Citation Nr: 1223965 Decision Date: 07/11/12 Archive Date: 07/18/12 DOCKET NO. 10-14 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for carpal tunnel syndrome of the right upper extremity due to bilateral hernia repair furnished by the VA Medical Center (VAMC) in Asheville, North Carolina, on May 22, 2006. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for carpal tunnel syndrome of the left upper extremity due to bilateral hernia repair furnished by the Asheville VAMC, on May 22, 2006. 3. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for peripheral neuropathy of the right lower extremity due to bilateral hernia repair furnished by the Asheville VAMC, on May 22, 2006. 4. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for peripheral neuropathy of the left lower extremity due to bilateral hernia repair furnished by the Asheville VAMC, on May 22, 2006. REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from January 1978 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran appeared at a hearing in August 2011 before an acting Board member who is no longer employed by the Board. VA regulations require that the Board member who conducts a hearing shall participate in making the final determination of the claim. 38 C.F.R. § 20.707 (2011). The Veteran was apprised of this in correspondence, dated in May 2012, and offered thirty days in which to request another hearing before a new Board member who would then decide this case. To date, there has been no response. Therefore, the Board assumes that he does not want an additional hearing. A transcript of the August 2011 hearing remains associated with the claims file. At the hearing, the record was left open for 60 days for the Veteran to submit additional evidence. Subsequently, additional evidence was received in a timely manner in the form of VA treatment records. The Veteran waived review of the newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2011). Thus, the Board will consider such evidence in the adjudication of this appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Generally, with respect to claims filed on or after October 1, 1997 (see VAOPGCPREC 40-97 (Dec. 31, 1997)), 38 U.S.C.A. § 1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, 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 VA 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. 2011); 38 C.F.R. § 3.361 (2011). On May 22, 2006, the Veteran underwent surgical treatment at the Asheville VAMC to repair bilateral inguinal hernias. The Veteran asserts that he developed carpal tunnel syndrome of both upper extremities and peripheral neuropathy of both lower extremities as a result of the surgery. He states that he did not have the problems prior to the hernia surgery. The Veteran maintains that VA must have been negligent in some manner in administering the surgery and that he now has the additional disability due to VA's fault. Thus, he contends that compensation benefits are warranted under the provisions of 38 U.S.C. § 1151 for disabilities of his four extremities. The evidence currently of record shows that the Veteran had problems with two hernias in April 2006. He was then scheduled for a bilateral hernia repair at the Asheville VAMC. The surgical treatment took place on May 22, 2006. A surgical operation note indicates that the surgery was completed with no complications. The evidence does tend to show that the Veteran was initially diagnosed with bilateral carpal tunnel syndrome of the upper extremities and bilateral peripheral neuropathy of the lower extremities, or at least he had complaints of pain and numbness in the four extremities, after the surgery was completed. No medical professional has identified the etiology of the Veteran's complaints. In this case, the Veteran has not yet been afforded a VA examination to determine if any additional disability is the result of the May 22, 2006 surgery, and if so, whether any additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment, or was proximately caused by an event not reasonably foreseeable. Therefore, the Board finds that the claims must be remanded to address this matter. In addition, a VA treatment record indicates that the Veteran's informed consent was obtained prior to the surgery, apparently on May 16, 2006. However, an actual copy of the consent form is not associated with the claims file and the treatment record states that the full consent document can be accessed through VistA Imaging. Thus, on remand, the AOJ should also obtain a copy of the consent form. Accordingly, this case is REMANDED for the following actions: 1. Obtain a copy of the full consent form for the May 22, 2006, surgical bilateral hernia repair. (This may possibly be retrieved through VistA Imaging.) 2. Schedule the Veteran for a VA neurologic examination. Provide a complete copy of the Veteran's claims file, including this remand, to the designated examiner for review. The examiner should provide a diagnosis, if any, of any current disability (or disability that has since resolved) of each of the four extremities manifested by pain and numbness. Any indicated testing, including an electromyography (EMG) and nerve conduction velocity (NCV), should be conducted. The examiner is requested to answer the following questions: A. Did the Veteran suffer additional disability affecting his upper and/or lower extremities, not of his own willful misconduct, as the result of bilateral hernia repair surgical treatment furnished to the Veteran by the Asheville VAMC on May 22, 2006? B. Was any additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment? C. Was any additional disability proximately caused by an event not reasonably foreseeable? Was the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? The examiner must provide the complete rationale for the conclusions reached-to include, as appropriate, citation to specific evidence of record and/or medical authority. 3. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). _________________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2011).