Citation Nr: 21022326 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-07 630 DATE: April 15, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residual damaged vocal cords status post throat surgery is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDING OF FACT The weight of the evidence is against a finding that the Veteran suffered a residual disability due to April and May 2009 surgical procedures at a VA medical center that was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in treatment of the Veteran. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a residual disability stemming from April and May 2009 surgical procedures performed in a VA medical center have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to March 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2015. A transcript of that hearing is of record. These matters were previously remanded by the Board in September 2018. Entitlement to compensation under 38 U.S.C. § 1151 for residual damaged vocal cords status post throat surgery The Veteran contends that he has incurred damage to his vocal cords as a result of throat surgeries at a VA medical center. The Veteran has not argued that VA exercised negligence in conducting these surgeries. Instead, he submitted a lay statement in September 2013 arguing that VA regulations call for providing compensation to veterans injured through VA care without respect to negligence, accident, or even deliberateness. This statement has not accurately stated the law – negligence or fault is part of the analysis for a claim under 38 U.S.C. § 1151. 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); see Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). Hospital care, medical or surgical treatment, or examination cannot cause the continuation or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). The proximate cause of disability is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when hospital care or medical or surgical treatment caused the veteran’s additional disability and VA either “failed to exercise the degree of care that would be expected of a reasonable health care provider” or furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361 (d)(2). The event does not have to be “completely unforeseeable or unimaginable” but it must “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361 (d)(2); see Schertz v. Shinseki, 26 Vet. App. 362 (2013). The VA opinions of record clearly reflect that VA exercised the degree of care that would be expected of a reasonable health care provider when the Veteran’s throat surgeries were conducted. The most probative is the second October 2020 VA medical opinion, which noted that the Veteran underwent left hemithyroidectomy for an overactive thyroid gland at Martinsburg VA in April 2009. Surgery was complicated by post-op hematoma requiring return to the operating room for evacuation of 200 cc hematoma and control of bleeding in May 2009. The report indicates that since the return to the operating room, the patient has reported hoarseness, dyspnea, dysphagia, and paralyzed left vocal cord. The examiner stated that, per literature, vocal cold paresis or paralysis due to iatrogenic injury of the recurrent laryngeal nerve (RLNI) is one of the main problems in thyroid surgery. The examiner explained that the incidence of recurrent laryngeal nerve palsy varies between 1.5-14 percent, and opined that the high incidence of laryngeal nerve damage even in the observation of the utmost care indicates that during surgery injury may still occur. The examiner concluded that the additional/residual vocal cord disability following the May 2009 throat surgery is less likely than not caused by carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of the VA prior to and in furnishing surgical treatment. The examiner also opined that the incidence of recurrent laryngeal nerve palsy being between 1.5-14 percent indicates that the Veteran’s residual vocal cord disability following his May 2009 throat surgery is less likely than not caused by an event not reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with informed consent. The Board finds that the second October 2020 VA medical opinion is probative evidence against entitlement to compensation under 38 U.S.C. § 1151 for residual vocal cord injury. The opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered whether VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent. The Veteran has not contended that he did not provide informed consent for his surgeries. The Veteran’s consent was confirmed in the VA treatment records regarding the April 2009 and May 2009 surgeries. Although the actual consent forms are not of record, absence of a specific list of risks on informed consent is not evidence that VA failed to obtain informed consent, and it may not be presumed that complications were not discussed because they were not recorded. See Halcomb v. Shinseki, 23 Vet. App. 234 (2009) (holding the Veteran did not establish lack of informed consent before eye surgery as the basis for entitlement to compensation benefits for loss of vision of the eye under 38 U.S.C. § 1151 based solely on failure of consent documents to list specific disclosed risks.) Therefore, remanding this matter in an attempt to obtain the actual consent forms when there is no dispute that the Veteran provided informed consent for the surgeries in question would result in additional delay with no benefit flowing to the Veteran, and is to be avoided. Soyini v. Principi, 1 Vet. App. 540, 546 (1991). The most probative evidence of record thus demonstrates that the residual paralysis of the Veteran’s vocal cords was not the result of VA failing to exercise the degree of care that would be expected of a reasonable health care provider, and is not due to an event not reasonably foreseeable. Therefore, the preponderance of the evidence is against the claim, and entitlement to compensation under 38 U.S.C. § 1151 for residual damaged vocal cords status post throat surgery must be denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability is remanded. The claim must be remanded for further development. The October 2019 VA examination found the Veteran’s psychiatric disability had its onset following his medical issues in 2011. The examiner acknowledged the Veteran’s isolation and withdrawn behavior after his military service, but found that there were confounding reasons, such as the Veteran’s alcohol and drug use. The examiner noted that the reason given by the Veteran for alcohol and drug abuse was boredom and availability of substance, rather than self-medicating behavior, and concluded that the Veteran’s symptoms cannot be solely explained by his reported military stressor at a percentage greater than 50. Unfortunately, the examiner has misstated the standard – the law only requires that the Veteran’s psychiatric disability be at least as likely as not (50 percent or greater probability) due to his military service. Moreover, the examiner’s assertion that the Veteran’s psychiatric symptoms began following medical issues in 2011 is contradicted by the record, which notes a diagnosis of generalized anxiety disorder in November 2000, well before 2011. This November 2000 treatment note also indicates that the Veteran’s alcohol use served to reduce his anxiety about social interaction. A September 2017 VA treatment note indicates that the etiology of the Veteran’s substance addiction may be related to a combination of repercussions of his Vietnam experience (particularly friendly fire incident) and his early history of being raised by an alcoholic couple. A VA treatment note from later that month indicates that as a result of the Veteran’s “failure” in the military, he turned to alcohol and drugs to escape unidentified emotional pain and fear. A June 2018 VA treatment note indicates that the Veteran credited his in-service involvement with an incident of friendly fire as the initial precipitant of his severe alcohol and substance abuse problems. These treatment notes all contradict the examiner’s finding that the Veteran’s drug and alcohol abuse was the result of boredom. Upon remand, a new medical opinion should be obtained that uses the correct standard, acknowledges the psychiatric diagnosis from as early as November 2000, and discusses the possibility that the Veteran’s drug and alcohol abuse following service is evidence of underlying psychiatric symptoms. During an August 2015 hearing, the Veteran reported in-service stressor of being involved with and blamed for an incident where someone accidentally firing on their own platoon, resulting in the Veteran’s ostracization. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressor. An October 2020 VA treatment note indicates that there may be outstanding and relevant Social Security Administration (SSA) records. A remand is required to allow VA to request these records. A January 2001 VA treatment record identifies relevant outstanding private treatment records, namely a psychiatric hospitalization in 1985 at A. General Hospital. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for A. General Hospital, the facility where he was hospitalized for psychiatric reasons in about 1985 according to a January 2001 VA treatment record. Make two requests for the authorized records from A. General Hospital unless it is clear after the first request that a second request would be futile. 3. Attempt to corroborate the Veteran’s in-service stressor, including being involved with and blamed for an incident where someone accidentally fired artillery rounds on their own platoon. If more details are needed, contact the Veteran to request the information. 4. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s acquired psychiatric disability is at least as likely as not (50 percent or greater probability) related to his experiences in service, to include his report of being involved in an incident where an individual accidentally fired rounds on their own personnel. The opinion offered must be supported by a complete rationale. The clinician is advised that the Veteran was diagnosed with a psychiatric disability (generalized anxiety disorder) in November 2000, well before the 2009 throat surgeries that the Veteran believes caused his vocal cord damage or any medical issues beginning in 2011. The clinician must consider whether the Veteran’s drug and alcohol abuse following service are evidence of self-medication of underlying psychiatric symptoms, and is asked to reconcile his or her findings with the November 2000 treatment note indicating that the Veteran’s alcohol use served to reduce his anxiety about social interaction; the September 2017 VA treatment note indicates that the etiology of the Veteran’s substance addiction may be related to a combination of repercussions of his Vietnam experience (particularly friendly fire incident) and his early history of being raised by an alcoholic couple; another September 2017 VA treatment note indicating that as a result of the Veteran’s “failure” in the military, he turned to alcohol and drugs to escape unidentified emotional pain and fear; and the June 2018 VA treatment note in which the Veteran credited his in-service involvement with an incident of friendly fire as the initial precipitant of his severe alcohol and substance abuse problems. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.