Citation Nr: 18147876 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-19 292A DATE: November 6, 2018 ORDER New and material evidence has been received sufficient to reopen a previous final denial for entitlement to compensation for left vocal cord paralysis, resulting from left carotid artery endarterectomy. Entitlement to compensation for left vocal cord paralysis, resulting from left carotid artery endarterectomy, is granted. REMANDED ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A November 2009 decision denied the Veteran’s entitlement claim for compensation for left vocal cord paralysis; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The evidence received since the November 2009 rating decision, for the Veteran’s entitlement claim for left vocal cord paralysis, is neither cumulative nor repetitive of facts that were previously considered. 3. The Veteran’s left vocal cord paralysis is the direct result of a left carotid endarterectomy, which was performed in December 2008 without receipt of the requisite informed consent. CONCLUSIONS OF LAW 1. The November 2009 rating decision that denied the Veteran’s entitlement claim for left vocal cord paralysis is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2016). 2. Following the November 2009 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran’s claim for entitlement to compensation for left vocal cord paralysis. 38 U.S.C. 5108 (West 2014); 38 C.F.R. 3.156 (a)(2017). 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for left vocal cord paralysis, which resulted from left carotid endarterectomy, have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from June 1970 to June 1977. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). VOCAL CORD DISABILITY Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a) (2015). To warrant reopening, the new evidence must not be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a “low threshold” for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been received sufficient to reopen a previous final denial for entitlement to compensation for left vocal cord paralysis, resulting from left carotid artery endarterectomy. In November 2009, the agency of original jurisdiction (AOJ) denied the Veteran’s original claim for compensation under 38 U.S.C. §1151 for left vocal cord paralysis, resulting from left carotid artery endarterectomy. At that time, the AOJ concluded that, “(e)ntitlement to compensation for left vocal cords paralyzed due to surgery carotid endarterectomy carotid artery is denied because the evidence fails to establish that VA medical or educational services were the proximate cause of additional disability.” In January 2010, VA received correspondence from the Athens Heart Center. Therein, Dr. MB revealed that, “(the Veteran) is a patient . . . who is under my care and Dr. (SA’s) care. He was found to have a possible embolic event in his left eye. Then he underwent carotid duplex studies and carotid angiography done by invasive catherization. He underwent a left carotid endarterectomy at Augusta VA on December 4, 2008 and develop vocal cord paralysis after that time. From my review . . . the indication for the left carotid endarterectomy appears unclear. Complications of left carotid endarterectomy was the patient developed vocal cord paralysis causing him significant disability since that time.” In an April 2011 statement of the case (SOC), the AOJ continued to deny the Veteran’s entitlement claim for compensation for left vocal cord paralysis, resulting from left carotid endarterectomy. At that time, the AOJ observed that, “Dr. (MB) did not opine that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.” The Veteran did not perfect his appeal to the Board of Veterans’ Appeals after receipt of the SOC, and the denial became final. Again, evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156 (a). In January 2011, an attending vascular surgeon, Dr. AAS, delivered his thorough and well-reasoned report after review of the Veteran’s claims file. The evidence provided by Dr. AAS will be explored in greater detail below. However, for the purpose of reopening the Veteran’s claim, the Board concludes that this evidence is new, in that it was not before the AOJ when the Veteran’s claim was previously denied. It is also material in that it relates to an unestablished fact necessary to substantiate the claim, i.e., the relationship between vocal cord paralysis and carotid endarterectomies. It is, therefore, new and material. The Veteran’s entitlement claim for compensation for left vocal cord paralysis, resulting from left carotid endarterectomy, is reopened. 2. Entitlement to compensation for left vocal cord paralysis, resulting from left carotid artery endarterectomy, is granted. In July 2015, the Veteran submitted his VA Form 21-526EZ. Thereby, the Veteran renewed his claim for entitlement to compensation for left vocal cord paralysis, resulting from left carotid endarterectomy. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability if the disability was caused by VA hospital care, medical or surgical treatment, or examination, proximately due to: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA medical treatment directly resulted in the Veteran’s additional disability, not just a remote contributing cause. 38 C.F.R. § 3.361 (d). Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish causation, and the disability must be beyond the natural progress of a disease unless VA failed to timely diagnose and properly treat the disease or injury and proximately caused that progress. 38 C.F.R. § 3.361 (c)(1)-(2). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or, in appropriate cases, the informed consent of his representative. 38 C.F.R. § 3.361 (d)(1); VAOPGCPREC 5-01 (2001). Whether the proximate cause of the Veteran’s additional disability was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). 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. Id. 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 disclosed in connection with informed consent procedures. 38 C.F.R. § 17.32. In April 2009, VA received the Veteran’s medical treatment notations from the Augusta VA medical clinic (VAMC). Therein, on December 3, 2008, Dr. MFR noted that the Veteran was admitted for an elective surgery. At that time, Dr. MFR noted that, “he is aware of the indications for the procedure, potential risks and complications that may arise to include bleeding, cardiopulmonary complications, and stroke. He is also aware that conservative management of his LICA stenosis has a higher risk of stroke compared to surgical intervention at this institution. Patient has agreed to proceed.” After completion of the surgical procedure, on January 30, 2009, Dr. MFR reported that, “(p)atient was clearly aware of the indications for the procedure, potential risks and complications that included bleeding, CVA, cranial nerve injuries, and thrombosis.” In July 2009, the Veteran submitted his VA Form 21-4138. Therein, the Veteran posited that, “(d)octors said operation would greatly improve my quality of life. Well it had opposite effect. After operation, I could barely speak and today I choke and aspirate frequently. I cannot communicate with my family more than a lite voice.” The Veteran continued his statement with, “(a)t the beginning I told you I just needed a pair of glasses. Well when I went back to VA Augusta Ophthalmology Dr. Green for follow up, she couldn't find any plaque on my optic nerve or anywhere, and my vision has returned to 20/20. . .. Dr. Green said she was sorry that she sent me down this road.” Ultimately, the Veteran surmised his statement with, “in short, I feel like the surgery on my left carotid artery was unnecessary and cause me to be worse off than before.” In July 2009, VA received correspondence from the Veteran’s spouse, BHF. Therein, BHF posited that, “to sum it all up—substandard care, wrong diagnosis, unnecessary surgery. Cut left vocal nerve. . .. I told Dr. Ramerez it was unnecessary surgery—he said maybe so. Roxanne in doppler ultrasound asked . . . why did you have surgery?” In January 2010, VA received correspondence from the Athens Heart Center. Therein, Dr. MB revealed that, “(the Veteran) is a patient . . . who is under my care and Dr. (SA’s) care. He was found to have a possible embolic event in his left eye. Then he underwent carotid duplex studies and carotid angiography done by invasive catherization. He underwent a left carotid endarterectomy at Augusta VA on December 4, 2008 and develop vocal cord paralysis after that time. From my review . . . the indication for the left carotid endarterectomy appears unclear. Complications of left carotid endarterectomy was the patient developed vocal cord paralysis causing him significant disability since that time.” In January 2011, an attending vascular surgeon, Dr. AAS, delivered his thorough and well-reasoned report after review of the Veteran’s claims file. Therein, Dr. AAS opined that, “we are dealing with a carotid lesion which is not hemodynamically significant. Such a lesion would not have been an indication for surgery by itself. However, the lesion was ulcerated and there was objective evidence that the patient had embolization to the left eye. In this situation, it is not unreasonable to be concerned that the carotid lesion may be a potential source of emboli that could give the patient a major stroke. Most vascular surgeons believe that carotid endarterectomy is indicated in such cases. To make this point more clear, should the surgeon decide not to operate and the patient, down the road, suffers from an embolic stroke localizing to same side hemisphere, he could be blamed for not having done the operation to prevent this life threatening complication.” Regarding the Veteran’s left vocal cord paralysis, Dr. AAS opined that, “left cord paralysis . . . is a well known complication of carotid endarterectomy. I reviewed the operative report and found no unusual technical difficulties or any coexisting problems such as previous neck surgery, neck irradiation or an unusually high lesion, that could have alerted the surgeon that the predicted risk of recurrent laryngeal injury was exceptionally high. (emphasis added)” In January 2015, the Veteran submitted his VA Form 21-4138. Therein, the Veteran posited that, “my vocal cords do not strike, caused by injury in surgery (at) VA hospital.” The Veteran continued his statement with, “Dr. Remariz was supposed to do the surgery. I feel I was used as a guinea pig. Lots of interns around. I will suffer with pain, not being able to swallow + chew my food like I did before surgery. Can’t talk, sing, eat properly etc. Choke a lot.” Again, under 38 U.S.C. § 1151, a Veteran will receive compensation for a qualifying additional disability if the disability was proximately due to an instance of fault on the part of the VA in furnishing the hospital care, to include medical or surgical treatment. Id.; 38 C.F.R. § 3.361. Along with causation, it must also be shown that VA furnished the hospital care, to include medical or surgical treatment, without the informed consent of the Veteran. 38 C.F.R. § 3.361 (d)(1); VAOPGCPREC 5-01 (2001). 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 disclosed in connection with informed consent procedures. 38 C.F.R. § 17.32. Here, on December 3, 2008, prior to the Veteran agreeing to undergo an elective surgery, Dr. MFR provided the following guidance, “he is aware of the indications for the procedure, potential risks and complications that may arise to include bleeding, cardiopulmonary complications, and stroke. He is also aware that conservative management of his LICA stenosis has a higher risk of stroke compared to surgical intervention at this institution. Patient has agreed to proceed. (emphasis added)” In January 2011, Dr. AAS reported that, “left cord paralysis . . . is a well known complication of carotid endarterectomy. (emphasis added)” Since left vocal cord paralysis is a well-known complication of a carotid endarterectomy, the Veteran should have been made aware of the risk prior to a request for his consent in December 2008. The consent forms contained in the claims folder do not shot that the Veteran was advised of the risk that his vocal cords could be affected by his elective surgery. Therefore, the Board finds that VA furnished the hospital care without the requisite consent. See 38 C.F.R. § 3.361 (d)(1)(ii); VAOPGCPREC 5-01 (2001). Ultimately, the preponderance of the evidence favors the Veteran’s claim for a compensation for left vocal cord paralysis. Accordingly, this entitlement claim must be granted. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. This doctrine of reasonable doubt is not applicable in this case because the preponderance of the evidence favors the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). REMAND Regarding the Veteran’s claim for a TDIU, as discussed above, the Board has granted the Veteran’s claim for compensation for vocal cord paralysis. in this decision. The agency of original jurisdiction (AOJ) will assign a disability rating for this disability in the first instance. Clearly, the AOJ has not had the opportunity to consider the Veteran’s TDIU claim in light of the Board’s grant of service connection for a bilateral hearing loss disability. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. On remand, the AOJ should implement the Board’s decision granting compensation for vocal cord paralysis. After assigning an initial evaluation for this disability, the AOJ should readjudicate the intertwined issues of TDIU. Accordingly, this case is REMANDED for the following action: 1. Following the implementation of the initial disability rating assignment for vocal cord paralysis, the Veteran’s claims for TDIU must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to   2. respond thereto. The appeal must then be returned to the Board for appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel