Citation Nr: 0813509 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-08 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for an above-the-left-knee amputation. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from May 1961 to January 1962. This appeal to the Board of Veterans' Appeals (Board) is from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2007, to support his claim, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). Because the § 1151 claim must be further developed, the Board is remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The veteran contends he is entitled to § 1151 compensation because his above-the-left-knee amputation could have been avoided if his VA doctors had the means to detect his aortofemoral block sooner than just before his surgery. He says that he had been an active VA patient for years prior to the January 2003 amputation and, therefore, that his VA doctors should have detected and diagnosed the aortofemoral block affecting the circulation in his legs far sooner, such that the amputation could have been averted because corrective action could have been taken. In pertinent part, 38 U.S.C.A. § 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service connected. A qualifying additional disability is one in which 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 the veteran; and, the proximate cause of the disability is the result of 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 was the result of an event not reasonably foreseeable. See also 38 C.F.R. § 3.358. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2007). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2007). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2007). In this case, the veteran's claim for compensation under § 1151 was filed after October 1, 1997; thus, 38 C.F.R. § 3.361 applies. According to 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. Here, given the veteran's assertions and the evidence concerning his January 2003 amputation, the Board finds that a VA examination and medical opinion are needed to properly adjudicate his § 1151 claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, at the time of his May 2007 Travel Board hearing, the veteran's file was to be held in abeyance for 60 days while he obtained additional evidence. 38 C.F.R. § 20.709. Subsequent to the expiration of the 60-day period, in September 2007, VA received copies of treatment records from the Tampa VA Medical Center (VAMC). This evidence is pertinent to the veteran's claim because it concerns the treatment he received from VA prior to his January 2003 amputation, especially since he alleges his VA doctors should have been aware of his condition prior to the events that culminated in this amputation. Inasmuch as VA medical records are in the agency's constructive, if not actual, possession and must be obtained if the material could be determinative of the claim, the Board accepts this additional evidence notwithstanding the expiration of the 60-day period in which the file was to be held open for its submission. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, concerning this additional evidence received in September 2007, the veteran specifically declined to waive his right to have the RO initially consider this additional evidence. In this regard, when the Board receives pertinent evidence that was not initially considered by the RO, generally the evidence must be referred to the RO for review. 38 C.F.R. §§ 20.800, 20.1304(c). An exception is made if the veteran waives this procedural right or if the Board determines the requested benefit to which the evidence relates may be fully granted on appeal without such referral. Id. See also Disabled American Veterans v. Sec'y of Veteran's Affairs, 327 F.3d 1339, 1346 (Fed. Cir. 2003). The waiver must be in writing or, if a hearing on appeal is conducted, must be formally and clearly entered on the record orally at the time of the hearing. Id. Evidence is not pertinent if it does not relate to or have a bearing on the issue on appeal. Id. Accordingly, inasmuch as this additional evidence is pertinent because it reflects VA treatment prior to the veteran's above-the-left-knee amputation, and he has not waived his right to have this additional evidence initially considered by the RO, a remand is required so the RO can consider this additional evidence in the first instance. Accordingly, this case is REMANDED for the following development and consideration: 1. Schedule the veteran for a VA examination by an appropriate specialist. The claims file must be made available to, and reviewed by, the examiner for the veteran's pertinent medical and other history, including, in particular, the records of the treatment he received from VA prior to his January 2003 above-the- left-knee amputation. After a complete examination and review of the file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) the veteran has additional disability as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or due to an event not reasonably foreseeable. In providing this opinion, the designated physician should comment on whether, during the years immediately preceding and in performing the January 2003 surgery, VA medical staff failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated. 2. After reviewing the additional records submitted in September 2007 and the VA medical opinion obtained on remand, readjudicate the § 1151 claim (including considering 38 C.F.R. §§ 3.361 and 17.32). If this claim is not granted to the veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).