedure, and the dental intern that treated him rushed the procedure that resulted in nerve damage. See Board hearing transcript, July 1, 2021. October and December 2004 VA treatment records show the Veteran underwent dental surgery and informed consent was obtained. However, the informed consent was not associated with the claims file. The Veteran was afforded VA examinations for dental conditions and cranial nerves in August 2016. At his August 2016 cranial nerve examination, the VA examiner opined that the Veteran's longstanding facial dysaesthesia dated back following a series of sequential dental procedures which resulted in the total removal of all teeth and replacement with upper and lower dentures. The examiner noted that there was no one single dental procedure that triggered the symptoms but possibly may have been a gradual escalation of the initial baseline symptoms as he continued to have additional dental procedures. Additionally, the examiner noted that the surgery may have furthermore uncovered a preexisting etiology that was triggered in association with, but not directly due to the surgical procedure. That is, the examiner noted the Veteran may have had an underlying predisposition for the development of the symptoms, which was hastened by the surgery, but that the broadest explanation of his symptoms is that the injury to the terminal branches of the trigeminal nerve within the jaw region is due to the surgery rather than actual trigeminal root pathology. Additionally, the examiner noted that, it could not be distinguished or be clear as to whether the Veteran had predisposition toward the development of the problem or if it was secondary to the surgical procedure. Therefore, the August 2016 cranial nerve VA examiner opined that it was equally likely that the facial pain is a primary result of injury to the peripheral nerves in the face versus damage to only the trigeminal nerve; the examiner noted the Veteran needed additional evaluation and opinion on the case by an oral surgeon. At his August 2016 dental and oral condition examination, the VA examiner opined that the Veteran's trigeminal neuralgia was caused by or became worse as the result of the VA treatment at issue. In this regard, the examiner noted the Veteran did not have a problem prior to surgery in that area, and has presented with consistent signs and symptoms thereafter. Therefore, it was anatomically reasonable with the infraorbital nerve near the surgical field. However, the examiner found that the disability did not result in the carelessness, negligence, lack of skill on part of VA personnel because it was a possible complication due to the anatomic variation of the nerve, and could not be reasonably predicted or prevented. Additionally, the examiner opined that the disability did not result from an event that could have been reasonably foreseen because it was a possible complication due to the anatomic variation of the nerve, and could not be reasonably predicted or prevented. Finally, the examiner opined that the disability did not result as a failure on part of the VA to timely diagnose and/or treat allow the disability to progress because the surgery was conducted on December 23, 2004, and the Veteran did not seek care until May 8, 2006. Thereafter, the Veteran was diagnosed and treated based on his signs and symptoms. In an August 2016 VA addendum opinion, the examiner opined that facial pain is a direct primary result of injury to the peripheral nerve in the face, and damage to the infraorbital nerve; this occurred coincident following the surgery to the mouth involving dental extraction surgery. In a March 2018 VA addendum opinion, the examiner opined that the nerve damage is a possible complication listed on the consent form signed by the patient and provider. Therefore, he opined that the disability did not result from an event that could have been reasonable foreseen. In this regard, the examiner opined that an event is not reasonably foreseeable if it is not one of the risks that is or would be disclosed as a part of informed consent procedures. The Board finds that the August 2016 VA opinions and March 2018 VA addendum opinion are incomplete to decide the claim. In this regard, the August 2016 cranial nerve examination opinion did not address the appropriate legal criteria as to the Veteran's claim for compensation under 38 U.S.C. § 1151, and the examiner resorted to mere speculation when rendering the opinion. Specifically, the examiner opined that it could not be determined whether the surgery or the Veteran's predisposition resulted in the trigeminal neuralgia and did not opine as to the standards of criteria for entitlement to compensation under 38 U.S.C. § 1151, such as whether a disability resulted in the carelessness, negligence, lack of skill on part of VA personnel; or was reasonably foreseeable; or was as a failure on part of the VA to timely diagnose and/or treat allow the disability to progress. The Board finds that the August 2016 VA dental and oral condition examination opinion is incomplete as the examiner did not provide supporting rationale for the conclusions reached nor did he address the lay statements and contentions of the Veteran regarding subsequent complaints of, and treatment for trigeminal neuralgia. Namely, the Veteran testified at his July 2021 Board hearing that he was not adequately treated for many years, although he complained of symptoms following the surgery. Finally, the Board finds the March 2018 VA addendum opinion incomplete to decide the claim because it did not address the appropriate legal criteria as to the Veteran's claim for compensation under 38 U.S.C. § 1151, and relied solely on the informed consent executed by the Veteran that is not currently associated with the claims file. Based on the foregoing, the Board finds that a remand is necessary to obtain, and associate with the claims file, any and all consent forms presented to and executed by the Veteran with respect to his dental procedure in 2004, and to afford the Veteran additional VA examination to obtain adequate opinions as to his claim for entitlement to compensation under 38 U.S.C. § 1151 for trigeminal neuralgia as due to VA dental surgery. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain and associate with the claims file any and all consent forms presented to, and executed by, the Veteran with respect to his 2004 dental surgery and/or surgeries performed by VA. 3. Then, obtain a medical opinion addressing the Veteran's contention that his dental surgery or surgeries resulted in trigeminal neuralgia, and that his trigeminal neuralgia was not adequately diagnosed or treated subsequently. Further physical examination is left to the discretion of the examiner. After reviewing the claims file, please answer the following questions: (A) Did the Veteran experience any additional disability caused by VA dental surgery or surgeries occurring in 2004? In answering this question, the examiner should specifically consider his dental surgeries and removal of teeth and denture placements. The examiner should also consider the Veteran's medical history showing diagnoses of, complaints of, and treatment for any condition that may have predisposed the Veteran for trigeminal neuralgia. The examiner is reminded that, to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the medical care or treatment in question to the veteran's condition after such care has stopped. (B) If it is found that additional disability was caused by the VA dental surgery or surgeries in 2004, the examiner should opine as whether any such 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 therapy in question. When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (C) If it is found that additional disability was caused by the VA dental surgery or surgeries in 2004, the examiner should also provide an opinion as to whether any identified additional disability was an event that was reasonably foreseeable or an event not reasonably foreseeable, to include consideration of the Veteran's contention that his pain and trigeminal neuralgia symptoms began immediately following such procedure(s). That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? (D) If it is found that additional disability was caused by the VA dental surgery or surgeries in 2004, the examiner should also provide an opinion as to whether any identified additional disability was aggravated due to the failure on the part of VA to timely diagnose and/or treat and allow the disability to progress. The examiner should be sure to consider the Veteran's statements that he complained of pain immediately following the procedure(s), and was not diagnosed nor treated until May of 2006. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge should explain why this is so. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, Counsel 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.