Citation Nr: 1126512 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 04-03 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for nerve damage of the right leg. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1964 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2008, the Veteran presented sworn testimony during a personal hearing in Portland, Oregon, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims folder. In a November 2008 decision, the Board denied the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for nerve damage of the right leg. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In June 2010, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand. An Order of the Court dated June 14, 2010 granted the motion, partially vacated the Board's November 2008 decision, and remanded the case to the Board. In a January 2011 letter, the Board provided the Veteran and his representative the opportunity to submit additional evidence and argument in support of the appeal. In response to the Board's letter, the Veteran's representative submitted further argument in support of the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. Issue not on appeal In the Joint Motion for Partial Remand, the Veteran, through his representative, explicitly abandoned (withdrew) his appeal as to the claim of entitlement to nonservice-connected disability pension benefits. Accordingly, the Board's November 2008 decision as to that issue is final. See 38 C.F.R. § 20.1100 (2010). REMAND The June 2010 Joint Motion for Partial Remand, as adopted by the Court's June 2010 Order, indicated that in the November 2008 decision the Board failed to provide thorough reasons or bases in explaining its findings of fact and conclusions of law. In particular, the parties stated that the Board did not "adequately address whether there was substantial compliance with the requirements of 38 C.F.R. § 17.32" regarding "whether Appellant provided informed consent for the procedure 'left VIM thalamotomy' on June 18, 2003." The parties noted that an 'Anesthesia Care Signature Informed Consent' form dated June 18, 2003, signed by the Veteran, is contained in the claims folder; however, a separate 'Surgical Signature Informed Consent' form dated May 1, 2003 does not contain the Veteran's signature. The Board observes that in the July 2007 VA examination report, the examiner noted that "CPRS notes indicate that informed consent was signed by the patient before the surgery." No such treatment notes appear to have been associated with the claims folder. As such, remand is necessary to obtain further evidence pertaining to the Veteran's informed consent as to the June 2003 thalamotomy procedure. Accordingly, the case is REMANDED for the following action: 1. VBA should contact the Portland VAMC and any other appropriate source to request any and all consent forms executed for the Veteran's June 2003 left VIM thalamotomy procedure. VBA should also ensure that the Veteran's complete MAS file is obtained and associated with the Veteran's claims folders. VBA should further ensure that all records including the Veteran's complete treatment records pertaining to the Veteran's June 2003 left VIM thalamotomy procedure as well as those dating from May 2003 through July 2003 are obtained and associated with the Veteran's VA claims folder. VBA should make certain that all CRPS records from this time period have been printed and associated with the claims folder. Efforts to obtain the requested records should be thoroughly documented and ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. All actions to obtain the requested records should be fully documented in the claims folders. Because these are Federal records, if said records cannot be located or no such records exist, a Memorandum of Unavailability should be prepared and the Veteran should be provided with a copy of it. 2. VBA should request that the Veteran identify any additional records concerning his pending claim that may not already be associated with the claims folder. The Veteran should provide all necessary written releases for any identified records. These records should thereafter be obtained and associated with the claims file. If any these records cannot be obtained, the VAMC should notify the Veteran of such and describe the efforts used in requesting them. 3. Following any further development that VBA deems necessary, including an updated VA medical opinion as needed, the Veteran's claim should then be readjudicated. If any benefit sought on appeal remains denied, the VAMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2010). _________________________________________________ John E. Ormond, Jr. 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).