Citation Nr: 1115093 Decision Date: 04/18/11 Archive Date: 05/04/11 DOCKET NO. 09-23 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for VA medical treatment in October 2005, including residuals of excision of a right supraclavicular lipoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from July 1979 to July 1983 and from January 1989 to November 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain VA medical records and an additional medical examination. Here, the Veteran asserts entitlement to compensation for residuals of an excision of a right supraclavicular lipoma, to include neuropathic pain of the area, painful scar, and numbness of the right upper extremity. She also alleges that the lipoma was not actually removed. When there is no willful misconduct by a veteran, disability resulting from VA hospital care is compensated in the same manner as if service-connected, if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event which is not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault in furnishing treatment proximately caused additional disability or death, there must be 1) actual causation and not just additional disability, continuance or natural progress of a disease or injury (unless such progress was due to a failure to timely diagnose or properly treat the disease or injury), or failure of the veteran to follow medical instructions, and 2) either VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished treatment without the appropriate informed consent. 38 C.F.R. §§ 3.361(c), (d), 17.32 (2010). First, remand is required to obtain VA medical records. Where VA medical treatment records are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such VA records, because VA is deemed to have constructive knowledge of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). At the time of the January 2010 Board hearing, the most recent VA treatment records associated with the claims file were from April 2009. At the hearing, the Veteran testified that in August and October 2009 she saw her VA physician regarding her right supraclavicular lipoma excision. Sometime in November 2010, the Veteran submitted additional VA records. Although one record, a July 2010 magnetic resonance imaging (MRI) report, is more recent than April 2009, the other records are dated in 2008 and prior. Additionally, as discussed below, there may be additional records related to neurological testing that should be obtained. Accordingly, remand is required to obtain all VA medical records after April 2009. Second, remand is required for RO consideration of newly submitted evidence. Additional pertinent evidence received by the Board that has not already been considered by the RO must be referred to the RO for consideration unless there has been a waiver of such consideration. 38 C.F.R. § 20.1304(c) (2010) As noted above, sometime after November 2010, the Veteran sent in additional pertinent evidence, including a lay statement, VA medical records, and private medical records. She did not submit a waiver of RO adjudication. Accordingly, remand is required for initial RO consideration. Third, remand is required to obtain an addendum to the February 2009 VA medical examination report for purposes of clarifying that opinion and so that it may take into account any additional records obtained. "[W]here an examiner specifically identifies additional information that would facilitate a more conclusive opinion, the duty to assist requires that VA at least investigate the feasibility of providing that information." Jones v. Shinseki, 23 Vet. App. 382, 388 (2010). Furthermore, a probative examination occurs only when the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As noted above, the Veteran asserts entitlement to compensation for VA medical treatment, specifically for residuals of an excision of a right supraclavicular lipoma, to include neuropathic pain of the area, painful scar, numbness of the right upper extremity. She also alleges that the lipoma was not actually removed. In September 2005, the Veteran presented at the VA with new onset of a right supraclavicular node of one month. On October 11, 2005, a biopsy was conducted. The diagnosis was lipoma with small reactive lymph node. On October 14, 2005, the Veteran underwent excision of the right supraclavicular mass. The Veteran was seen at VA on October 27th. She reported a large amount of swelling, pain, paresthesia, numbness, and a weeping wound. In November 2005, the Veteran reported numbness and swelling at the surgical site. The VA examiner stated that he informed the Veteran that the swelling should resolve in two months, the scar tissue would soften over time, and that if the neurological complaints did not resolve in six months, to return. In May and December 2006 VA records, the Veteran reported pain, swelling, and numbness of the site. The impression was status-post excision of the right supraclavicular mass with persistent symptomatic fluid cells. An April 2007 electromyography (EMG) report of the right upper extremity was normal. Nerve conduction studies (NCS) could not be conducted due to poor tolerance due to pain by the Veteran. VA medical records from 2008 and 2009 indicate ongoing complaints. A February 2009 VA examination and medical opinion were obtained. The examiner conducted a thorough review and analysis of the evidence. The examiner diagnosed tender scar from excision of lymph node and lipoma, right supraclavicular area, and right shoulder girdle area, neuropathic type pain secondary to lipoma impingement on the brachioplexus. The examiner also found that the lipoma and a lymph node were removed, and that the regrowth of a lipoma is the cause of any symptoms, and not the superficial excisional biopsy. Ultimately, the examiner provided an opinion that there was absolutely no indication that the neurologic problems were secondary to any surgical unforeseen complications or carelessness, negligence, lack of proper skill, area in judgment, or similar instance of fault on the part of the VA or an event not reasonably foreseeable. The examiner noted that the cause of the Veteran's problem was not the surgery, but the underlying lipoma mass, which was documented to be pressing upon the brachioplexus. The examiner also opined that the Veteran does not have a confirmed clinical diagnosis of chronic nerve damage of the right upper extremity, but that it was just as likely as not that she had suspected chronic nerve damage. The examiner noted, however, that although an April 2007 VA EMG was negative, NCS testing could not be conducted, and noted that she needed to return to Neurology to determine if she could undergo NCS testing some analgesia. It was noted that the Veteran indicated that she would ask for further testing. Accordingly, remand is required to obtain an addendum to the opinion that provides an etiological opinion based upon any additional evidence, to include neurological testing. Fourth, while on remand, the AOJ should attempt to obtain informed consent documents. One way to demonstrate that a disability is caused by VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing hospital care, is by showing that VA furnished treatment without the appropriate informed consent. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361(c), (d) (2010). Likewise, a risk is reasonably foreseeable where it is the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. 38 C.F.R. § 3.361(d). Informed consent must be appropriately documented, to include signature consent, for all procedures that require the use of sedation, anesthesia, or narcotic analgesia. 38 C.F.R. § 17.32(d)(i) (2010). An anesthesia consent is of record and an October 11, 2005 VA medical record notes there is "scanned consent." But the actual forms that the Veteran signed prior to the excision of the lipoma are not of record. Those documents should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, to include any records of additional neurological testing. Specifically request that all informed consent documents are obtained, to specifically include copies of the actual signed consent forms. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. After any additional records are associated with the claims file, the RO should arrange for the Veteran's claims file to be reviewed by the examiner who prepared the February 2009 VA examination report (or a suitable substitute if that examiner is unavailable) for the purpose of preparing an addendum to that opinion. The examiner must review the claims file, including the surgical records, for the pertinent medical and other history. All diagnostic testing and evaluation deemed necessary should be performed. The examiner must address the following questions: (a) was the Veteran's lipoma removed during the October 14, 2005 excision surgery? (b) is there additional disability as a result of October 2005 VA excision surgery, to include any neurological impairment of the right upper extremity and/or a painful scar? (b) regarding each additional disability as a result of October 2005 VA surgery, was that additional disability (i) directly caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing surgical treatment, or (ii) an event not reasonably foreseeable (i.e., a reasonable health care provider would not have considered this to be an ordinary risk of the treatment provided). The examiner should set forth all examination findings. The examiner must provide complete rationale for the conclusions reached, including citations to medical evidence of record. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. 2010). _________________________________________________ K. J. ALIBRANDO 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).