Citation Nr: 21006132 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-31 300 DATE: February 3, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for dental injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1964 to June 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the Board in April 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to compensation under 38 U.S.C. § 1151 for dental injury is remanded. The Veteran has filed a claim under 38 U.S.C.§ 1151 alleging that he suffered additional disability as a result of surgery performed at the University of North Carolina (UNC) School of Dentistry in 2010, under supervision of staff from the Durham VA Medical Center (VAMC). The Veteran contends that the left side of his nose and lip are permanently numb as a result of the procedure. As noted above, this case was remanded in April 2018. The case was remanded to determine the identity and affiliation of the care providers who took part in the Veteran’s dental procedure at the UNC School of Dentistry. Following additional development, the AOJ indicated in the October 2020 supplemental statement of the case that it received inconclusive evidence from the Durham VA Medical Center (VAMC) regarding the Board’s directives. The AOJ noted that they obtained UNC treatment records and VAMC treatment records. However, those records do not indicate whether any VA employees were acting within the scope of VA employment. The AOJ concluded that the procedure was authorized on a fee basis by the VAMC; as such, it was a VAMC procedure. However, 38 U.S.C. § 1151 requires that the disability in question be caused by hospital care, medical or surgical treatment, or examination “either by a [VA] employee or in a [VA] facility . . . .” Under 38 C.F.R. § 3.361(f), activities that are not hospital care, medical or surgical treatment, or examination by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. In light of the regulatory definitions, the AOJ’s conclusion that the fee-basis surgery at the UNC School of Dentistry was a VAMC procedure is erroneous. Therefore, further development is necessary to conclusively determine whether any of the providers who performed the dental procedure at UNC School of Dentistry were acting in their capacity as a VA employee. Also, in Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit addressed the application of § 1151 to referral situations when the disability-causing event occurred during a medical procedure not performed by a VA employee or in a VA facility. The Federal Circuit determined that benefits could be granted on a negligence theory under 38 U.S.C. § 1151(a)(1)(A) if VA care providers were negligent in recommending the procedure to the Veteran. The Federal Circuit further determined that benefits could be granted under a referral theory pursuant to § 1151(a)(1)(B) as an event not reasonably foreseeable. On remand, the AOJ should also attempt to obtain the full informed consent forms for the Veteran’s October 2010 surgery. This matter is REMANDED for the following action: 1. Again contact the Durham VAMC for purposes of ascertaining whether any of the care providers involved in the Veteran’s October 2010 dental procedure at UNC School of Dentistry were VA employees operating within the scope of their VA employment; specifically, addressing the role Dr. Wayne King, Dr. Duggan, and/or Dr. James W. King may have played in the procedure. The VAMC should be asked to contact the care providers directly to obtain clarification of the matter, if necessary. All findings should be assembled and associated with the claims file. 2. After the foregoing development has been completed to the extent possible, arrange to have an appropriate clinician review the record and offer an opinion as to each of the following questions: (a.) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s nose and lip paresthesia and numbness was proximately caused by the October 2010 dental surgery? (b.) If the answer to (a) is affirmative, was the additional disability due to an event not reasonably foreseeable, or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of a VA care provider in furnishing the surgical treatment; or due to failure to exercise the degree of care that would be expected of a reasonable health care provider? (c.) Does it appear from the available information that VA recommended that the Veteran undergo the dental surgery at issue? (d.) If so, were the Veteran’s VA care providers negligent in recommending the dental surgery? A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An   appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.