Citation Nr: 18159193 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-59 903 DATE: December 18, 2018 REMANDED Entitlement to compensation under 38 U.S.C. 1151 (2012) for vocal cord damage with paralysis is remanded. REASONS FOR REMAND This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision. Compensation under 38 U.S.C. § 1151 is awarded for a qualifying disability in the same manner as if it were service-connected. A disability is qualifying if two conditions are met: (1) the disability was not the result of the veteran’s willful misconduct, and (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by the United States Secretary of Veterans Affairs, either by a VA employee or in a VA facility, 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. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (2017). For claims brought pursuant to 38 U.S.C. § 1151, a medical examination or opinion may be required when the evidence of record indicates that the veteran’s disability or symptoms may be associated with hospital care, medical or surgical treatment, or examination furnished by VA (including during rehabilitation and CWT treatment). See Trafter v. Shinseki, 26 Vet. App. 267 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran underwent a parathyroidectomy at the VA Medical Center (VAMC) in Washington, DC on March 21, 2013. He contends that, as a result of the surgery, he sustained vocal cord damage with paralysis. A pre-operative note dated March 21, 2013 shows that, prior to his surgery, the Veteran was informed that possible complications of his surgery include recurrent laryngeal nerve injury (or vocal cord paresis or paralysis). The Veteran nevertheless asserts that this specific condition was not discussed with him in advance and that his surgeon repeatedly assured him that he had performed the procedure many times without complications. He also asserts that his surgery was delayed because his surgeon was busy performing another surgery and that he was fed lunch prior to the procedure. The Board finds that a VA examination is needed to determine the extent of the Veteran’s vocal cord damage, to consider whether it was proximately caused by carelessness or any instance of fault on the part of VA, and to address whether it was due to an event not reasonably foreseeable. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2016 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any treatment regarding his vocal cord damage with paralysis that he would like associated with the claims file. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination with a physician with appropriate expertise regarding the Veteran’s March 2013 parathyroidectomy and post-operative care. The physician is to review the claims file and advance an opinion as to the following: (a.) Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s vocal cord damage with paralysis resulted from the March 2013 parathyroidectomy? (b.) Is it least as likely as not (a 50 percent or greater probability) that the proximate cause of the Veteran’s vocal cord damage with paralysis was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment? (continued on next page) (c.) If the vocal cord damage with paralysis was actually caused by VA treatment but it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, is it at least as likely as not (a 50 percent or greater probability) that it was due to an event not reasonably foreseeable? K.Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel