Citation Nr: 0005860 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-21 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to Department of Veterans Affairs (VA) disability compensation for facial deformities under the provisions of 38 C.F.R. § 1151 (West 1991 & Supp. 1999). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from December 1960 to November 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 1998 decision by the VA Regional Office (RO) in Providence, Rhode Island. The veteran appeared for a personal hearing before the RO in January 1999, and appeared for a hearing before the undersigned Member of the Board in August 1999. Transcripts of those hearings are of record. FINDING OF FACT There is no competent evidence of record to demonstrate that the veteran experienced facial deformities as the result of VA medical treatment or any delay by VA in providing medical treatment. CONCLUSION OF LAW The veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 (amended in 1996) for facial deformities as the result of VA medical treatment, or any delay by VA in providing medical treatment, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Background. The veteran contends that he has experienced permanent facial disfigurement as a result of a lack of timely treatment at the VAMC. Specifically, he alleges that VA medical personnel proximately caused his facial deformities through delay of facial surgery due to postponements, rescheduling, misplacement of X-rays and CT scans. As a result, the veteran alleges, he currently suffers from facial deformities that warrant entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). On August 8, 1994, the veteran was involved in a motorcycle accident in which he sustained facial injuries including fractures and lacerations. On the day of the accident, the veteran was initially treated in a private hospital's emergency room. Emergency room physicians noted periorbital swelling and ecchymosis of the right eye, a three centimeter laceration above the right eye, and multiple abrasions. Computed tomography (CT) scans revealed soft tissue swelling overlying the right orbit and right frontal bone. Irregularity of the right lateral orbital walls on the bone windows was noted, and a question of orbital wall fracture was raised. Also noted were air fluid levels in the sphenoid sinuses which raised the possibility of facial fractures. The record reflects that the veteran returned to the private hospital four days after emergency room treatment to have the sutures removed. The record reflects that the veteran was unhappy with the treatment he received at the private hospital, and subsequently he sought treatment at the VA Medical Center (VAMC) in Provincetown, Rhode Island, on August 26, 1994. He presented to the VAMC with complaints of intermittent diplopia and numbness of his gums on the right side. Diagnosis after examination was status post blunt trauma, with multiple roof, floor, and lateral wall orbital fractures of the right eye. Minimal diplopia was noted only on the left gaze. No enophthalmos or ocular trauma was found. Numbness was noted as secondary to the floor fracture. A VA physician noted that surgery was not indicated at that time, but ordered follow-up examination as needed as the swelling subsided. The veteran presented for surgical evaluation at the VAMC in February 1995, complaining of blurry vision in the right eye, zygomatic depression, cheek bone depression and orbital rim fractures. Physical examination revealed upper and lower eyelid redundancy and very mild malar flattening. Assessment and plan was for correction of the malar fracture. The examining VA physician noted that the veteran expressed an interest in a cheek implant and an upper and lower blepharoplasty. A VAMC progress report dated in March 1995 shows that the veteran presented for additional consideration of surgical correction of his facial fractures. The VA physician noted that the veteran was to follow up with the plastic surgery department regarding a cheek implant. It was also noted that upper and lower blepharoplasty could be performed simultaneously in order to avoid two separate procedures. In January 1996, the veteran presented to the VAMC for preoperative discussion with a VA plastic surgeon. Consideration was given to whether a brow lift, blepharoplasty, or insertion of malar implants should be performed. Consensus was that the veteran's right brow dermatochalasis would be best served by limited right brow lift and eyelid blepharoplasty. Following that, the surgeon noted, consideration would be give to malar implants and/or bony remodeling rhinoplasty. Finally, it was noted that the options, risks, and benefits were discussed at length with the veteran, who understood his options and wished to proceed. On January 22, 1996, the veteran presented to the VAMC and underwent a right limited brow lift, right superior blepharoplasty, and right lateral canthopexy. A review of the surgical record reveals that the surgery was uneventful. A VA surgical report dated April 15, 1996, reflects that the veteran presented with continued dermatochalasis in the right lower eyelid and also on the left. An elevated dorsal bump, an overhanging nasal tip, and widened nasal aperture were also noted. The veteran requested that those deformities be corrected, and a septorhinoplasty was performed on that day. Other procedures performed simultaneously included blepharoplasty bilaterally of the lower eyelids; excision of two inclusion cysts on the right forehead; and excision and revision of a scalp scar on the right side. It was noted that the veteran tolerated the procedure well. In December 1997, the VA surgeon performing the veteran's January 1996 and April 1996 surgeries submitted a report in response to the RO's request that VA provide a medical review and opinion pertaining to the veteran's claim. The VA surgeon reported that he had reexamined the veteran in November 1997, and that the veteran had requested additional surgery in an attempt to improve the appearance of his upper face relative to his facial fractures. Examination revealed marked improvement in the veteran's appearance through the previous surgeries. The veteran had continued complaints, however, of lack of contour in the right zygomatic area. He also complained of having less fullness of the lateral hairline relative to the left temporal hairline, and he reiterated his belief that his eyebrows remained asymmetrical. The surgeon stated that the veteran's previous injuries, including the laceration over his right eye, would account for some potential relative weakness of the frontalis musculature in that area, and that "this overall is only minimally apparent." He also opined that the contour in the malar area was also "minimally apparent" but might benefit from slight augmentation (a three to five millimeter correction) of the malar complex by way of a malar implant. The surgeon explained the risk and benefits of the procedures to the veteran, who claimed to understand them well. Regarding the veteran's complaint about his frontotemporal hairline, the physician opined that it was insignificant and "not apparent to even my eye." In specific response to the RO's request for an opinion as to whether the initial treatment of the facial fractures, or a delay in surgery, led to the veteran's claimed facial deformity, the physician stated: I cannot identify any functional abnormality as visual field exams and extra ocular muscle function remain within normal limits. [The veteran's] aesthetic concerns are difficult to validate. There are minor incongruities which may be apparent to the trained observer but nevertheless are minor and have been improved considerably to date. His evaluations by ophthalmology were timely and complete with minimally displaced fractures identified. The contour irregularities that ensued could not be anticipated with certainty. There are also questions of pre-existing injury and post-injury non-compliance. The physician concluded his report by saying "I believe that the trauma itself and not lack of appropriate care was primarily responsible for any perceived eventual facial incongruities." A VA surgery report dated in December 1997 reflects that the veteran presented to the VAMC with flattening of the right malar complex and significant asymmetry. In addition, it was noted that the veteran had a six centimeter right temporal scar that caused alopecia in that area. The veteran requested that the scar be excised. Surgery at that time included the insertion of a malar implant on the right side to achieve symmetry and correct the malar complex deformity. Excision of the alopecia scar was also performed. The veteran tolerated the procedure without complication. By a January 1998 rating decision, the RO denied the veteran's claim, holding that the evidence of record established that the trauma the veteran experienced from the motorcycle accident, and not lack of appropriate care by VA, was primarily responsible for any perceived facial deformities. In the substantive appeal (VA Form 9), the veteran reiterated his complaint that VA had delayed surgeries surgical procedures. He stated that the malar implant was not inserted until more than two years after the initial trauma, and then only after he "insisted." He also expressed that a "right side face lift was never completed," leaving a scar and a "permanent droop" on the right side of his face. The veteran also reported that many of the delays were due to a physician who went on sick leave after placing CT scans and X-rays in the trunk of her car. He alleged that surgical procedures had been delayed eight times, once after a surgeon "called in sick" while the veteran was being prepped for surgery. At the January 1999 hearing before the RO, the veteran testified in detail regarding the surgical delays he experienced. He stated that his facial injuries sometimes cause headaches and an "arthritic ache," but noted that "I can't blame [VA] for that, I blame the motorcycle accident for that. I just blame [VA] for the deformity." He denied that the alleged deformities effected his social life. At the conclusion of the hearing, the veteran's representative stated that service connection should be granted under 38 U.S.C.A. § 1151 because VA did not provide the appropriate treatment prior to the healing of the facial fractures. The veteran's representative also expressed that the RO's January 1998 decision gave undue recognition of the medical opinions generated by the VA surgeon who oversaw the facial surgeries. The service representative claimed that the VA surgeon could not provide a fair and impartial review of the medical evidence, and requested an opinion by a different examiner. In response to the request by veteran's representative, a medical opinion was obtained from the Chief of Surgical Service at the Providence VAMC in June 1999. The claims file, which included photographs of the veteran taken immediately after the motorcycle accident, was available for review. The VA physician noted that he did not have the opportunity to personally examine the veteran. After reviewing the medical evidence, the physician stated, in part: [T]he record indicates to me that the [veteran] had a normal course with the type of result one would expect from the injury he sustained. There is no indication that the outcome would have been any different if the [patient] had had his procedure done any more rapidly. The patient began by not following up his treatment at the [private hospital] where he was [originally] seen. He arrived at the [VAMC] and was treated appropriately. The veteran's representative filed a statement in July 1999, alleging that the June 1999 opinion provided by the VA Chief of Surgical Service was inadequate inasmuch as the physician had not conducted a personal physical examination of the veteran. In November 1999, the veteran presented for physical examination by L. Edstrom, M.D., who is Chairman, Division of Plastic Surgery at Brown University. The veteran's claims file, including the photographs taken immediately after the veteran's motorcycle accident, were available for his review. Photographs showing the veteran's face from different perspectives, taken on the same day as Dr. Edstrom's examination, were also associated with the claims file. The veteran complained that he felt his right eyebrow was still too low; he felt the scar revision on the right temple was inadequate; and he did not like the feel of the malar implant. The veteran did not complain of any function problems, including diplopia, epiphora, headaches, or other cosmetic deformities such as esotropia or enophthalmos. Dr. Edstrom recited the history of the original facial trauma as well as finding shown by CT scans and the emergency room treatment at the private hospital. The physician noted that several ophthalmologic examinations during the first few months following the original trauma revealed no significant injury to the globe or extra ocular muscles, and demonstrated no ocular or eyelid dysfunction, including diplopia. He opined that there appeared to be no acute indications for surgery before the veteran's first surgery in January 1996. On review of the veteran's April 1996 septorhinoplasty, Dr. Edstrom stated that said surgery appeared to have been successful in achieving the desired result. He reviewed the December 1997 reconstructive surgery involving insertion of the malar implant, and opined that the veteran recovered well from that surgery. On physical examination in November 1999, Dr. Edstrom noted that the veteran's facial skin showed considerable changes of age and sun damage. The physician noted an apparent decrease in the presence of wrinkles on the right side of the forehead. The right eyebrow was found in a somewhat lower position than the left eyebrow, a difference noted by the physician as less than one centimeter and not conspicuous to the physician. Dr. Edstrom also found some well-healed scars around the orbit laterally and on the right side on the forehead, which were noted as difficult to delineate precisely. The malar implant was palpable over the right malar prominence and appeared to be in good position. The malar bones appeared "quite symmetrical." Dr. Edstrom opined that the decreased animation on the right side of the forehead explained the slight brow ptosis. The lower eyelids were symmetrical, had good tone, and no scleral was found. The upper eyelids were also symmetrical, positioned properly above the pupils, and functioned symmetrically. The veteran's nose was straight and appeared to function well. Dr. Edstrom's impression was that the veteran was five years status post motorcycle accident, resulting in a right malar complex fracture and lacerations around the right orbit, including apparent direct injury to the right frontalis muscle, with no significant injury to the right orbit or extraocular muscles or eyelids. The physician went on to state that the injuries the veteran incurred in August 1994 had healed well, and resulted in several cosmetic problems which had been dealt with in subsequent surgical procedures. Dr. Edstrom opined that an open reduction internal fixation procedure of the right malar bone at the time of the injury might have alleviated the need for the malar implant, "but would have been more surgery than the relatively simple implant for the same cosmetic end . . . ." He concluded his examination report by stating that he could not comment on the two different approaches without knowing the factors causing the initial decision to not operate. At the August 1999 hearing, the veteran testified as to his contention that VA should have performed the surgical procedures sooner rather than later, and that VA surgeons had not completed the job they had started. He testified that the implantation of the malar implant was done incorrectly, which resulted in his right cheek appearing "flat." He testified that he continued to experience headaches and an arthritic feeling, but noted that "I would get the aches and pains anyway because of the accident." He stated that the alleged facial deformities annoyed him greatly, and he answered "yes and no" when asked if the alleged deformities effected his social life. He testified that he was self- conscious about his appearance, and always wore sunglasses. He stated that he grew a beard to "offset" the alleged deformities. He reported that no further surgery had been scheduled, and opined that "there should be more...this has to be fixed." Legal Criteria. In December 1994, the United States Supreme Court (Court) decided Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). The Court affirmed a decision of the United States Court of Veterans Appeals that had invalidated the provisions of 38 C.F.R. § 3.358(c) as in violation of the statutory rights granted to veterans by Congress under 38 U.S.C.A. § 1151. Further, the Court held that VA was not authorized by 38 U.S.C.A. § 1151 to exclude from compensation the "contemplated or foreseeable" results of non-negligent medical treatment, as then permitted by 38 C.F.R. § 3.358(c)(3). The Supreme Court agreed with the Court of Veterans Appeals that the regulation cited was contrary to the clear language of the statue and was therefore invalid. In March 1995, VA issued amended regulations pertaining to 38 C.F.R. § 3.358 (1995). These regulations were issued to conform to the United States Supreme Court decision in Brown v. Gardner. The changes essentially deleted the requirement that VA be at fault or that an accident occur in order for compensation benefits to be payable under 38 U.S.C.A. § 1151. Further, during the instant appeal period, new legislation was enacted that, in pertinent part, amended 38 U.S.C. § 1151 with regard to what constituted a "qualifying additional disability" susceptible of compensation. See Pub. L. No. 104-204 § 422(a) and (b), 110 Stat. 2874, 292 (1996). These amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 require a showing not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. However, those amendments apply only to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg. 31263 (1998). Where the law changes after a claim has been filed or reopened, but before the administrative or judicial process has been concluded, the version most favorable will apply, unless Congress provided otherwise or permitted the VA Secretary to provide otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Secretary did not elect to do so. The veteran's claim was received in September 1996. However, for the veteran's benefit, the Board notes that the referenced legislation serves to further restrict the application of 38 U.S.C.A. § 1151 and, thus, would be less favorable to him than the statute previously in effect. As such, the Board shall apply the law in effective prior to October 1, 1997, in evaluating the veteran's claim. Id. Therefore, as the veteran filed his claim prior to October 1, 1997, the only issue before the Board is whether the veteran has facial deformities as a result of VA hospitalization or medical or surgical treatment, or as a result of a delay in any such treatment, including surgery. Under 38 U.S.C.A. § 5107(a), all claimants seeking compensation, including those seeking compensation under section 1151, have the initial burden of showing that their claim is well grounded. Jimison v. West, 13 Vet. App. 75 (1999). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [38 U.S.C.A. § 5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). For a claim to be well grounded under the pre-amendment version of 38 U.S.C.A. § 1151, the veteran must provide: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 12 Vet. App. 460 (1999). While the veteran is not required to show negligence, error in judgment or other fault in the medical treatment furnished by VA, or in this case, allegedly withheld, see Brown v. Gardner, 115 S. Ct. 552 (1994), he still has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim under the provisions of 38 U.S.C.A. § 1151 is plausible or capable of substantiation. See Murphy, supra. That is, the veteran must submit competent evidence that the alleged facial deformities were incurred as the result of VA treatment or the lack thereof. 38 U.S.C.A. §§ 1151, 5107(a). Where the determinative issue involves a question of medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A claimant cannot meet this burden simply by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In determining that additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. 38 C.F.R. § 3.358(b)(1). Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2). In determining whether any additional disability resulted from VA hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury, or aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. 38 C.F.R. § 3.358(c)(1). (2) The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(2). (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(c)(3). Analysis. Initially, in regard to the veteran's belief that his current facial deformities are the result of VA surgical treatment, or a delay in providing surgery, the Board notes that, while the veteran is competent to testify as to symptomatology he has experienced at any time, he is not competent to offer a medical opinion that VA surgery, or a delay in providing such surgery caused any additional disability. In this regard, the Board points out that a lay person, untrained in the field of medical diagnostics, is incompetent to offer an opinion which requires specialized medical knowledge. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Espiritu, 2 Vet. App. at 494. Neither the veteran nor his representative has offered any competent medical evidence in support of the claim on appeal. Neither the veteran's statements, nor the representative's arguments constitute competent medical evidence because there is no indication that they have the medical training, expertise, or diagnostic ability to competently link the veteran's hospital course or medical or surgical treatment with subsequent symptomatology. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995). In this case, the Board finds that there is no competent medical evidence of record establishing that VA medical or surgical treatment, or any delay is such treatment, caused additional residuals related to the facial trauma caused by the veteran's motorcycle accident, including any facial deformity. The medical evidence of record, most notably the opinions from three plastic surgeons, demonstrates that while the veteran has some facial deformities, those deformities are minimal, and are etiologically related directly to the trauma he experienced from the motorcycle accident. The evidence shows clearly that any facial deformity, however minimal, is not related or attributable to any surgery the veteran underwent, or to any decision by VA not to perform surgery immediately after the motorcycle accident in August 1994. Residual scarring must be considered a "necessary consequence" of the surgical procedures performed to resolve the injuries the veteran sustained in August 1994. The report by the VA plastic surgeon, outlining that surgeon's physical examination of the veteran in November 1997, is clear in demonstrating that the facial injuries the veteran incurred during his accident actually "improved considerably" after he underwent plastic surgery at the VAMC. The record shows that the VA plastic surgeon who performed the first two surgeries is the physician most familiar with the veteran's medical course. That surgeon expressed clearly that it was the motorcycle accident itself, and not lack of appropriate care by VA, that is primarily responsible for any perceived facial deformities. Similarly, the Chief of Surgical Service at the VAMC, after a thorough review of the claims file, found no indication that a more rapid surgical course would have made any difference in the eventual outcome of the veteran's appearance. The Chief of Surgical Service's report was negative for any nexus between the medical treatment the veteran received by VA and the current perceived facial deformities of which the veteran has complained. The independent opinion obtained from Dr. Edstrom, given after thorough physical examination of the veteran in November 1999, establishes a point directly contrary to the veteran's contentions, i.e., the surgical procedures performed by VA appear to have been successful in achieving the desired result. Although Dr. Edstrom noted that some facial scars and asymmetry were evidenced (the right eyebrow lower than the left by one centimeter), it was also found that the scars had healed well, and the difference in symmetry of the eyebrows was not conspicuous even to the examiner. Further, Dr. Edstrom found that the malar implant appeared in the proper position, and the veteran's malar bones appeared "quite symmetrical." Significantly, Dr. Edstrom opined that even if surgery had been performed immediately after the initial trauma, it would have been "more surgery than the relatively simple implant" which resulted in the same cosmetic end. The Board notes the veteran's sincere belief that his facial deformities were the result of VA's decision not to perform surgery immediately after he experienced the initial facial trauma. However, the veteran has presented no medical evidence contrary to the medical opinions of record which consistently reflect that the deformities the veteran complains of were incurred directly as a result of the motorcycle accident in August 1994, and not due to VA treatment or the lack thereof. In sum, the Board finds that no competent evidence has been presented which demonstrates that, but for a delay in surgery by VA, the veteran's alleged facial deformities would not be presently manifest. The Board concurs with the RO's findings that there is no competent medical evidence of record establishing that the veteran experienced any facial deformities as the result of VA surgery performed in January 1996, April 1996, and December 1997. Similarly, the Board finds that no competent evidence is of record which demonstrates that any delay by VA in the performance of surgery on the veteran's face was directly related to the veteran's alleged facial deformities. The Board finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence of any post- service medical evidence that has not already been obtained or requested that would well ground his claim. McKnight v. Brown, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the foregoing decision explains the need for competent evidence in order to establish a well-grounded claim, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disability. Robinette v. Brown, 8 Vet. App. 69 (1995). Finally, the Board has considered the doctrine of the benefit of the doubt. However, as the veteran's claim does not cross the threshold of being a well-grounded claim, a weighing of the merits of the claim is not warranted, and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under the provisions of 38 U.S.C.A. § 1151, for facial deformities as the result of VA medical treatment, or any delay by VA in providing medical treatment, is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals