Citation Nr: 21074835 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-25 432 DATE: December 16, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to VA care to the jaw causing left side facial paralysis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to December 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In September 2015, the Veteran sought treatment at the VA medical center (VAMC) for jaw pain. Her VA caregivers referred her to an outside (non-VA) oral surgeon for treatment. The Veteran testified that the oral surgeon told her that her problem could not be treated with surgery. Instead, he administered a series of injections to alleviate the pain. The Veteran testified that the pain instead increased. Moreover, she has developed additional problems such as difficulty chewing food and communicating. Medical records note lingual (tongue) and facial dyskinesia. The Veteran has filed a claim under 38 U.S.C. § 1151 asserting that negligence from VA care caused her current residuals. Initially, the Board notes the VAMC treatment records document that VA referred the Veteran to a non-VA oral surgeon, Dr. H. Levine. Although there are brief VAMC treatment notes by Dr. Levine, it is unclear to the Board whether VA has all of his treatment notes and records. Many of the notes by Dr. Levine refer to documents being scanned into a VA system, Vista Imaging, which is not accessible to the Board and may not have been accessible to the VA examiners. The first VA examiner in March 2018 noted the absence of these treatment records and could offer opinions based only upon the reviewable records. As these records appears to lie at the heart of her § 1151 claim, the Board has determined that Dr. Levine's records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Accordingly, on remand, if VA already has these records, they should be associated with the computerized system or systems accessible to the Board and VA examiners such as VBMS. In any event, to ensure that VA has all relevant records, upon remand the RO should obtain Dr. Levine's records including signed informed consents, test results, X-ray reports, etc. As noted, the March 2018 VA examiner reported the absence of the oral surgeon's records. The March 2020 VA examiner did not comment on whether he reviewed the oral surgeon's own records. In any event, the opinion only comments on whether it was negligent to perform the trigger point injection procedures in the first place but did not comment on whether the injections themselves were properly performed. In addition, the examiner attributed the Veteran's current problems to either Parkinson's disease or tardive dyskinesia. The record reflects and the Veteran testified that she does not have tardive dyskinesia. In addition, earlier medical records reflect a diagnosis of Parkinson's disease but as recently as March 2019, VA clinicians have questioned whether the Veteran has Parkinson's disease. Instead, they now have diagnosed essential tremors although they have not ruled out non-organic tremors as well as Parkinson's disease (the latter considered now "unlikely"). Therefore, the Board has determined that a new VA opinion should be obtained. The VA examiner should address whether the Veteran's current facial and tongue problems are the result of VA care and if so, whether the treatment was careless or negligent. The Board has also determined that a discussion as to the etiology of the Veteran's tremors and whether they are related to her facial and tongue symptoms would be helpful. The matters are REMANDED for the following action: 1. Copies of any VAMC records, especially for records of Dr. H. Levine, contained in the Vista Imaging system or any other systems not reviewable to the Board or VA examiners should downloaded into the VBMS system. 2. Ask the Veteran to submit or authorize VA to obtain the records of Dr. H. Levine, the non- VA oral surgeon who treated the Veteran. The request should also include any written informed consent that the Veteran would have signed, as well as any relevant treatment records, laboratory or test results, progress notes, nurses' notes, consultation reports, laboratory, radiological, and other diagnostic studies starting in December 2015 and continuing at least until June 2016 3. Ask the Veteran to identify all outstanding treatment records relevant to her 1151 claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 4. After records development is completed, schedule the Veteran for a VA examination. The VA examiner should review the file. The VA examiner is asked to provide an opinion addressing: A. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's facial paralysis, difficult chewing, pain, jaw and tongue dyskinesia, and communication problems were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in treating the Veteran, to include trigger point injections in late 2015 and into 2016; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? OR B. Whether it is at least as likely as not that any additional disability was proximately caused by an event NOT reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the disability or symptoms to be an ordinary risk of the treatment provided. To the extent the Veteran's disability symptoms resulted from treatment an outside care provider, the VA examiner is asked to provide an opinion whether the VA referral constituted, negligence or other fault of VA in making the referral or an event not reasonably foreseeable during the subsequent private treatment. In rendering opinions, the examiner should consider the March 2020 VA opinion, and clarify the etiology of the Veteran's tremors, i.e., whether she has Parkinson's disease, essential tremors, or non-organic tremors and address whether there is any relation to her current facial and tongue symptoms. Note: Proximate cause is shown if the additional disability is the result of VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. However, proximate cause is not shown if the additional disability is due to an event not reasonably foreseeable, i.e., an event that a reasonable health care provider would not have foreseen. If the examiner cannot provide an opinion without resort to speculation, it is essential that the examiner explain why an opinion cannot be provided (i.e., lack of records, limits of medical knowledge, etc.). The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.