Citation Nr: 0116201 Decision Date: 06/14/01 Archive Date: 06/19/01 DOCKET NO. 99-21 894A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991) for residuals of a right kidney removal. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Johnson, Counsel INTRODUCTION The veteran served on active duty from September 1973 to September 1976. This matter came to the Board of Veterans' Appeals (Board) from a February 1998 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In February 2001, the veteran testified before the undersigned, and presented additional evidence with the proper waiver of Agency of Original Jurisdiction consideration as per 38 C.F.R. § 20.1304 (2000). On appeal the appellant has raised the issues of entitlement to service connection for hypertension secondary to residuals of a right radical nephrectomy, entitlement to a temporary total disability evaluation based on the provisions of 38 C.F.R. § 4.30 (2000) for convalescence following a February 1997 surgical procedure, and entitlement to an increased evaluation for Hepatitis C. These issues, however, are not currently developed or certified for appellate review. Accordingly, these matters are referred to the RO for appropriate consideration. REMAND The veteran is claiming entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a right kidney removal, to include post operative residuals of a nephrectomy scar, excessive voiding, and anxiety. As this claim was initially presented to VA in August 1997, a showing of negligence on the part of VA employees is not required. Cf. 38 U.S.C.A. § 1151 (West 1991) and 38 U.S.C.A. § 1151 (West Supp. 2000). Factually, the appellant was seen by VA in January 1997 for right upper quadrant pain. Ultrasound studies of the gallbladder revealed a renal mass, and a computerized tomography scan showed a four to five centimeter solid mass in the right kidney. Following a January 1997 urological consult an assessment of a probable renal tumor was entered. Renal exploration and a probable radical nephrectomy were planned. In February 1997, the veteran was admitted to the Clarksburg, West Virginia VA Medical Center for surgery. Prior to the surgery the appellant "requested" a "right radical nephrectomy," which he acknowledged included an "incision in (his) flank and removal of (the) right kidney." On February 25, 1997, the appellant underwent a right radical nephrectomy. Pathology studies at the medical center revealed a renal cell tumor with granular/oncocytoid features. The case was forwarded to the Armed Forces Institute of Pathology who diagnosed an oncocytoma in March 1997. An oncocytoma is a "Hürthle cell tumor." "Such tumors are usually benign (Hürthle cell adenoma) but on occasion may be locally invasive or may rarely metastasize." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 921, 1411 (26th ed. 1985). The veteran contends that he consented to the nephrectomy because he was told he had renal carcinoma. He therefore asserts that it was negligent for VA to remove his entire right kidney without first performing a frozen section during the procedure to determine whether the kidney was actually cancerous. To support this position the appellant has submitted a January 2001 opinion from Craig N. Bash, M.D., who opined that VA was negligent in not conducting a pre-op magnetic resonance imaging scan to evaluate the entire kidney, that VA was negligent for not performing a frozen section during the operative procedure, and that VA was negligent for failing to perform a nephron sparing partial nephrectomy. As noted above, because the veteran filed his claim in August 1997, he is not subject to the higher evidentiary standard which necessitates a showing of negligence. That fact notwithstanding, the Board finds that further development is in order prior to any final decision. In this regard, the veteran testified before the undersigned in February 2001 that he was pursuing a claim against the United States pursuant to the provisions of the Federal Torts Claims Act, 28 U.S.C. § 1346. No records pertaining to this claim, or any settlement agreements are included in the claims file. As these records may provide additional pertinent evidence further development is in order. See generally Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Secondly, the Board notes that while copies of many VA records have been added to the claims file, all of the records pertaining to the veteran's 1997 surgery do not appear to be included. Accordingly, the RO should contact the Clarksburg, West Virginia VA Medical Center and conduct further development. Finally, the Board notes that it may not exercise its own medical judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, after completion of the foregoing it would be beneficial to have the entire file reviewed by a board certified nephrologist and a board certified urologist at a VA medical center other than the Clarksburg facility in order to obtain expert opinions for use in this case. Therefore, this case must be REMANDED for the following action: 1. The RO should contact the veteran and obtain the names and addresses of all medical care providers who have treated him for any complaints referable to post operative residuals of a right nephrectomy, to include a nephrectomy scar, excessive voiding, and anxiety. Thereafter, the RO should attempt to obtain copies of all records which are not currently available from identified treatment sources. This should include securing a complete set of records (i.e. nursing notes, doctor's notes, laboratory findings, etc.) from the appellant's February 25 to March 1, 1997 hospitalization at the Clarksburg, West Virginia VA Medical Center. If, after making reasonable efforts to obtain any named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The RO is reminded that under the Veterans Claims Assistance Act of 2000 continued and repeated efforts to secure government records are required until such efforts are shown to be futile. The veteran must then be given an opportunity to respond. 2. The RO should contact the VA District Counsel which serves the Clarksburg, West Virginia Medical Center and secure photocopies of any medical records involved in the appellant's current suit against the United States under the Federal Torts Claims Act. The assistance of the local United States Attorney is to be secured if necessary. If, after making reasonable efforts to obtain any named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The appellant should then be given a reasonable period of time within which to respond. 3. Thereafter, the claims folders should be forwarded to a team consisting of a board certified nephrologist and a board certified urologist for review and comment. To avoid the appearance of any conflict of interest these examiners must NOT be affiliated with the VA Medical Center in Clarksburg, West Virginia. Following their review these examiners must offer opinions on the following questions: ? Is it at least as likely as not that the veteran has additional permanent disability following the February 25, 1997 right radical nephrectomy that he would not have if he had not undergone the procedure? ? Is it at least as likely as not that the veteran has additional permanent disability following the February 25, 1997 right radical nephrectomy that he would not have if he had undergone a nephron sparing partial nephrectomy? ? Is it at least as likely as not that the better medical practice would have been to delay any nephrectomy until a pre-op renal magnetic resonance imaging scan was first secured? ? Is it at least as likely as not that the better medical practice would have been to secure a frozen section first before carrying through with a complete radical nephrectomy? ? Is it at least as likely as not that the better medical practice would have been to perform a nephron sparing partial nephrectomy? The examiners are reminded that a showing of negligence is not necessary in this case. If any opinion requested cannot be provided that fact must be noted an explanation why not provided. A complete rationale for all opinions expressed must be provided. The report should be typed. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions and all notification and development action required by the Veterans Claims Assistance Act have been conducted and completed in full. If any development is incomplete, including if the requested opinions do not include the requested data, appropriate corrective action is to be taken. 5. The veteran is hereby notified that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for any scheduled VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2000). In the event that the veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, the RO should again review the veteran's claim. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). DEREK R. BROWN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).