Citation Nr: 22012801 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 14-20 624A DATE: March 7, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a nerve disability is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a jaw disability is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for head pain, to include migraine headaches, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability is remanded. FINDING OF FACT The Veteran's surgical treatment by Department of Veterans Affairs (VA) physicians did not result in an additional nerve or jaw disability. CONCLUSIONS OF LAW 1. The criteria for compensation for a nerve disability, pursuant to 38 U.S.C. § 1151, are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for compensation for a jaw disability, pursuant to 38 U.S.C. § 1151, are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1975 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran appeared at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In February 2018, the Veteran was informed that the VLJ who conducted the November 2017 hearing was no longer with the Board. The Veteran was offered a hearing with a VLJ who would decide his appeal, but the Veteran declined. The Board previously remanded the issues on appeal in April 2018 and July 2020 for further development. Regarding the claims for nerve and jaw disabilities, the Board finds that the RO has substantially complied with the Board's prior remand order as adequate VA opinions were obtained in September and October 2020; regarding the claims for head pain, to include migraine headaches, and right eye disability, the Board finds that another remand is required as the opinions obtained are inadequate for the reasons discussed below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). While on remand, the Veteran provided no indication that he desired another hearing. Additionally, the Veteran and his representative have had the opportunity to submit additional argument prior to the appeal's return to the Board, but have rested the appeal on the prior contentions of record. As such, the Board may proceed with adjudication of the claims on appeal. 38 U.S.C. § 1151 Eligibility A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(3). Moreover, additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. 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. 38 C.F.R. § 3.361(d)(1). Regarding reasonable foreseeability, whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be 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. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements as a veteran's disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). 1. Entitlement to compensation under 38 U.S.C. § 1151 for a nerve disability. The Veteran seeks compensation under 38 U.S.C. § 1151 for a nerve disability incurred as a result of a VA surgery for placement of a Bone Anchored Hearing Aid (BAHA) Implant in March 2011. Specifically, he claims that following the March 2011 surgery at Nashville VA Medical Center (VAMC) he experienced numbness and tenderness to the right side of his face. See Statement in Support of Claim (May 2012). As an initial matter, the Veteran has reported that "the Doctors did not explain that they would or might need to do any of the procedures they did." See Form 9 (August 2014). However, the Veteran also reported that the "surgen [sic] that preformed [sic] the surgery made me sign a form after he told me about all the possible problems that might result," see Statement In Support of Claim (June 2012), and that "[e]very one of them done told me that this was possible." See Hearing Transcript (November 2017). Notably, the complete consent form is associated with the claims file. See CAPRI (December 21, 2018). The Board finds that the Veteran's report regarding his lack of consent is not credible, as the Veteran's reports regarding his consent for the surgery have been internally inconsistent and externally inconsistent with the other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (the credibility of a witness can be impeached by a showing of inconsistent statements). Turning to the evidence prior to the March 2011 surgery, in December 2010, the Veteran reported that his sensation was greatly diminished, chronically, on the right side of his head. A February 2011 neurologic examination revealed grossly intact cranial nerves II through XII. The March 2011 operative report shows that there were no complications with the surgery. The day after the March 2011 surgery, the Veteran reported swelling but not numbness or loss of sensation. During a follow up appointment with the Chief of Otolaryngology approximately one month after the surgery, the Veteran reported no numbness or loss of sensation. In May 2011, the Veteran reported numbness at the surgical site. The attending Chief of Otolaryngology provided no diagnosis and assessed the Veteran as healing well. In August 2011, the Veteran reported numbness at the surgical site. The attending audiologist noted that it is not unusual for BAHA patients to report some numbness around the surgical site following the surgery, but provided no diagnosis and prescribed no treatment. In September 2011, the Chief of Otolaryngology examined the Veteran and noted that his cranial nerves II through XII were grossly intact and that the surgical site was well-healed. A July 2012 report of VA examination shows that the Veteran reported numbness on the right side of his face. The only neurologic finding was for headaches. The examiner opined that the Veteran's complaint was not related to his 2011 VA surgery as the implant is far away from the nerve that controls sensation to the face. VA treatment records from July 2016 show that the Veteran reported decreased sensation on the right side of his face. The attending doctor noted that cranial nerves II through XII were intact and provided no neurologic diagnosis. A September 2020 medical opinion shows that the clinician provided a lengthy recitation of the relevant evidence. The clinician noted an impression of possible auricular nerve trauma in April 1997 and an assessment of cranial nerves VII and VIII damage in March 1998; it was also noted that subsequent facial nerve testing was normal. The clinician opined that the Veteran did not have an additional nerve disability following his 2011 surgery. The clinician reasoned that the informed consent form discussed that an incision would be made through the skin behind the ear, but that the facial nerve is located in front of the ear. The clinician further reasoned that no evidence was found to confirm a diagnosis of cranial nerve damage. Although the clinician's wording in the final sentence suggests an additional disability, as it was stated that "IT IS LESS LIKELY THAN NOT THAT THE ADDITIONAL DISABILITY IS THE RESULT," the remainder of the opinion makes it clear that the Veteran has no additional nerve disability as a result of his March 2011 surgery. See C&P Exam (October 2020). In summary, the most probative evidence (including consideration of the lay statements) does not establish that any additional disability was caused by the VA surgical treatment. If the Board finds that there is no "actual causation," it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability). That is, because the evidence of record does not demonstrate additional disability caused by VA surgical treatment, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability. Mangham v. Shinseki, 23 Vet. App. 284, 287-88 (2009) (citing Loving v. Nicholson, 19 Vet. App. 96, 101 (2005)); see also 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board has considered the Veteran's statements, including his competent reports of observable symptomatology such as numbness on the right side of his face. However, the Veteran reported decreased facial sensation before and after his 2011 surgery, but has been unable to describe the severity of his reported reduced sensation and numbness before and after his 2011 surgery or articulate that his reduced sensation or numbness had increased in severity due to his 2011 surgery. Additionally, the first report of facial numbness following the March 2011 surgery was five months later in August 2011. Moreover, the record shows that the Veteran indicated that his reported numbness was in his ear, as he reported that he "had earaches and numbness including ear infections on the right side prior to the stud but, nothing compared to AFTER..." his March 2011 surgery. See CAPRI at 1507 (November 2018). Notably, the Veteran is service-connected for right ear cholesteatoma and vestibular disorder, which provide compensation for right ear pain and aches, dizziness, and staggering. Even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the July 2012 and September 2020 VA examiners' opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale based on such knowledge. The VA examiners reviewed the claims file and considered the Veteran's reported history and lay statements. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for compensation under 38 U.S.C. § 1151 for an additional nerve disability. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 2. Entitlement to compensation under 38 U.S.C. § 1151 for a jaw disability. The Veteran seeks compensation under 38 U.S.C. § 1151 for a nerve disability incurred as a result of a VA surgery for placement of a BAHA Implant in March 2011. Specifically, he claims that following the March 2011 surgery at Nashville VAMC he experienced jaw pain. See Statement in Support of Claim (May 2012). Prior to the March 2011 VA surgery, in June 2010, the Veteran reported significant pain on the right side of his face and jaw. In August 2010, the Veteran reported pain all over his body and joints, to include the right temporomandibular joint or jaw. The attending doctor assessed myofascial pain and possible somatization disorder; no jaw disability was assessed. The March 2011 operative report shows that there were no complications with the surgery. The day after the March 2011 VA surgery, the Veteran reported swelling but not pain. Approximately three weeks after surgery, the Veteran reported head pain radiating into his jaw and cheek. The attending doctor noted skin redness around the surgical site and scabbing. The doctor assessed no jaw disability and prescribed an ointment for scabbing. During a follow up appointment with the Chief of Otolaryngology approximately one month after the surgery, the Veteran reported no pain. A July 2012 report of VA examination shows that the examiner diagnosed no jaw disability and opined that jaw pain was not related to the Veteran's surgery. The examiner reasoned that, anatomically, this cannot happen as the placement of the titanium implant into the temporal bone does not enter the brain nor does it pass completely through the skull bone. A September 2020 medical opinion shows that the clinician provided a lengthy recitation of the relevant evidence. The clinician noted a history of jaw conditions prior to the 2011 VA surgery, to include bruxism in 1995 and a temporomandibular joint condition in 2009. The clinician opined that the Veteran did not have an additional jaw disability following his 2011 VA surgery. Additionally, the clinician opined that the Veteran's pre-2011 jaw disabilities were not worsened by the 2011 surgery. The clinician reasoned that there was "no evidence that additional disabilities resulted..." from the 2011 VA surgery. See C&P Exam (October 2020). Although the clinician's wording in the final sentence suggests an additional disability, as it was stated that the "jaw condition is less likely than not (less than 50 percent probability) the result..." of the 2011 VA surgery, the remainder of the opinion makes it clear that the Veteran has no additional jaw disability, nor a worsening of a prior jaw disability, as a result of his 2011 surgery. Id. In summary, the most probative evidence (including consideration of the lay statements) does not establish that any additional disability was caused by the VA surgical treatment. If the Board finds that there is no "actual causation," it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability). That is, because the evidence of record does not demonstrate additional disability caused by VA surgical treatment, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability. Mangham, 23 Vet. App. 287-88; see also 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board has considered the Veteran's statements, including his competent reports of observable symptomatology such as pain in his jaw. However, the Veteran reported jaw pain before and after his 2011 surgery, but has been unable to describe the severity of his reported pain before and after his 2011 surgery or articulate that his pain had increased in severity due to his 2011 surgery. Additionally, the Veteran's complaints have been indicated as due to myofascial pain or possible somatization disorder. Notably, the Veteran is service-connected for a temporomandibular (jaw) disorder. Even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the July 2012 and September 2020 VA examiners' opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale based on such knowledge. The VA examiners reviewed the claims file and considered the Veteran's reported history and lay statements. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for compensation under 38 U.S.C. § 1151 for an additional jaw disability. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 2021 U.S. App. LEXIS 37307. REASONS FOR REMAND Although the Board regrets additional delay, there has not been substantial compliance with all of the Board's previous remand directives and another remand is required. Stegall, 11 Vet. App. 271. 1. Entitlement to compensation under 38 U.S.C. § 1151 for head pain, to include migraine headaches. The Veteran seeks compensation under 38 U.S.C. § 1151 for head pain, to include migraine headaches, incurred as a result of a VA surgery for placement of a BAHA Implant in March 2011. Specifically, he claims that following the March 2011 surgery at Nashville VAMC he experienced migraines and temple pain. See Statement in Support of Claim (May 2012). A July 2012 report of VA examination shows that the examiner diagnosed hemicranial headaches with onset in 1982, and migraine headaches with onset in 2011. The examiner provided no opinion whether the Veteran's migraines are an additional disability due to his 2011 VA surgery. A September 2020 medical opinion shows that the clinician noted a history of headaches in 2009 and migraines in 2011. The clinician indicated that the Veteran had an additional migraine disability following his 2011 VA surgery, as it was opined that "IT IS LESS LIKLEY THAN NOT THAT THE VETERAN'S ADDITIONAL DISABILITY(IES) MIGRAINES IS CAUSED OR CHRONICALLY WORSENED AS A RESULT OF A VA SURGERY...." See C&P Exam (October 2020). The clinician reasoned that the causal etiology of migraines is usually unknown, and that there is no pathological link between a BAHA surgery and migraines. The Board finds that the opinions obtained are inadequate. First, the July 2012 examiner provided no etiology opinion. Second, the September 2020 opinion is supported by inadequate reasoning. The clinician indicated that the Veteran's migraines had their onset after the 2011 surgery, but did not discuss whether they were a coincidental occurrence or the natural progression of his prior hemicranial headaches. Additionally, the clinician noted that the etiology of migraines is usually unknown, but then provided no reasoning for how it was more likely than not that the Veteran's migraines were not caused or worsened by his 2011 surgery. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). 2. Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability. The Veteran seeks compensation under 38 U.S.C. § 1151 for a right eye disability incurred as a result of a VA surgery for placement of a BAHA Implant in March 2011. Specifically, he claims that following the March 2011 surgery at Nashville VAMC he experienced loss of use of his right eye. See Statement in Support of Claim (May 2012). A September 2020 medical opinion shows that the clinician noted complaints of eye pain with temporary vision loss between 2013 and 2015. The clinician opined that the Veteran did not have an additional right eye disability. The clinician reasoned that the Veteran's "visual disturbances appear to have been temporary." See C&P Exam (September 2020). The Board finds that the opinion obtained is inadequate. First, the clinician provided no discussion of the Veteran's right eye immediately before, and immediately after, his 2011 surgery. Second, the opinion indicates that the Veteran had impaired vision during the appeal period, which began on May 3, 2011, but that it resolved. Notably, federal statutes "allow payment for disability existing on and after the date of application." Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Third, the opinion provides no indication that the Veteran's complaints of impaired vision five months after his 2011 surgery, as well as in May and November 2016, were considered. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). Accordingly, the matters are REMANDED for the following action: 1. Pursuant to 38 U.S.C. § 5109(a), obtain an advisory medical opinion from an independent medical expert who is not a VA employee regarding the Veteran's claimed (1) head pain, to include migraine headaches, and (2) right eye disability. The expert is asked to review the entire claims file and address the following for each claimed disability: (a.) Does the Veteran have an "additional disability"? If yes, the additional disability should be clearly identified. If the Veteran incurred additional disability, is it more likely than not that the additional disability was the result of his willful misconduct? The term "additional disability" means any condition that did not exist immediately before the March 2011 BAHA surgery. The clinician must compare the Veteran's condition immediately before and after the March 2011 BAHA surgery and follow up treatment. If there is no "additional disability," then the clinician does not need to provide answers to the remaining questions, but must explain why the symptoms the Veteran contends constitute "additional disabilities" (right eye pain, blurred vision, head pain, to include migraine headaches) are not additional disabilities. (b.) If the Veteran has an additional disability, is it at least as likely as not (50 percent probability or greater) that the additional disability is related to, or caused by, the March 2011 BAHA surgery? (c.) If the answer to (b) is yes, is it at least as likely as not (50 percent probability or greater) that the proximate cause of such disability or disabilities was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? (d.) If the answer to (b) is yes, is it at least as likely as not (50 percent probability or greater) that the additional disability is a result of an event not reasonably foreseeable? In rendering the above requested opinions, the examiner should address the lay statements of record and, as appropriate, the July 2012 and September 2020 opinions. Specifically, the examiner should address whether the progression of the Veteran's hemicranial headaches to migraines was a coincidental occurrence or a natural progression. A complete rationale for any opinion offered should be provided. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Nykeia F. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.