Citation Nr: 21026737 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-20 728 DATE: May 3, 2021 ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a defective dental bridge is denied. FINDING OF FACT A defective dental bridge was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. CONCLUSION OF LAW The criteria for Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a defective dental bridge have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to December 1983 and from August 1989 to March 1997. The Department of Veterans Affairs is grateful for her service. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the Board of Veterans' Appeals (Board) at a hearing conducted in April 2017. A transcript of the hearing is of record. The Board remanded the appealed claim for additional development in July 2017, and it now returns to the Board for further review. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a defective dental bridge As the Board noted in its July 2017 remand, the Veteran in testimony before the undersigned VLJ at her April 2017 hearing as well as in other submitted statements, had contended that she has experienced additional disability due to VA dental care, including an inability to close her mouth, tongue scarring, social embarrassment, involuntary drooling and spitting, gum disease, facial disfigurement, and loss of natural teeth, yet a medical professional had not addressed such questions of any such contended conditions being associated with VA care or failure of VA care. The Board then remanded the claim for a VA examination to address the likelihood that the Veteran had additional disability, including, particularly, a defective dental bridge, causally associated with VA care. The Board here concludes that the weight of the evidence is against the claim, as explained below. Under the applicable criteria, compensation under 38 U.S.C. § 1151 shall be awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him or her under any law administered by VA, and the proximate cause of the disability 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. To determine whether an additional disability was caused by medical treatment, VA compares a veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination, and that a veteran has an additional disability does not establish cause. A disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). The Veteran has reported a long list of perceived wrongs in support of her 38 U.S.C. § 1151 claim, though the claim purports to be about a dental bridge. The Board remanded the claim to obtain a medical opinion addressing questions of additional disability resulting from VA lack of care, negligence, lack of skill, error in judgement, or similar instance of fault on the part of the VA, or an event not reasonably foreseeable. The VA examiner in January 2021 carefully reviewed the record and observed that the bridge about which the Veteran was complaining was not done by VA or ordered by VA, but rather was done by a private provider and billed not through VA, and the Veteran herself performed some work on the bridge. Actions by the Veteran or by a private practitioner and not ordered by or otherwise a direct result of actions by VA (through an unbroken chain of causation) cannot be a basis for a 38 U.S.C. § 1151 claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of section 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Federal Circuit determined that even where benefits could not be granted under 38 U.S.C. § 1151(a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability." As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability." Ollis, 857 F.3d at 1346. In this case, however, the evidence does not support VA referral for private care, which resulted in a defective bridge and any associated harm. As the VA examiner also noted, the Veteran has complained about perceived harms from actions of VA dental personnel, whereas the weight of the evidence is against actual harms having been caused by VA action or inaction, as the examiner concluded. The January 2021 VA examiner's findings and rationale are as follows: I HAVE REVIEWED THE CONFLICTING MEDICAL EVIDENCE AND AM PROVIDING THE FOLLOWING OPINION: The Veteran did not have any additional disability or disabilities since March 2008 as a result of VA dental care, medical or surgical treatment, or examination to include abnormal symptoms from multiple dental bridge replacements, loss of natural teeth, periodontal gum disease, tongue scarring, acquired psychiatric disorder symptoms, facial deformity, or involuntary drooling and spitting. The Board of Veterans' Appeals court document dated July 25, 2017 was reviewed. [...] The Veteran contended that she experienced [a]n additional disability due to VA dental care, including an inability to close her mouth, tongue scarring, social embarrassment, involuntary drooling and spitting, gum disease, facial disfigurement, and loss of natural teeth. A dental clinical note dated 01/27/2014 documented the patient[']s complaint of tooth #3 having a []hole and packing food. The patient also complained of tooth #11 go[ld] crown having a small hole and tooth #22 also. It was explained to the patient [that] grinding on gold crown #11 [on] the small hole will [cause the hole] to get bigger. The patient was advised to leave the hole alone and adjust tooth #3. However, the provider did not see anything that needed to be adjusted. A dental clinical note dated 11/25/2014 document[s that] the patient complained of a sharp edge on bridge #5 and #4. Considerable space was noted under Pontic #5 and under the left margin of abutment crown #6[.] [I]t was explained to the patient that the bridge could be repaired to improve the feeling to the tongue and to fill in spaces. Patient was also informed of material [which] was tooth colored and tooth #5 and #6 were both gold. The spaces underneath were so pronounced whereas repair material would be visible. The patient agreed this procedure [...] was acceptable to her [and] the patient's signed her name as acknowledgment. An account history from the office of Dr. N Jeff Carden HI from 01/19/2016 to 04/28/2016 was included. The account history documented crown and bridge work including teeth numbers 4, 5, 6, 7, 8, 9, 11, 12, and 13. The tooth, nations [sic] included combinations of abutment and Pontic crowns for the bridgework. The final ending balance was $8,548.00. A handwritten note at the end of the account history stated, "VA didn't pay for 7 tooth bridge because through them playing back and forth changing paperwork from previous approval. Dr. Carden's 2nd approval wasn't received by VA, NOT PAID -- I certify this is a true statement. This is why I am stuck with a substandard bridge at the present." The hand[-]written statement was signed by [the Veteran]. [A] letter dated 7 October 2016 was written from [the Veteran] to Dr. Williamson. In the letter the Veteran wrote that Dr. Williamson did a wonderful job cementing her bridge which had fallen out. She wrote that it was obviously not in all the way from the 1st, but it fits so very well now until adjust through [sic] a couple of places off. The Veteran noted t[w]o slightly high spots that prevented her from closing her mouth correctly and [a] left top front tooth edge that was down further and sticking her lip. She said she did a walk[-]in the previous day on October 6, 2016 and the doctor's assistant mistakenly asked her to return on Monday as a walk-in. She agreed to comply and then realize[d] no one would be in the office on Monday [as] Monday was a holiday. Again at the bottom of the page[,] the Veteran left a handwritten note which is stated, "8 October 2016, Saturday - I was forced to practice Dentistry without a license. Filed 3 areas with sand paper, took 3 hours on and off to reduce high points so mouth would close correctly and bite would even out. In addition had to file small rise on 1st natural front tooth (L).["] The hand[-]written note was signed by [the Veteran]. A letter dated 8 March 2017 from [the Veteran] to Disable[d] American Veterans include[s] statements written by the Veteran discussing [purposefully being] injected with Novocain directly into her right bottom lip by Dr. James A[.] Tatum and discussing Dr. Tatum being paid in advance for a defective bridge with holes in November 2014. Another letter dated 24 April 2017 from [the Veteran] to James [A.] Tatum, DMD included a request from the Veteran for reimbursement for the amount overpaid for bridge where she felt she was overcharged for work completed by Dr. Tatum. Conclusion: Based on the information supplied by [the Veteran], the bridge the patient was complaining about not paid for by the VA. The bridge was fabricated by private practitioners in 2016 according to the account history from the office of Dr. N Jeff Carden. At some point the Veteran saw Dr. James A Tatum, was disappointed with the work, and demanded a partial refund. By her own admission throughout the medical record the Veteran admitted she changed providers on several occasions. She also state[d] she "practiced dentistry without a license" by filing her own re-cemented bridge for better comfort. There was no record of gum scarring, acquired psychiatric disorder, facial deformity, involuntary drooling/spitting or loss of natural teeth or periodontal disease caused by the bridge treatment. The only statements in the record were those supplied by the Veteran. There was not mention or diagnosis of claimed abnormal treatment by the treating professionals. Therefore, I opine that it is less likely than not (less than 50% probability), that the treatment for additional disabilities were caused by VA negligence. There is no evidence that the bridge treatment was caused by VA negligence. There [is] no evidence that additional disabilities resulted from lack of care, negligence or lack of skill of the VA personnel, error in judgement, or similar instances of fault on the part of the VA. The Board has carefully reviewed the long and complex record and concludes that the weight of competent and credible evidence is consistent with and supportive of the January 2021 VA examiner's findings and conclusions to the effect that the weight of the evidence was against additional disability resulting from VA lack of care, negligence, lack of skill, error in judgement, or similar instance of fault on the part of the VA, or an event not reasonably foreseeable. In short, the Veteran has alleged throughout the course of her claim on harms or perceived harms by VA, but the evidence simply does not support a harm associated with a dental bridge, defective or otherwise, which was paid for by VA or otherwise a part of VA care, VA referral for care, or VA failure to provide adequate care. The Board does not doubt the Veteran's belief that she suffered harm in some manner by VA dental care. However, the Veteran, as a layperson, is without the expertise needed to address such questions of medical causation or medical standards of care or effects of care, which are distinctly medical questions beyond lay competence. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Accordingly, the Board finds the weight of the evidence against the claim of entitlement to benefits on the basis of 38 U.S.C. § 1151. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.