Citation Nr: 21024314 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-10 234A DATE: April 22, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a respiratory disability due to February 2013 parathyroid surgery to remove an adenoma is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran did not incur an additional respiratory disability due to February 2013 parathyroid surgery to remove an adenoma. CONCLUSION OF LAW The criteria for entitlement to benefits under 38 U.S.C. § 1151 for a respiratory disability due to February 2013 parathyroid surgery to remove an adenoma 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 February 1997 to November 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in October 2018 for further development. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) The Veteran was scheduled to testify at a hearing before the Board on May 2018. An April 2018 letter notified the Veteran of the date, time, and location of the hearing. However, he did not appear for this hearing and has not provided a reason for his failure to appear or requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). 1. Entitlement to compensation under 38 U.S.C. § 1151 for a respiratory disability due to February 2013 parathyroid surgery to remove an adenoma is denied. Compensation under 38 U.S.C. § 1151 is granted for additional disability or death if the additional disability or death was not the result of willful misconduct, the actual cause of the additional disability or death was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable. 38 U.S.C. § 1151 (a); 38 C.F.R. §§ 3.361 (c), (d). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Id. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1). The Veteran contends that he has a respiratory disability due to a February 2013 parathyroid surgery to remove an adenoma. The Veteran’s VA treatment records show that he underwent a directed left parathyroidectomy to remove an adenoma in February 2013. In an April 2005 VA examination, it was noted that the Veteran had shortness of breath with heart palpitations and that he had developed this since 2001. While the physical examination showed normal lungs, pulmonary function tests showed borderline obstructive airway disease. In February 7, 2013 VA treatment records, it was noted that the Veteran’s respirations were even and unlabored and that he denied chest pain and shortness of breath. In the February 7, 2013 discharge note, the Veteran did not complain of difficulty breathing. In an April 2014 VA medical opinion, the examiner noted that the Veteran underwent a parathyroidectomy on February 7, 2013 and had made subsequent visits to the emergency department complaining of hoarseness, numbness, tingling, and some swallowing and breathing difficulties. The Veteran’s respiratory condition was “not well-described” in the records. The examiner noted that the Veteran had paralysis of a vocal cord on the left side which could cause some initial hoarseness. This was described as a known risk of parathyroidectomy and not due to negligent or wrongful medical treatment. The examiner further found that there should be no longer term respiratory condition associated with the paralysis of only one vocal cord. In a November 2014 notice of disagreement, the Veteran stated that his vocal cord was lacerated during surgery when they pulled out his breathing tube. In a September 2016 lay statement, the Veteran reported that after his parathyroid surgery, he could not “speak right” and was told that it would pass. A week or so later, he went to see a doctor and they noted that his left vocal cord was lacerated. He reported getting bad infections on the left side of his throat. In a December 2020 VA examination, the examiner conducted an in-person examination and reviewed the evidence of record. The Veteran reported that his claimed respiratory condition began in September 2001 during his deployment to Iraq when he woke up with heart palpitations and shortness of breath. From 2001 to 2005, he took high blood pressure medications to control the palpitations, but he still had palpitations and shortness of breath. The Veteran reported that his current symptoms included intermittent palpitations and increased shortness of breath since his left vocal cord was lacerated during parathyroid surgery. The examiner found that the Veteran did not now have or had ever been diagnosed with a respiratory condition. He also noted that the Veteran was not receiving treatment for a respiratory condition and his chest x-ray was negative. The contemporaneous chest radiology report showed that there was no chest abnormality. The examiner conducted PFT, but post-bronchodilator testing was not completed because pre-bronchodilator results were normal. The examiner found that there was no diagnosis of a respiratory disability as there were no findings, signs, and/or symptoms to support a diagnosis. He further noted that the Veteran denied a history of respiratory conditions and that he had provided sub-maximal effort during the PFT. PFT was possibly normal but with sub-maximal effort, and this did not affect or change the report. The examiner opined that it was less likely than not that the Veteran had an additional respiratory disability due to the February 2013 parathyroid surgery to remove adenoma. He also opined that as to each additional claimed respiratory disability due to the February 2013 surgery, it was less likely than not foreseeable and less likely than not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing treatment. In providing these opinions, the examiner noted that a September 2013 VA treatment record entitled “Intubation Warning,” in which it was reported that the Veteran had a difficult airway due to anterior larynx, vocal cord paralysis, and limited neck extension, and found that it was non-contributory to his claimed respiratory condition. The examiner further noted review of the evidence of record, to include a September 2013 medical note documenting a normal respiratory examination and no history of respiratory disease. The medical record did not reveal continuous ongoing medical treatment or aggravation of an acute or chronic respiratory condition from separation from service to present day. According to post-service VA treatment records, the Veteran generally denied shortness of breath and he had no respiratory abnormalities with unlabored breathing. He had occasional complaints of shortness of breath. In September 2005, the Veteran reported palpitations and occasional shortness of breath. In November 2018, the Veteran still had palpitations, but did not report shortness of breath. There were abnormal respiratory findings in August 2013, specifically shortness of breath with persistent talking since the parathyroidectomy. It was also noted that the Veteran had a history of difficult intubations in 2010 and January 2013. In a September 2013 “Intubation Warning,” it was noted that the Veteran had a difficult airway due to anterior larynx, vocal cord paralysis, and limited neck extension. In a contemporaneous September 2013 record, the Veteran denied shortness of breath and cough and he had a chest with normal symmetry, excursion, and respiratory effort. Based on the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to VA compensation under 38 U.S.C. § 1151 due to his February 2013 parathyroid surgery. Specifically, the Board finds that the preponderance of the evidence shows that the Veteran does not have an additional respiratory disability. The examiner based his opinion and finding on review of the medical record, to include the September 2013 “Intubation Warning,” and physical examination, to include a chest x-ray and PFT results. He also considered the Veteran’s lay statements as to his respiratory symptoms. As such, the Board finds that the December 2020 VA examination has great probative value in determining whether the Veteran has an additional respiratory disability due to the February 2013 parathyroid surgery. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran’s lay statements regarding his respiratory complaints after the February 2013 parathyroid surgery; however, he is not competent to determine whether there was any respiratory disability due to the parathyroid surgery. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran’s assertion that he developed a respiratory disability due to his surgery is also outweighed by the medical evidence of record. Therefore, the evidence shows that there was no additional respiratory disability incurred by the Veteran due to the February 2013 parathyroid surgery. As such, the first element of 38 U.S.C. § 1151 has not been met, and the remaining criteria need not be discussed. Given these facts, the Board concludes that the preponderance of the evidence is against entitlement to compensation under 38 U.S.C. § 1151 for a respiratory disability as a result of the February 2013 parathyroid surgery. The benefit-of-the doubt rule does not apply, and the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, Associate 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.