Citation Nr: 21007848 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-18 247 DATE: February 10, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability due to a February 2004 dental procedure is denied. Entitlement to service connection for a right leg disorder, to include as secondary to a back condition is dismissed. Entitlement to service connection for a right foot disorder, to include as secondary to a back condition is dismissed. Entitlement to an increased rating of 20 percent, but no higher, for chronic prostatitis, prior to July 2, 2015 is granted. Entitlement to an increased rating of 40 percent, but no higher, for chronic prostatitis, beginning March 9, 2016 is granted. Entitlement to a rating higher than 40 percent for chronic prostatitis after March 9, 2016 is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against a finding that the Veteran has an additional disability due to a February 2004 dental procedure. 2. The grant of service connection for radiculopathy of the right lower extremity associated with degenerative arthritis of the spine in a November 2019 rating decision renders the claim of entitlement to service connection for a right leg disorder, to include as secondary to a back condition moot. 3. The grant of service connection for radiculopathy of the right lower extremity associated with degenerative arthritis of the spine in a November 2019 rating decision renders the claim of entitlement to service connection for a right foot disorder, to include as secondary to a back condition moot. 4. Prior to July 2, 2015, the Veteran’s chronic prostatitis manifested in daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. 5. Beginning March 9, 2016, the Veteran’s chronic prostatitis manifested in daytime voiding intervals between less than one hour, or; awakening to void five or more times per night. 6. After March 9, 2016, the Veteran’s chronic prostatitis did not manifest greater than daytime voiding intervals between less than one hour, or; awakening to void five or more times per night. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 due to an additional disability from a February 2004 dental procedure have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.361. 2. The claim of entitlement to service connection for a right leg disorder, to include as secondary to a back condition, is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The claim of entitlement to service connection for a right foot disorder, to include as secondary to a back condition, is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. Prior to July 2, 2015, the criteria for entitlement to an increased rating of 20 percent, but no higher, for chronic prostatitis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.115a, 4.115b, Diagnostic Code 7527. 5. Beginning March 9, 2016, the criteria for entitlement to an increased rating of 40 percent, but no higher, for chronic prostatitis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.115a, 4.115b, Diagnostic Code 7527. 6. After March 9, 2016, the criteria for entitlement to a rating higher than 40 percent for chronic prostatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to January 1965. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is available in the record. The VLJ who presided over that hearing is no longer with the Board. In an October 2017 letter, the Veteran was notified of that fact and informed of his right to have another hearing before a current member of the Board. The Veteran responded to that letter stating he did not wish to attend another hearing before a current member of the Board. This matter was previously remanded in July 2019 for further development, to include requesting the Agency of Original Jurisdiction (AOJ) to obtain additional VA examinations and VA opinions. The examinations and opinions were obtained; and therefore, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability due to a February 2004 dental procedure is denied. The Veteran seeks entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an additional disability, as a result of dental treatment that he received in February 2014. The Veteran reports that since the procedure performed by VA dental services in February 2014, he has experienced trouble chewing and pain with both partials which also cause him to bite his jaw and lips. See January 2017 Correspondence. VA law provides that when a veteran suffers additional disability 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 were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. A disability is a qualifying additional disability if (1) it was not the result of the Veteran’s willful misconduct, (2) it was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and (3) the proximate cause of the disability or death was: (a) 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 examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c). To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran’s informed consent. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.361 (c)(1), (d)(1). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See also 38 C.F.R. § 3.361 (d)(1). An event that is not reasonably foreseeable need not be completely unforeseeable or unimaginable but is rather 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 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 or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate 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 or surrogate 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 the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32 (c). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran was seen at a VA Medical Center on February 12, 2004. He presented to the appointment without pain, and for the extraction of several teeth in preparation for radiation treatment. The Veteran had a history of treatment for squamous cell carcinoma with radical neck dissection. Radiation therapy treatment was necessary. Teeth numbers: 2, 3, 4, 14, 18, 19, 20, 21, 23, 24, 25, 26, 29, 30, and 31 were planned for extraction along with 4 quadrants of alveoloplasty to contour the alveolar ridge prior to the radiation treatment. The teeth listed for extraction were said to have periodontal disease. On February 12, 2004, the extractions were completed along with 4 quadrants of alveoloplasty. Primary closure was achieved in all areas with a 3-0 silk suture. A booster dose of Amoxicillin was administered, and the Veteran was released into the care of his daughter. On March 15, 2004, the Veteran was approximately two weeks into radiation treatment when he noticed two hard areas in his mouth. He became concerned because he did not want to have problems wearing dentures later. An intraoral examination revealed no oral cancer, missing teeth, and areas on tooth #19 on the lower left side with two 1mm hard, immobile, non-tender bumps. A treatment plan was made to perform another alveoloplasty to smooth the areas and get a more favorable ridge for dentures before the Veteran was further into radiation treatment. An incision was made and the additional alveoloplasty was completed with coarse and medium bone files and sutured with 4-0 Vicryl. The Veteran had a follow up appointment on March 22, 2004. Swelling was noted in the lower left quadrant the day prior to the visit. There was no intraoral pain, discharge, or bleeding; no fever or malaise; and no extraoral pain. The Veteran stated he was eating well, doing oral stretches daily, and using fluoride daily. There were no other complaints. The intraoral sutures were still present on the lower left quadrant. Localized swelling was noted in the lower left buccal vestibule near tooth number 19 without discharge or bleeding but was tender to palpation. The diagnosis was lower left alveoloplasty was not healing within normal limits. Amoxicillin was administered and then a prescription was written for continued use for 7 days. A follow up in one week was recommended or sooner if necessary. The next follow up was completed on March 25, 2004. The Veteran had been taking the antibiotics as prescribed and his swelling had decreased. The lower left posterior still had sutures intact, and there was mild buccal swelling in the area, but no discharge, bleeding, or signs of mucositis or candida. The lower left alveoloplasty was said to be healing. The Veteran had been given a Therabite appliance for trismus but had not been using the appliance since he could open wider than the appliance at its widest setting. A VA medical opinion was obtained in January 2017. However as stated in the July 2019 Board remand, the opinion was found inadequate as the examiner failed to adequately provide supporting rationale. As such, the opinion is not probative and will not be given any weight. A VA medical opinion was obtained in March 2020. The VA examiner stated that based on a review of the Veteran’s records, there was no additional disability from the oral surgery performed on February 2004. The VA examiner indicated the Veteran had several teeth extracted and 4 quadrants of alveoloplasty. The teeth selected for extraction were said to have periodontal disease at the February 12, 2004 appointment. The lower left alveoloplasty was re-treated for better contour of the bone. Following the second alveoloplasty, swelling and slow healing were noted, so the Veteran was treated with antibiotics. Only a few days after the administration of the antibiotics, the lower left alveoloplasty was said to be healing. Therefore, the lower left alveoloplasty condition had been addressed and resolved. Thus, there was no additional disability caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing medical care, or the result of an event that was not reasonably foreseeable. The initial determination that the Veteran needed numerous extractions in February 2004 was not in error and there was no improper surgical care during the extractions and 4 quadrants of alveoloplasty surgery. The Board finds this opinion highly probative as it is based on a thorough review of the Veteran’s records including his lay statements and contentions. More importantly, there is no competent medical evidence to the contrary. Finally, while the Board has considered the Veteran’s lay assertions and his belief that he has an additional disability as a result of VA treatment, the specific question at issue here is a complex medical matter requiring specialized expertise that is beyond the powers of lay observation and nothing in the record suggests or alleges he possesses the requisite medical training, expertise, or credentials to meaningfully weigh in on it. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, his assertions are not probative and are outweighed by the March 2020 opinion of record from a qualified medical professional. There is no basis for an award of compensation under the provisions of 38 U.S.C. § 1151. Accordingly, the Board finds the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the appeal must be denied. Service Connection 2. Entitlement to service connection for a right leg disorder, to include as secondary to a back condition is dismissed. 3. Entitlement to service connection for a right foot disorder, to include as secondary to a back condition is dismissed. In a November 2019 rating decision, service connection was granted for radiculopathy of the right lower extremity associated with degenerative arthritis of the spine. The November 2019 rating decision constitutes a full grant of the benefits sought on appeal by the Veteran. Here, the Board notes that it may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In light of the full grant of benefits sought, there remains no allegation of error of fact or law for appellate consideration. Thus, as the Veteran has already received a full grant of benefits relative to his claim for service connection for a right leg and right foot disorder, to include as secondary to a back condition, there is no remaining issue for the Board to adjudicate. Accordingly, the Board does not have jurisdiction to review these claims and they must be dismissed. 38 U.S.C. § 7105 (d)(5); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy when an appeal has become moot). Increased Rating The Veteran’s chronic prostatitis is rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7527, for prostate gland injuries, infections, hypertrophy, or postoperative residuals. DC 7527 instructs to rate as voiding dysfunction or urinary tract infection, whichever is predominant. The criteria for voiding dysfunction and urinary tract infection are found in § 4.115a. In accordance with 38 C.F.R. § 4.115a, a 10 percent rating for urinary tract infection is warranted when the disability requires long-term drug therapy, one to two hospitalizations per year and/or requires intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal function due to urinary tract infection is to be rated as renal dysfunction. Also, under 38 C.F.R. § 4.115a, a voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. For urine leakage, a 20 percent rating for a voiding dysfunction is warranted when wearing absorbent materials which must be changed less than two times per day is required. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. Urinary frequency has ratings ranging from 10 to 40 percent. A 40 percent rating contemplates daytime voiding intervals of less than one hour, or; awakening to void five or more times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. A 10 percent rating contemplates daytime voiding intervals between two and three hours, or; awakening to void two times per night. Obstructed voiding has ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology, such as hesitancy, slow or weak stream, decreased force of stream, with any one or combination of the following: (1) post void residuals greater than 150 cc.; (2) uroflowmetry; markedly diminished peak flow rate, less than 10 cc/sec; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 4. Entitlement to an increased rating of 20 percent, but no higher, for chronic prostatitis, prior to July 2, 2015 is granted. The Veteran’s prostatitis is currently rated as 10 percent disabling prior to July 2, 2015. The Veteran underwent a VA examination in December 2011. The examiner indicated that the Veteran did not have a voiding dysfunction. The Veteran did have a history of recurrent symptomatic urinary tract or kidney infections; however, he did not receive treatment for these infections. The Veteran reported normal anatomy with no deformity or abnormality. A December 2011 VA treatment record noted the Veteran experiencing nocturia about one time a night. An April 2015 VA treatment record noted the Veteran experiencing episodic urinary incontinence. He reported he had to get up to urinate 2 to 3 times a night. He further reported his flow was good during the day but decreased at night. Based on the evidence of record during this period, the Board finds an increased rating of 20 percent, but no higher, is warranted. While the December 2011 VA examiner noted the Veteran had a urinary tract or kidney infection, the Veteran did not receive treatment for this condition. As such, a rating higher than 20 percent would not be applicable for the urinary tract infection or kidney infection. Therefore, his voiding dysfunction was considered the predominant disability. See 38 C.F.R. § 4.115b, DC 7527. Of the voiding dysfunction, the criteria relating to urinary frequency would provide for the highest evaluation. Specifically, the Board finds that the Veteran had nighttime voiding, at worst, 3 times per night, which corresponds to a 20 percent rating under those criteria. The Board has considered the Veteran’s contention through his representative that he should be awarded a 30 percent rating based on his urinary tract infections that require continuous intensive management. See June 2013 VA Form 9. However, the Veteran does not meet the criteria for a 30 percent rating due to urinary infections. A 30 percent rating requires recurrent symptomatic infection requiring drainage/ frequent hospitalizations (greater than two times/year), and/or requiring continuous intensive management. There is no evidence of record during this period that indicates the Veteran received any treatment, drainage, hospitalization, or continuous intensive management for his urinary/kidney infections. As such, a higher rating of 30 percent for urinary tract infections is not warranted. In addition, a higher 40 percent rating based on urinary frequency is not warranted because the evidence of record for this rating period does not show the Veteran experiencing nighttime voiding 5 or more times, or daytime voiding in intervals of less than one hour. Therefore, entitlement to an increased rating of 20 percent, but no higher, for prostatitis due to the April 3, 2015 VA treatment record is granted. 5. Entitlement to an increased rating of 40 percent, but no higher, for chronic prostatitis, beginning March 9, 2016 is granted. Prior to this decision, the Veteran’s prostatitis was rated as 20 percent disabling from July 2, 2015. As the Board has found entitlement to a 20 percent rating from April 3, 2015, the Board will now consider the evidence after this date for the rating period to determine if a higher rating is warranted. The Veteran underwent a VA examination in July 2015. The Veteran reported that for the past year, he had difficulty urinating, weak stream, and frequency. He had been taking medication without much relief. There was no renal dysfunction noted. The Veteran had a voiding dysfunction due to his enlarged prostate that caused urine leakage however the Veteran did not have to wear absorbent materials. The Veteran had daytime voiding between 1 to 2 hours and nighttime voiding between 3 to 4 times. The Veteran had hesitancy, slow stream, weak stream, and decreased force of stream. His physical examination was normal. A January 2016 VA treatment record notes the Veteran reported he gets up multiple times at night and tries to urinate, but nothing comes out. A March 9, 2016 VA treatment record noted the Veteran complaining of nocturia 4 to 5 times a night and urge incontinence. Based on the evidence of record during this rating period, the Board finds an increased rating of 40 percent, but no higher, is warranted. The voiding dysfunction was considered the predominant disability. See 38 C.F.R. § 4.115b, DC 7527. Of the voiding dysfunction, the criteria relating to urinary frequency would provide for the highest evaluation. Specifically, the Board finds that the Veteran had nighttime voiding, at worst, 5 times per night, which corresponds to a 40 percent rating under the criteria. Based on consideration of all evidence of record for this rating period, the Board has considered whether a higher rating of 60 percent is warranted. The Board finds that a 60 percent rating is not warranted during this period as the evidence does not show that the Veteran’s voiding dysfunction requires the use of an appliance or causes urine leakage that requires the use of absorbent material which must be changed more than 4 times per day. As such, entitlement to an increased rating of 40 percent, but no higher, for prostatitis based on the March 9, 2016 VA is granted. 6. Entitlement to a rating higher than 40 percent for chronic prostatitis after March 9, 2016 is denied. Prior to this decision, the Veteran’s prostatitis was rated as 40 percent disabling from November 5, 2019. As the Board has found the Veteran is entitled to a 40 percent rating from March 9, 2016, the Board will now consider the evidence after this date for the rating period to determine if a higher rating is warranted. The Veteran underwent a VA examination in October 2016. No renal dysfunction was noted. The examiner indicated the Veteran had a voiding dysfunction that caused urine leakage but did not require the wearing of absorbent material or the use of an appliance. The Veteran was noted to have daytime voiding in intervals between 1 to 2 hours and nighttime awakening to void 3 to 4 times. The Veteran had hesitancy, slow stream, weak stream, and decreased force of stream. A September 2017 correspondence from the Veteran through his representative noted the Veteran was awakening to void 5 or more times a night. A March 2019 VA treatment record noted the Veteran had experienced urinary incontinence in the past year and it lasted longer than a month. The Veteran underwent another VA examination in November 2019. No renal dysfunction was noted. The Veteran did have a voiding dysfunction, but it did not require the wearing of absorbent materials or using an appliance. The Veteran had daytime voiding intervals between 1 and 2 hours and nighttime awakening to void 5 or more times. The Veteran experienced hesitancy and weak stream and he reported normal anatomy with no penile deformity or abnormality. Based on the evidence of record during this period, the Board finds that a rating in excess of 40 percent is not warranted. The Board has considered the Veteran’s contention through his representative that he should be awarded a 60 percent rating based on voiding dysfunction that requires the wearing of absorbent materials that must be changed 2 to 4 times a day. See September 2017 Notice of Disagreement. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board affords more probative weight to the October 2016 and November 2019 VA examiners which indicated that while the Veteran does experience urine leakage, it does not require the wearing of absorbent materials or the use of an appliance. In addition, the VA treatment records and evidence of record for this rating period do not show that the Veteran’s urine leakage requires absorbent materials or the use of an appliance. As such, a higher rating of 60 percent is not warranted. Therefore, entitlement to a rating in excess of 40 percent for prostatitis after March 9, 2016 is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.