Citation Nr: 21022227 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-12 924 DATE: April 15, 2021 ORDER Entitlement to service connection for residuals of an injury to the upper lip are granted. REMANDED The claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a June 2012 left hip surgery is remanded. FINDING OF FACT The evidence demonstrates that the Veteran has residuals of an injury to the upper lip during service. CONCLUSION OF LAW The criteria for service connection for residuals of an injury to the upper lip are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1995 to November 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. Service Connection The Veteran fell and injured his mouth during service. He has been awarded service connection for damage from the fall to tooth #9. He asserts he should also be service connected for residuals associated with an injury to the upper lip from the fall. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence in this matter consists of the Veteran’s lay assertions, service treatment records (STRs), VA treatment records, and a VA compensation examination report dated in January 2008. For the following reasons, a service connection finding is warranted. First, the evidence demonstrates a current disorder in the upper lip. In the January 2008 VA report, the examiner noted a fibrotic area to the mucosa of the upper lip related to healing of an abrasion to the area. In assessing whether a current disorder exists, the Board also considers the Veteran’s lay assertions during the Board hearing in which he described regular swelling, pain, peeling of skin, and a knot-like protrusion in the area of the upper lip. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may be probative because laypersons are competent to describe observable symptomatology). Second, the evidence demonstrates that the Veteran injured his lip during service. Several STRs dated in September 1997 note a fall injury to the mouth and to tooth #9. The documents note an abrasion to the mucosa of the upper lip. Third, the evidence demonstrates a medical nexus between the current disorder and the in-service fall. In the only medical opinion of record addressing the claim, the January 2008 VA examiner connected the current lip problem to the in-service injury, stating that the fibrotic area of the upper lip was a consequence of the healing of the in-service injury. Based on the foregoing evidentiary background, the Board cannot find that a preponderance of the evidence is against the claim. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASON FOR REMAND The Veteran asserts that faulty VA care during left hip replacement surgery in June 2012 caused additional disability. This claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 must be remanded for additional medical inquiry. A January 2014 VA medical opinion addresses the Veteran’s claim. Since the opinion, additional lay and medical evidence has been added to the record. A full compensation examination should be conducted to assess the evidence and the claim. The matters are REMANDED for the following action: Schedule an examination to assess the Veteran’s claim. After reviewing the electronic claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions. (1). Is it at least as likely as not (i.e., probability of 50 percent or more) that the Veteran experienced residuals (i.e., additional disability) from June 2012 left hip replacement surgery by VA? In answering this question address whether, as a result of the surgical procedures, the Veteran has had at any time since May 2013 such disorders as deep vein thrombosis (DVT), pulmonary embolism, blood clotting, hematoma, a sciatic nerve disorder, or any other disability from the surgical treatment. See 38 C.F.R. § 3.361(b). (2). If so, is it at least as likely as that an additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA’s treatment? In other words, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? If you find no VA fault, explain in detail how it is that a disorder resulting from surgery, which may have caused the Veteran adverse symptoms, was not due to faulty treatment. In addressing (2), consider the lay statements in the electronic claims file from the Veteran (for example, in his October 2020 Board testimony), and from his wife dated in May 2013 and October 2020. They contend that the absence of a compression stocking on the left leg following surgery led to multiple problems. (3). If you find under (1) that an additional disability as likely as not resulted from the surgery; and you find under (2) that the additional disability is not due to faulty VA care: Is it at least as likely as not that the additional disability was not a reasonably foreseeable consequence of the surgical treatment? Or, is the additional disability (e.g., DVT, embolism, hematoma, sciatic nerve injury, blood clotting, or any other) an ordinary risk of, or a reasonably foreseeable consequence of, the type of surgical treatment performed on the Veteran in June 2012? If you find no additional disability since May 2013 under question (1), do not answer questions (2) and (3). If you find additional disability due to faulty VA care under question (2), do not answer question (3). Please explain in detail any opinion provided and the supporting rationale. In rendering the requested opinion, the examiner should note that the Veteran and other lay witnesses in this matter are competent to attest to matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and any other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.