Citation Nr: 21071766 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-51 345 DATE: December 1, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for loss of, or impairment to, sense of taste is denied. FINDING OF FACT The Veteran does not have loss of, or impairment to, sense of taste, resulting from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, nor was such disability proximately caused by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for loss of, or impairment to, sense of taste have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to September 1969. In August 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Entitlement to compensation under 38 U.S.C. § 1151 for loss of, or impairment to, sense of taste Legal Criteria Under applicable law, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358 (a). To be awarded compensation under section 1151, a veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. See also VAOPGCPREC 40-97, 63 Fed. Reg. 31,262 (1998). Regarding the first prong of the analysis, to determine whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the veteran's condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361 (b). Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361 (c)(1). Also, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361 (d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, 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 medical 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361 (d)(2). In order for additional disability to be compensable, it must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005). The additional disability must have been the result of injury flowing directly from the actual provision of care, treatment, or examination furnished by VA. Loving v. Nicholson, 19 Vet. App. at 101 (2005). The mere fact that a claimant is harmed by an event that occurs coincidentally with VA care, treatment, or an examination is not sufficient to establish causation. Mangham v. Shinseki, 23 Vet. App. 284, 287 (2009). The relevant issue is whether VA's direct actions caused harm. Id. at 289. Analysis The Veteran asserts that he has impairment to his sense of taste, as a result of his use of improperly prescribed medication. Specifically, he asserts that his VA treatment provider improperly prescribed Terbinafine by prescribing two 45-day regimens, without providing a 6-week break in between and, as a result, he developed loss of, or impairment to, his sense of taste. See August 2015 Notice of Disagreement. VA treatment records show in October 2008, the Veteran was prescribed Lamisil for 45 days to treat skin and nail fungus. On December 2, 2008, he was seen for follow-up and denied any complications with the medication. Records indicate his skin condition was improving. On December 18, 2008, he reported a ten-day onset of loss of taste (hypogeusia). Notes indicate he was hospitalized for renal failure. His most recent VA laboratory reports at that time did not show any renal failure or dysfunction. He did not report for a VA appointment in January 2009 at Columbus. He declined a foot examination in January 2009. He was seen in January 2009 for lab review and medication refills. This was a follow-up to his reported hospitalization from January 5, 2009 to January 8, 2009, for acute renal failure. He stopped taking the oral anti-fungal pill since hospital admission, but reported still having loss of taste for food or liquids. He was taking Ensure. Labs from January 15, 2009 showed kidney function had returned to normal. Another treatment note dated January 28, 2009 indicated he did not report for a 6-week follow-up skin appointment after the October 2008 visit. The VA records indicate he reported to the emergency room because of dizziness, a pulling sensation on his neck, and fatigue. Assessment was history of acute renal failure and adverse medication effect. It was noted he had a normal MRI of the brain at OSU in December 2008. In August 2009, he reported feeling good and that his sense of taste had improved, and that he returned to eating food for the past few months. February 2010 records indicate his taste was "much better". In March 2011, records indicate his lab reports were very good. A VA medical opinion was received in November 2019. The examiner opined that it is less likely than not that there was carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on VA's part by prescribing medication therapy with Terbinafine for two consecutive 6-week periods of time because the prescribing information for Terbinafine recommends a 12-week course for toenail onychomycosis. It does recommend monitoring liver function, sense of taste and/or smell, and recommends a complete blood count if being prescribed for more than 6 weeks consecutively. However, as documented in the office note dated December 18, 2008, while the Veteran reports onset of hypogeusia ten days earlier, he did not report any symptoms of dehydration, his physical exam was essentially normal, including no signs of dehydration, and the veteran was advised to follow-up. It was less than three weeks later that he developed his dehydration and acute renal failure, both of which resolved with rehydration and discontinuation of his Lamisil. The examiner also opined that it is less likely than not that loss of, or impairment to, sense of taste was an event not reasonably foreseeable in the course of treatment with Terbinafine; the type of risk that a reasonable healthcare provider would have disclosed in connection with informed consent procedures. The Veteran was seen on December 2, 2008, and did not report any problems. He was seen again on December 18, 2008, and was noted to have a 10-day history of loss of taste, attributable to his Terbinafine therapy. However, he did not report any other symptoms that can be ascribed to Terbinafine, and his physical examination was normal, with no evidence of any dehydration. The Veteran was also advised to follow-up, and additional workup was planned. Additionally, the examiner determined that there was no failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability or that the dehydration, which the Veteran experienced was allowed to continue or progress. The illness developed rather abruptly, due to poor oral intake over a short period of time, perhaps as short as one week. There is no documentation in the file of any repetitive office visits/contact with VA medical personnel to relate the onset of symptoms reported by the Veteran. Finally, the examiner concluded that it is less likely than not that the prescribing of Terbinafine for two consecutive 6-week periods resulted in the Veteran's loss of, or impairment to, sense of taste. The examiner noted that the prescribing instructions do not mandate a six-week period of rest between 6 week prescriptions. The instructions do indicate that loss of taste and weight loss are potential side effects. The Veteran reported onset of loss of taste at the time of his office visit with his private doctor in December 2018. However, the physical examination was normal, with mucous membranes described as "moist" and the heart with a regular rate and rhythm, ie, no signs of dehydration. Plans were stated to obtain an MRI and neurology consultation, and to see the Veteran in follow-up. In summary, although the medical evidence shows that the Veteran may have encountered some inability to taste food and liquids for a period of time after being prescribed medication, specifically Terbinafine, from the VA, there is no competent evidence to show that such disability is the result of carelessness, negligence, lack of proper skill or error in judgment on the part of VA; nor does the evidence show that the loss of, or impairment to, sense of taste was proximately caused by an event not reasonably foreseeable. In fact, impairment to taste is a known complication or side effect of such a medication. Thus, the statutory prerequisites for compensation under 38 U.S.C. § 1151 have not been met. Accordingly, the preponderance of the evidence is against the appellant's claim, and compensation for loss of, or impairment to, sense of taste, under 38 U.S.C. § 1151 is not warranted. The Veteran is competent, as a lay person, to report that as to which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that he asserts that he has current loss of, or impairment to, sense of taste as a result of VA treatment, the Board finds that he is not competent to link any current diagnoses to VA care under 38 U.S.C. § 1151. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation or the normal standard of care in these situations. Nothing in the record demonstrates that the Veteran has received any special training or acquired any medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. (Continued on the next page) As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.