Citation Nr: 0814609 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-19 790 ) 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 left-sided facial nerve iatrogenic damage after the resection of a left parotid enlargement REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from January 1976 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified at a hearing before the undersigned veterans law judge in March 2008. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran contends that a left superficial parotidectomy and cranial nerve VII repair surgery that was performed at the VA Medical Center in Gainesville, Florida in June 1987 resulted in left-sided facial nerve damage. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. Effective September 2, 2004, 38 C.F.R. § 3.361 was promulgated for claims filed on or after October 1, 1997. Claims based on additional disability due to hospital care, medical or surgical treatment must meet certain causation requirements. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance 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. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361(d). 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) (2007). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment; the expected benefits; reasonably foreseeable associated risks, complications, or side effects; reasonable and available alternatives; and anticipated results if nothing is done. See 38 C.F.R. § 17.32(c) (2007). In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that: (i) Require the use of sedation; (ii) Require anesthesia or narcotic analgesia; (iii) Are considered to produce significant discomfort to the patient; (iv) Have a significant risk of complication or morbidity; (v) Require injections of any substance into a joint space or body cavity; or (vi) Involve testing for Human Immunodeficiency Virus (HIV). The informed consent process, including signed consent form, must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d) (2007). Medical records from the VA Medical Center in Gainesville, Florida show that the veteran underwent surgery in May 1987 for left superficial parotidectomy and cranial nerve VII repair. At the hearing in March 2008, the veteran alleged that he did not give informed consent for the May 1987 surgery. A review of the claims file indicates that there is one consent form of record, dated in December 1984 and signed by the veteran. The procedures described therein include "extraction of third molar teeth" and "possible excisional biopsy of left lymph node." A consent form for the May 1987 surgery is not of record. A review of the claims file indicates that the RO made several attempts to obtain consent forms. In February 2002, the RO requested the veteran's medical records and informed consent, or SF 522, from the VA Medical Center in Gainesville, Florida. A response received in February 2003 indicated that the veteran's records were located at the VA Healthcare Center in Orlando, Florida. The RO subsequently requested the veteran's medical records and consent forms from the VA Orlando Healthcare Center in November 2003. In December 2003, the Orlando Healthcare Center provided records of the RO received records of the veteran's treatment, including the May 1987 surgery. These records did not include a copy of a consent form signed in conjunction with the May 1987 surgery. The Orlando Healthcare Center did not indicate whether such consent forms were determined to be unavailable. The Board finds that a remand is necessary to make an additional effort to obtain a copy of the consent for the May 1987 surgery. The duty to assist includes providing a medical examination or obtaining a medical opinion when such an opinion is necessary to decide a claim. A medical opinion and addendum opinion were obtained in July 2004. The July 2004 examination report does not indicate that the examining physician addressed the issue of informed consent. On remand the examiner who provided the July 2004 opinion should be requested to review any consent forms that are obtained, including the one already in evidence, and to provide an addendum as to whether the veteran was adequately informed of the foreseeable risks of the May 1987 surgery. Accordingly, the case is REMANDED for the following action: 1. Request all informed consent forms associated with the veteran's May 1987 surgery. The records should be requested from both the Orlando VA Healthcare Center and the VA Medical Center in Gainesville VAMC. All requests and responses should be documented in the claims file. If the records are determined to be unavailable, the AMC/ RO should request a written response indicating that they are unavailable and the reason for such unavailability. 2. Thereafter, an addendum should be obtained from the VA physician who provided the July 2004 VA medical opinion. The addendum should discuss whether the veteran was informed prior to the surgery or the ordinary risk factors of the surgery and whether the left-sided facial nerve damage was a risk that a reasonable health care provider would have disclosed to the veteran in connection with informed consent for surgery for resection of a left parotid enlargement. The examiner should discuss the December 1984 consent form, as well as any other consent forms obtained. If the examiner who provided the July 2004 VA examination is not available, an opinion should be obtained from another physician. 3. After the completion of the development requested above, the claim on appeal should be readjudicated. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and should be afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2007). _________________________________________________ V. L. JORDAN 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).