Citation Nr: 1815448	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  14-05 831	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for hypoparathyroidism, claimed as residual of a parathyroidectomy performed for hyperparathyroidism.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and her sister


ATTORNEY FOR THE BOARD

Koria B. Stanton, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1977 to October 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In December 2016, the Veteran and her sister testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record after the issuance of the June 2015 supplemental statement of the case.  Additionally, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration.  38 C.F.R. § 20.1304(c) (2017); see also 38 U.S.C. § 7105(e)(1) (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165.  Therefore, the Board may consider such newly received evidence.


FINDINGS OF FACT

1.  The August 2009 surgery consisting of neck re-exploration, excision of the left inferior parathyroid gland, and extended right hemithyroidectomy was not performed by a VA employee or at a VA facility.

2.  The additional disability incurred as a result of the August 2009 surgery was not the result of an event not reasonably foreseeable.  


CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C. § 1151 for hypoparathyroidism, claimed as residual of a parathyroidectomy performed for hyperparathyroidism, are not met.  38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361(2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Further, neither the Veteran nor her representative has alleged any deficiency with respect to VA's duties to notify or assist.  See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  Analysis 

The Veteran contends that she is entitled to compensation under the provisions of 38 U.S.C. § 1151 for hypoparathyroidism, claimed as residual of a parathyroidectomy performed for hyperparathyroidism.  In this regard, in written correspondences dated in April 2011, February 2012, and February 2015, and during the December 2016 Board hearing, she alleges that, prior to undergoing any surgeries, a CAT scan determined that she had a parathyroid tumor on the right side of her neck.  She reports that, in April 2009 at the Nashville, Tennessee, VA Medical Center (VAMC), she underwent an unsuccessful surgery to remove the tumor (and one of her left side parathyroid glands were removed) and was told that an additional surgery by a specialist would need to be performed in order to find and remove the tumor.  

The Veteran reports that she was then referred to Vanderbilt University Medical Center, where she underwent another unsuccessful surgery to remove the tumor in August 2009.  In this regard, she indicates that such surgery was performed at no charge to her and, although on the day of the surgery, the surgeon referred to operating only on the right side of her neck, her remaining left side parathyroid gland was removed and she was told again that an additional surgery would need to be performed in order to find and remove the tumor.  She further indicates that, as a result of the removal of her remaining left side parathyroid gland, she was unable to speak for approximately 3-4 months, suffered from the swelling of her neck, and had multiple scars.  The Veteran also reports that her lymphatic system was damaged due to the scar tissue from her August 2009 surgery and such damage required her to have a catheter in her neck that was drained every week, lead to the immobilization of her neck for approximately seven months, required her to ingest large doses of Calcium and Vitamin D every day, and resulted in an additional surgery in approximately November 2016 to remove an edema tumor where her neck had swollen.  

Additionally, the Veteran reports that she subsequently underwent a surgery at the Nashville, Tennessee, VAMC in March 2011, which successfully removed the parathyroid tumor.  
  
The Veteran contends that, while her April 2009 and March 2011 surgeries performed at the Nashville, Tennessee, VAMC were completed correctly (as the April 2009 VA physicians stopped the procedure and did not further explore the left side of her neck once they were unable to find the right side parathyroid tumor; and the March 2011 VA physicians successfully removed such tumor), the removal of her healthy left side parathyroid gland during her August 2009 surgery at the Vanderbilt University Medical Center lead to the complications/residuals she suffered.   

Although sympathetic to the Veteran's contentions, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 based on the August 2009 surgery is not warranted. 

Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment.  A disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable.  38 U.S.C. § 1151; 38 C.F.R. § 3.361. 

Under 38 C.F.R. § 3.361(e)(1), a VA employee is an individual (i) who is appointed by VA in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. 

Under 38 C.F.R. § 3.351(e)(2), a VA facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction.  38 U.S.C. § 1701(3)(A). 

Under 38 C.F.R. § 3.361(f), activities that are not hospital care, medical or surgical treatment, or examination by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have jurisdiction. 

In reference to the above, 38 U.S.C. § 1703 states that when Department facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required, the Secretary, as authorized in section 1710 of this title, may contract with non-Department facilities in order to furnish hospital care or medical services to a veteran for the treatment of a service-connected disability.  See 38 U.S.C.
§ 1703(a)(1)(A).  

In the instant case, the underlying facts are not in dispute.  A review of the record confirms that the Veteran was seen at Vanderbilt University Medical Center as a referral from the Nashville, Tennessee, VAMC where she underwent a neck re-exploration, excision of the left inferior parathyroid gland, and extended right hemithyroidectomy in August 2009 by Dr. N.A.  Here, a June 2009 VA treatment record reported that a scan appeared to show that a parathyroid adenoma in the Veteran's right inferior thyroid pole area was still there and, as such, a fee-based surgical evaluation for a repeat surgery was requested in order to look closer into such area to remove the adenoma.  Additionally, an August 2009 private treatment record noted that the plan was to proceed with re-exploration of the Veteran's neck with intraoperative PTH levels, and Dr. N.A. discussed the surgical procedure with the Veteran in the presence of her sister and marked the operative site.  An August 2009 private treatment record from the same day revealed Dr. N.A.'s report that the Veteran had underwent a neck exploration at the Nashville, Tennessee, VAMC nearly 12 weeks prior, and at such time, the surgeons noted the presence of multinodular goiter involving the right thyroid lobe, which was partially resected; they identified one parathyroid gland on the right side, which was removed; and they did not explore the left side.  Such record further reveals that Dr. N.A. reported a pre-operative and post-operative diagnosis of primary hyperparathyroidism.   

In performing the above-mentioned procedures with a team, Dr. N.A. indicated that an enlarged parathyroid gland in the area of the Veteran's left inferior thyroid region was observed and such was dissected; while exploring the right side of the Veteran's gland, it was noted that her right thyroid lobe was nearly intact except for what appeared to have been an excision of the right inferior lobe performed at the Nashville, Tennessee, VAMC; in view of the fact that they were unable to localize any parathyroid tissue on the right side, a right hemithyroidectomy was completed; and the Veteran tolerated the procedure well. An additional private treatment record from the same day indicated that, following thyroid surgery, the Veteran complained of difficulty breathing and hoarseness.  

A September 2009 VA treatment record revealed the Veteran had her second surgery the previous month during which a left lower pole adenoma was found and removed, "but the scan pre-op showed a R lower pole spot."  Such record further revealed that Dr. N.A. did not see anything on the Veteran's right side after searching in detail.  A March 2011 VA treatment record indicated that the Veteran had hypocalcemia after the removal of a large right parathyroid adenoma, numbness and hand tingling, and was draining milky fluid from her surgical site.  Such record further indicates that there was a concern that the Veteran either did not have a functional left upper parathyroid "(should not have been touched on previous surgeries)" or that she was slow in recovering PTH secretion after suppression for so long, and was suffering from hungry bones syndrome, which lead to the recommendation that she began taking Vitamin D and Calcium supplements.  

An additional March 2011 VA treatment record reported that the Veteran underwent a neck re-exploration and inferior right parathyroidectomy during which the parathyroid adenoma in the Veteran's right inferior region of the neck was removed, and a JP drain was inserted through the right inferior skin into the operative site.  An April 2011 VA treatment record indicated that the Veteran had a large 6 cm swelling on her right lateral inferior neck.  A June 2011 VA treatment record noted that the Veteran required three surgeries to find a right upper parathyroid adenoma, her PTH promptly fell, she should have one parathyroid left on her left side, she had been hypocalcemic, and she had a chylous leak from the most recent surgical site.  An additional June 2011 VA treatment record revealed that a seroma catheter was placed in the Veteran's right side of the neck.  A January 2013 VA treatment record reported the Veteran's complaint of chronic neck pain and stiffness.  A July 2013 VA treatment record noted that the Veteran's Calcium levels were still low and keloids had formed on several of her neck scars.  A January 2015 VA treatment record reported that the Veteran was still taking Vitamin D and Calcium supplements.  A November 2016 VA treatment record revealed that the Veteran was admitted to the hospital for a night for a thyroid issue. 
 
A March 2012 written correspondence from the Veteran's sister, S.L., revealed that the Veteran was in excellent health prior to her first parathyroid surgery in April 2009 and she was with the Veteran when she had her second parathyroid surgery in August 2009 at the Vanderbilt University Medical Center by Dr. N.A.  In this regard, S.L. indicated that, prior to and on the day of the surgery, Dr. N.A. discussed the surgery with the Veteran and stated that he would be operating on the right side of her neck in an attempt to locate the parathyroid tumor and there was no way that the Veteran gave consent for Dr. N.A. to operate or explore the left side of her neck.  S.L. further indicated that, following the surgery, the Veteran was unable to speak and was not able to do so until four months thereafter.  

Based on the foregoing, the Board finds that the Veteran incurred an additional disability as a result of the August 2009 surgery at Vanderbilt University Medical Center.  However, as the governing statute provides, as a threshold matter, that the benefits sought are available for an additional disability resulting from VA hospital care, VA medical or surgical treatment, or examination.  See 38 C.F.R. § 3.351.  Such is further defined as services that were either provided by a VA employee or performed in a VA facility.  The Veteran's August 2009 neck re-exploration, excision of the left inferior parathyroid gland, and extended right hemithyroidectomy were performed at Vanderbilt University Medical Center, which is not a facility over which VA has direct jurisdiction and thus is not a "VA facility" within the clear meaning of 38 C.F.R. § 3.361(e)(2); and provided by Dr. N.A., which the evidence does not reflect, and the Veteran does not contend, was an individual under the direct ("day-to-day activities") supervision of the Secretary of Veterans Affairs, and thus is not a "VA employee" within the clear meaning of 38 C.F.R. § 3.361(e)(1).  

Additionally, fee-basis authorization was granted for the thyroid procedures performed at Vanderbilt University Medical Center under the provisions of 38 U.S.C. §1703.  According to 38 U.S.C. §1703, the Secretary may contract with non-Department facilities to furnish hospital care or medical service to a veteran for treatment of a service-connected disability, a disability for which a veteran was discharged or released from service, or for a disability of a veteran who has a total disability permanent in nature from a service-connected disability.  See 38 U.S.C. §1703(1).  VA may also contract with non-Department facilities to provide medical services for treatment of a veteran who has been furnished hospital care and requires medical service to complete treatment incident to such care or services, and for hospital care for women veterans.  See 38 U.S.C. § 1703(2), (4).  However, 38 C.F.R. § 3.361(f) specifically excludes awards for benefits under 38 U.S.C. § 1151 for hospital care or medical services furnished by contract under 38 U.S.C. § 1703.  

In this regard, the Board acknowledges that the Veteran may well have misunderstood that approval of the surgery at Vanderbilt University Medical Center by the VA fee-basis unit implied that VA was taking proprietorship of the treatment, and, as such, appears to assert that she is entitled to compensation under 38 U.S.C. § 1151 on an equitable basis.  While the Board is sympathetic toward the Veteran, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations.  Furthermore, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable.  See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).    

Moreover, while the Veteran contends that VA was negligent in that they referred her to Vanderbilt University Medical Center, such is not tantamount to an extension or continuance of liability for anything later occurring at such facility.  Here, in a fairly recent case that addresses whether VA should be held responsible under 38 U.S.C. § 1151 for treatment received as a result of VA referral or recommendation, the United States Court of Appeals for Veterans Claims (Court) noted that "the federal courts have recognized that conduct is not a 'cause' of an injury in the legal sense if the injury would have occurred regardless of the conduct, or if there is an intervening exercise of independent judgment, or if the injury is simply too attenuated from the conduct.  Ollis v. McDonald, 27 Vet. App. 405, 410 (2015).  The Court concluded that section 1151's causation requirement does not extend to remote consequences of VA conduct.  Id. at 409-10.  Thus, to the extent that VA referred or recommended non-VA surgical treatment in August 2009, the Board finds that such referral or recommendation did not cause the Veteran's additional disability, as there was an intervening exercise of independent judgment.   Here, VA did not authorize any procedures, they merely made the referral to the specialist, Dr. N.A., who subsequently derived a plan of treatment for the Veteran's hyper-parathyroidism.  Additionally, the evidence does not reflect, and the Veteran does not contend, that the VA physician involved in the referral to Vanderbilt University Medical Center was aware of any incompetence or lack of skill on the part of Dr. N.A.  Therefore, the Board finds that the reported additional disability was a remote consequence of, and was not caused by, VA's conduct.   

In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the Court's determination that 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.  Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017).  However, the Federal Circuit found that benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. 

In this regard, 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, under the holding in Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran's surgery (i.e., that the VA practitioners recommended that the Veteran have the surgery performed) and (2) the additional disability that occurred was the result of an "unforeseeable event."  Here, while the Veteran's VA health care providers recommended that she have surgery and referred her to Vanderbilt University Medical Center for such treatment, the additional disability incurred as a result of such treatment was not due to an event not reasonably foreseeable.  In this regard, while the Veteran and her sister allege that she did not consent to all aspects of the surgery, the October 2011 VA examiner specifically found that the complications that the Veteran sustained were a part of the foreseeable risk of such type of procedure.

Specifically, at the October 2011 VA examination, the Veteran reported that she had parathyroid glands that were "removed without her permission" while attempting to remove a parathyroid adenoma for hypercalcemia.  However, following a review of the record and an examination of the Veteran, the October 2011 VA examiner opined that the complications that the Veteran sustained were a part of the foreseeable risk of such type of procedure.  As rationale for the opinion, the examiner reported that a parathyroidectomy to parathyroid adenoma is a very technically challenging procedure, and is fraught with complications, especially with a small adenoma as the parathyroid glands are very small and oftentimes hard to identify grossly.  He further reported that, while the Veteran's chyle leak was an unfortunate complication that he was sure caused the Veteran mental and emotional anguish, he did not feel that she was misled by the surgeons who cared for her at both the Nashville, Tennessee, VAMC and Vanderbilt University Medical Center in their discussions of the risks of surgery, particularly when she was undergoing revision surgeries in previously scarred surgical fields.  Additionally, the examiner indicated that such was a possible risk of the revision surgery and the technical challenges of such operation were communicated to the Veteran .  He further indicated that he believed the surgery was the type of risk that a reasonable health care provider would have disclosed, and he had no reason to believe that such was something that was not disclosed by the treating surgeons in the Veteran's case.  Furthermore, the examiner noted that, with regard to the Veteran's claim that her glands were removed without her permission, the technical challenges of this surgery made the removal of multiple parathyroid glands and resultant hypocalcemia a distinct possibility and, upon review of the Veteran's signed informed consent documents for surgery, such was something that was explicitly stated.  The examiner concluded that there was no procedure performed by any of the Veteran's treating surgeons that caused her to have a tumor.  

Based on the foregoing, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 for hypoparathyroidism, claimed as residual of a para-thyroidectomy performed for hyperparathyroidism, is not warranted.  In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and her claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Compensation under the provisions of 38 U.S.C. § 1151 for hypoparathyroidism, claimed as residual of a parathyroidectomy performed for hyperparathyroidism, is denied. 



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs