Citation Nr: 21026401 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-31 920 DATE: May 3, 2021 REMANDED Service connection for thyroid disease and residuals of thyroidectomy, to include as due to herbicide exposure, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for the residuals of a thyroidectomy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1967 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veteran's Law Judge in November 2018; a transcript of the hearing has been associated with the file. These matters were remanded in September 2019 for development, including obtaining a medical opinion in the service connection claim and additional documentation for the compensation claim. With regard to the service connection claim, the case now returns to the Board after satisfactory completion of the ordered development; therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). However, the RO did not fully comply with the Boards' remand directives regarding development of the 38 U.S.C. § 1151 claim. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. Stegall v. West, 1 Vet. App. 268, 271 (1998). Service connection for a thyroid condition The Veteran seeks service connection for a thyroid condition. Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Endocrinopathies, to include diseases of the thyroid, are considered a chronic disease among the listed conditions with a presumptive period of one year after separation from service. In a 1983 statement, the Veteran reported that he had been seen at the VA medical center (VAMC) in Jackson in March 1970, within a year of his discharge from active service. However, these VA records are not part of the claims file. Accordingly, a remand is required to secure potentially relevant VA records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Compensation under 38 U.S.C. § 1151 This issue was previously remanded for additional development to clarify the employment relationship between Dr. GDJ and VA, as well as details of the financial arrangement for the Veteran's thyroidectomy, which occurred at a non-VA facility. The Veteran contends that Dr. GDJ may be an employee of VA for purposes of compensation under 38 U.S.C. § 1151. In September 2020, the human resources office at the Jackson VAMC indicated that they did not have documents regarding a contractual arrangement between Dr. GDJ and VA. However, Dr. GDJ's curriculum vitae shows that she was appointed as a physician at the G.V. "Sonny" Montgomery VA Hospital from September 2009 to February 2013. Additionally, Dr. GDJ electronically signed a VA treatment record in May 2012. Her electronic signature states that she is a Staff Physician. The request to human resources only asked about contractual arrangements between Dr. GDJ and VA. This was inadequate to ascertain the nature and existence of a professional relationship. The RO also requested documents directly from Dr. GDJ. However, this request was confusingly worded and overbroad, asking for treatment records and documents related to her 2012 employment with the Jackson VAMC. Additional development is needed; accordingly, a remand is required. The September 2019 Board remand directed the RO to obtain all documents relating to the coordination, scheduling, and performance of the 2012 thyroidectomy. The Veteran's treatment records indicate that special funding was required (and ultimately approved) for the thyroidectomy to be performed at an outside facility. See April 30, 2012 Treatment Note. The claims file indicates that these records were requested from a unit that is solely responsible for paper charts not available in CAPRI. This single request to a department that does not handle these documents is inadequate. Therefore, a remand is warranted. Finally, the February 2021 VA examiner concluded that there was no negligence, lack of skill, carelessness or similar incidence of fault on the part of the VA attending personnel found, and that there was no evidence that additional disability resulted from a reasonably foreseeable event. This opinion, which was completed before necessary documentation regarding the status of Dr. GDJ was obtained, is inadequate as it is based on unestablished factual premises. The family nurse practitioner who rendered the opinion assumed that Dr. GDJ was not an employee of the VA, a fact which has not yet been established. Additionally, the examiner fundamentally misunderstood the Veteran's contentions in this case when he concluded that the Veteran's vocal cord paralysis had not been worsened by VA treatment. These erroneous assumptions render the entire opinion inadequate. Addendum opinions and rationales are required. The matters are REMANDED for the following action: 1. Associate with the file all VA treatment records prior to 2003, including records of treatment in 1970 at the Jackson VAMC. Archived files must be requested from the appropriate custodian. 2. Obtain documentation to show whether Dr. GDJ was a Department employee as defined in 38 C.F.R. § 3.361(e). Such documents may include contracts, memorandums of understanding, professional appointment agreements, security badge paperwork and records of payments. Dr. GDJ should be contacted and asked about the nature of her appointment at the Jackson VAMC was, including whether she received compensation for her work there, and whether her work there was performed pursuant toa written agreement (whether or not she received compensation). She should be asked with which office at Jackson VAMC she made such agreements. The RO should contact the Office of the Chief of Staff at the Jackson VAMC and request documentation of Dr. GDJ's professional association with the hospital, and the dates of that association. Inquire as to what privileges and responsibilities she was given due to her appointment at the Jackson VAMC. Contact the Badge Office at the Jackson VAMC and request documentation of any PIV cards, VA ID badges or other security credentials issued to Dr. GDJ. Specifically request the name and affiliation of the sponsoring official. 3. Obtain documentation to show whether the July 2012 surgery at issue was performed under a contract made pursuant to 38 U.S.C. § 1703, or provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. Such documents may include referral documents, invoices received from University Medical Center Hospital or payments made to University Medical Center Hospital for services rendered. This documentation includes, but is not limited to contracts and memorandums of understanding. The Billing Office and Business Office at Jackson VAMC should be contacted with this request. 4. Obtain an addendum opinion from a clinician with expertise in endocrinology and endocrine surgery to review the VA treatment of the Veteran's multinodular goiter with thyrotoxicosis. Referral to an outside consultant may be necessary. The qualifications of the examiner in endocrinology and endocrine surgery must be specified. Provision of a new physical examination and any testing, studies or medical imaging is at the discretion of the reviewer. The electronic claims file must be made available to the examiner for review and the review must reflect that such review has been accomplished. For purposes of this review, the reviewer will assume that Dr. GDJ was a VA employee and that the July 2012 thyroidectomy was performed at a VA facility. The reviewer must clearly identify any additional disabilities that are at least as likely as not (50 percent probability or greater) caused or aggravated by the VA's treatment of the Veteran's thyroid condition, including the 2012 thyroidectomy, to include discussion of the Veteran's vocal cord paralysis and shortness of breath. For each additional disability identified, the reviewer will opine as to whether such is at least as likely as not (50 percent probability or greater) the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing treatment, or reasonably unforeseeable. The reviewer must specifically address the theory that the Veteran's vocal cord paralysis and shortness of breath was caused by carelessness, negligence, lack of skill or similar incidence of fault on the part of Dr. GDJ in performing the July 2012 thyroidectomy, including not visualizing the left vocal cords before proceeding with the surgery. A complete rationale is requested for all opinions provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.