Citation Nr: 1032089 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 08-09 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 for additional neurological disability of the lower extremities, claimed to be the result of a January 2005 VA transurethral resection of the prostate (TURP) surgical procedure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Marine Corps from June 1939 to September 1945; he is a survivor of the December 1941 attack on Pearl Harbor. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) that, in part, denied the appellant's claim of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for bilateral lower extremity disability claimed to be the result of VA medical treatment rendered in connection with a transurethral resection of the prostate (TURP) surgery performed at a VA medical center (VAMC) in January 2005. In his March 2008 VA Form 9, the appellant submitted a written request for a Travel Board hearing. He was subsequently scheduled for a Travel Board hearing on January 6, 2010, at the Albuquerque RO. A December 2009 letter to the RO from the appellant's representative stated that he had told him he would be unable to report for that hearing because he was in a wheelchair and did not have a ride. The Veteran failed to report for his January 2010 Travel Board hearing. Neither he nor his representative asked that the hearing be rescheduled, and there has been no indication that the appellant would report for a hearing. Therefore, the request for a Board hearing is deemed withdrawn and the Board will continue with the appeal. See 38 C.F.R. § 20.704(d). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability has been raised by the record, but apparently has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the TDIU claim, and that issue is referred to the AOJ for appropriate action. 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 A determination has been made that additional development is necessary with respect to the issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. The appellant contends that his spinal anesthesia was not properly administered when he underwent his TURP surgery in January 2005, and that this led to spinal nerve damage. The appellant also contends that his currently diagnosed bilateral leg neuropathy was caused either by the anesthesia or by the TURP surgery itself and that he is therefore entitled to benefits under 38 U.S.C.A. § 1151 for these additional disabilities. The appellant's 38 U.S.C.A. § 1151 claim was filed in February 2006. Effective for all claims filed on or after October 1, 1997, 38 U.S.C.A. § 1151 provides that compensation under chapter 11 of title 38 of the United States Code shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. For the purposes of this section, a disability is a qualifying additional disability if the disability is not the result of the veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished to a veteran under any law administered by the Secretary of VA, 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 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 . . . . 38 U.S.C.A. § 1151 (West 2002 & Supp. 2009). Review of the medical evidence of record reveals that the appellant was treated at a VA facility for complaints of low back pain radiating into his lower extremities in 1980. The January 2005 pre-procedure checklist states that the appellant ambulated with a cane. A post-surgery note states that the appellant had "a difficult time with the spinal anesthetic wearing off" and therefore was kept overnight instead of being discharged on January 4, 2005. The next morning, the appellant was noted to be ambulating well and without assistance. A March 2006 VA neurology note indicates that the appellant had needed two days to recover from the January spinal anesthetic and regain his ability to walk. The appellant reported that he felt that his legs had been weak since then. In July 2005, the appellant reported that his legs were not back to normal after the surgery; he said that he had to use a crutch in the morning and a cane during the day. Electrodiagnostic testing was accomplished that same month and revealed a mixed sensory and motor peripheral polyneuropathy that was moderately severe and of unknown etiology. An August 2005 MRI of the appellant's lumbar spine revealed extraordinarily severe spinal canal stenosis at L3/4 and L4/5, along with severe spinal canal stenosis at L5/S1. An August 2007 VA outpatient treatment note indicates that the appellant reported that he had been poisoned by penta- chlorophenol (a neurotoxin) in 1964, when he worked for the Forest Service. In this case, the RO has not addressed the status of the appellant's neurologic manifestations of his lumbar spine problems prior to the January 2005 TURP procedure. In fact, no VA treatment records dated after December 1980 and before July 2004 have been included in the evidence of record. VA is, thus, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore in order to fulfill the duty to assist, all of the appellant's private and VA orthopedic and neurologic medical treatment records from 1981 onward, not currently of record, should be obtained and associated with the claims file. Furthermore, the RO did not obtain a medical opinion, and pertinent medical questions required to be answered to adjudicate his 38 U.S.C.A. § 1151 claim have not been answered. See 38 C.F.R. § 3.159(c)(4) (2008); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent medical evidence of record on the question of whether the appellant has additional disability that is causally related to the January 2005 TURP procedure (including by way of aggravation), and if there is, whether VA care was negligent or otherwise at fault. There is no competent medical evidence on the question of whether the appellant was clearly informed that nerve damage was an attendant risk of his January 2005 TURP surgery, or whether development of neuropathy in the lower extremities after/during TURP surgery is an event not reasonably foreseeable. Remand for a a VA medical opinion is accordingly also required. Because the concept of foreseeability in the VA claims process for section 1151 claims is complex, the Board will reiterate that, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. As to the latter, underlined criterion, although this case is not a medical malpractice action seeking money for tort damages, but rather a claim for monthly VA disability benefits, we note that the distinction between foreseeability and nonforeseeability is analogous to the concept in such actions. In other words, if medical treatment presents the risk of possible, but rare, adverse results or side-effects known to the provider, then such an outcome is foreseeable, even though unlikely. In such an instance, the patient, by giving his informed consent to the treatment, accepts that the unwanted result may occur even if the treatment is properly administered. On the other hand, if a result occurs which was not foreseeable by the provider or the patient, then the law authorizes payment of benefits under 38 U.S.C.A. § 1151 in this type of claim. Under VA regulations, the question of whether proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is 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. 38 C.F.R. § 3.361(d)(2). In a January 2010 written statement, the appellant's representative contended that the RO committed error insofar as it did not request VA medical quality assurance records pertaining to the appellant's January 2005 TURP surgery in connection with his claim. VA's quality assurance program is congressionally mandated, and generally most quality assurance records are confidential and privileged and may not be disclosed for purposes of VA claims adjudication. See 38 U.S.C.A. § 5705; 38 C.F.R. §§ 17.500, 17.501; see also Norvell v. Peak, 22 Vet. App. 194 (2008). With some exceptions, such records and documents created by VA as part of a quality assurance program may not be disclosed to any person or entity. Hood v. Shinseki, 23 Vet. App. 295 (2009). Regulations prescribed by the Secretary prevent the disclosure of reports of special incidents (VA Form 10-2633 or similar forms) and follow-up documents, unless developed during or as a result of a Board of Investigation. See 38 C.F.R. § 17.501(a)(1)(xii). Further, the Board notes that the Hood decision raises the issue of whether it is appropriate for VA, particularly the Veterans Benefit Administration (VBA), to preliminarily review medical quality assurance records to determine whether these records should be released to the Veteran. On remand, the AMC/RO should attempt to obtain any records relevant to the appellant's claim, but only to the extent allowed by applicable law and regulations. Accordingly, the Board has attempted to address the concerns of the United States Court of Appeals for Veterans Claims (Court) as expressed in the Hood case in the remand directions below. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, to ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The AMC/RO must satisfy itself that all notification and development action required by 38 U.S.C. A. § § 5102, 5103, and 5103A (West 2002 & Supp. 2009), the implementing regulations found at 38 C.F.R. § 3.159 (2009) and any other applicable legal precedent has been completed. 2. Contact the appellant to obtain the names and addresses of all private, VA or other government health care providers and treatment centers where he has been treated for any lumbar spine and/or lower extremity condition since January 1981. After securing the necessary release(s), obtain those records not already in the claims file. These records should be associated with the claims file, with documentation of any inability to secure them. The appellant and his representative should also be informed of any negative results. 3. Attempt to obtain any VA quality assurance records relevant to the appellant's claim, but only to that extent allowed under applicable law and regulations with the performance of any and all follow-up as necessary, and with documentation of negative results. In particular, determine whether VA medical or adjudicative personnel may permissibly review or associate with the claims file any records of VA quality assurance pertaining to the appellant's January 2005 TURP procedure, or, rather, whether such records are unavailable or legally privileged to such an extent that they are protected from any and all review by VA personnel in connection with a claim for VA compensation benefits. If it is found that the records may not be released but they may be reviewed, the AMC/RO should indicate whether a staff member or physician might be permitted to review the pertinent records of quality assurance and state whether there is any indication in those records of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 4. After completing any additional notification and/or development action deemed warranted by the record, arrange for review of the appellant's records by a VA neurologist, preferably one who has not examined the appellant in the past. Based upon review of the complete record on appeal, the reviewer should furnish opinions concerning the following: (a) What, if any, were the Veteran's manifestations of lower extremity neurologic pathology present prior to January 2005? (b) What is the date of the first recorded manifestations of right or left lower extremity radiculopathy or neuropathy? (c) What is the etiology of the Veteran's current right and left lower extremity neurological pathology? Is his currently claimed lower extremity neurologic pathology etiologically related to any aspect of the TURP procedure, or is the claimed leg pathology more likely due to some other cause or causes? Explain the clinical significance all EMG/NCS and imaging reports of record as they relate to the above questions. (d) Did the appellant develop any additional identifiable right or left lower extremity pathology due to any VA treatment rendered in connection with the January 2005 TURP procedure, including the administration of a spinal anesthetic? Discuss the role of the appellant's concurrent medical conditions (such as his lumbar spine stenosis) in the etiology and clinical course of the right and left lower extremity neurological conditions. (e) Is any portion of the appellant's current lower extremity polyneuropathy the result of some aggravation of a pre-existing neurological disorder, if any, that occurred in connection with the TURP procedure? (f) Was the course of treatment the appellant received in connection with the January 2005 TURP procedure in any way careless, negligent, lacking in proper skill, or reflective of 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 - particularly vis-à-vis the development of any additional disability in the right or left lower extremity? 4. In addition, the reviewer should address the questions of whether the Veteran was informed of the possibility of nerve damage and whether any increase in the appellant's right or left lower extremity neurologic pathology was the result of an event not reasonably foreseeable. The reviewer should discuss whether nerve damage during a TURP procedure is an event not reasonably foreseeable, and whether the way the Veteran's claimed right and left lower extremity polyneuropathy developed was an event not reasonably foreseeable. In this regard, the reviewer is referred to the discussion of foreseeability in pages 5-6, above. 5. As to each of the above questions, the reviewer should state the conclusion on an at least as likely as not basis (i.e., to at least a 50-50 degree of probability). The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the appellant's lower extremity neuropathy. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. If a physical examination or additional history is needed before an opinion can be rendered, the AMC/RO should arrange for said examination. 7. After all appropriate development has been accomplished, the AMC/RO should consider all of the evidence of record and re- adjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC) and given an appropriate period of time for response. 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). The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2009). (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).