Citation Nr: 1100294 Decision Date: 01/04/11 Archive Date: 01/11/11 DOCKET NO. 09-23 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for right testicular infarction and special monthly compensation for loss of use of a creative organ, due to hernia repair surgery performed at a VA facility in January 2008. ATTORNEY FOR THE BOARD Emily B. Joyner, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2010). The Veteran asserts that he is entitled to compensation under 38 U.S.C.A. § 1151 for right testicular infarction and special monthly compensation for loss of use of a creative organ based upon the right inguinal hernia surgery repair performed by VA on January 11, 2008. The basis of the Veteran's claim is that, after the surgical repair of his right inguinal hernia was performed at a VA medical facility in January 2008, he suffered a right testicular infarction, which resulted in a nonfunctional right testicle (thus, loss of use of a creative organ). In his notice of disagreement, he stated that he was never told of the possibility of the traumatic complication of loss of a testicle as a result of the surgery. He asserts that had he been so informed, he would not have consented to the surgery, and he would have sought another facility to do the surgery. He states that although he signed an electronic consent form prior to surgery, he was not told of the possibility that he could lose his testicle as a result of the surgery. Further, he claims that he was never offered a hard copy of the consent form, and that he did not even know that he was signing a consent form. A December 2007 VA treatment record notes that the Veteran had a right inguinal hernia repair surgery done in Japan in 2004. However, he felt that the hernia repair never healed, and a bulge had been present ever since. He reported pain with pressure, with lifting heavy objects, and with straining. The bulge was non-reducible. It was noted that he wished to have operative intervention to prevent possible future complications. He was noted to be scheduled for elective repair in early January. The Veteran underwent right inguinal hernia repair surgery on January 11, 2008. The January 11, 2008, operative report notes that the Veteran was taken to the operative room. The site of the surgery was verified, the consent was verified, and the Veteran was noted to have received preoperative antibiotics and subcutaneous Heparin. He was noted to have tolerated the procedure well. A January 14, 2008, urology clinic note indicates that the Veteran developed acute onset of right testicular pain. There was a lot of swelling and ecchymosis of the scrotum. Testicular ultrasound showed no blood flow to the testes and heterogeneous appearing right testicle, with normal left testicle. It was noted that the Veteran was told that the right testicle was nonviable, and it would not be salvageable with surgery with ischemia of at least 48 hours. With respect to the informed consent issue, the Board notes that a January 11, 2008, VA surgery attending note indicates that repair of the right inguinal hernia may be difficult because of obesity and the recurrent nature of the lesion. It was also noted that its anatomy would not be understood until exploration. A January 11, 2008, pre-operative note/anesthesiology attending note indicates that the patient was examined and the chart was reviewed. It was specifically noted that the risks and benefits were discussed with the patient. It was noted that the patient understood, and wished to proceed with the scheduled surgery and anesthesia plan. Moreover, a pre-operative note from January 11, 2008 indicates that "[i]nformed consent was obtained 6:57 AM on January 11, 2008. The full consent document can be accessed through Vista Imaging." No informed consent document is contained in the record. Because the Veteran claims not to have been informed about the possibility of losing a testicle as a result of the procedure, the Board is of the opinion that a copy of the signed informed consent document should be obtained and placed in the record. Therefore, the case is remanded to obtain this document. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain a copy of the January 11, 2008, signed informed consent document through Vista Imaging and associate it with the claims file. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 3. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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 purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 2010). _________________________________________________ DEMETRIOS ORFANOUDIS Acting 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) (2010).