Citation Nr: 1300482 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-10 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for colon damage (proctitis) secondary to VA treatment for prostate cancer. REPRESENTATION Veteran represented by: Kevin P. Byrnes, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty from August 1959 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the Veteran's claim of entitlement to service connection for rectal bleeding. Later in May 2006, the Veteran submitted a Notice of Disagreement (NOD) indicating that his rectal bleeding was due to the treatment he received at VA for his prostate cancer. A Statement of the Case (SOC) was not issued. The Veteran submitted a statement in June 2006, specifying that he wished his claim to be considered as one for § 1151 benefits. Rather than issue the Veteran a SOC, the RO treated this as a new claim and issued rating decisions dated in May 2007 and June 2007. The Veteran again submitted a NOD with these denials in May 2008 and a SOC was issued in February 2009. The Veteran perfected his appeal in March 2009. In June 2010, this claim came before the Board. At that time, it was remanded back to the RO to schedule the Veteran for a video conference hearing with a Veterans Law Judge (VLJ). In October 2010, the Veteran testified before the undersigned VLJ via video conference between the RO in Winston-Salem, North Carolina, and the Board's Central Office in Washington, DC. A transcript of that proceeding has been prepared and incorporated into the evidence of record. In January 2011, the Board denied the Veteran's claim of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for colon damage (proctitis) secondary to VA treatment for prostate cancer. The Veteran subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim. The Court issued a March 2012 Order vacating the January 2011 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand. The issue of entitlement to service connection for a right foot bunion has been raised by the record (see Veteran's Statement, April 22, 2010), but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this claim and it 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 Veteran if further action on his part is required. REMAND In compliance with the aforementioned March 2012 Joint Motion for Remand, the Board finds that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for colon damage (proctitis) secondary to VA treatment for prostate cancer. Relevant Law and Regulations When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. See 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). Under 38 U.S.C. § 1151, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. See 38 C.F.R. § 361 (c)(1) (2012). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2) (2012). In addition to a showing of additional disability or death, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran and his representative in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. See 38 C.F.R. § 3.361(d)(1) (2012). Along these lines, the Court has held that it cannot be presumed that a complication was not discussed because it was not recorded. See Halcomb v. Shinseki, 23 Vet. App. 234, 241 (2009). That is, a VA consent form without listing a possible complication is not negligence per se. Id. at 239-41. VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment; the expected benefits; reasonably foreseeable associated risks, complications, or side effects; reasonable and available alternatives; and anticipated results if nothing is done. See 38 C.F.R. § 17.32(c) (2012). In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that: (i) require the use of sedation; (ii) require anesthesia or narcotic analgesia; (iii) are considered to produce significant discomfort to the patient; (iv) have a significant risk of complication or morbidity; (v) require injections of any substance into a joint space or body cavity; or (vi) involve testing for Human Immunodeficiency Virus (HIV). The informed consent process, including signed consent form, must be filed in the patient's health record. See 38 C.F.R. § 17.32(d) (2012). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2) (2012). Specific Contentions Set forth in the Joint Motion for Remand The March 2012 Joint Motion for Remand raised the issue of the Veteran's decision-making capacity under 38 C.F.R. § 17.32(b) at the time of his external beam radiation therapy (EBRT) in 2001, in light of his psychological history. Review of the record reveals that a medical opinion has not been associated with the record specifically addressing the Veteran's mental competence at the time of his EBRT. The record does, however, contain numerous VA outpatient treatment records addressing the Veteran's psychiatric state prior to and after his EBRT in 2001. The Veteran should be afforded the opportunity to submit any additional private psychiatric treatment records that are not of record. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Colvin at 175. As such, the AMC should obtain a VA psychiatric medical opinion to determine whether the Veteran had the mental capacity to consent to the 2001 EBRT for his prostate cancer. Regardless of the competency question, the Joint Motion for Remand also found that the Board failed to adequately address the requirements set forth in 38 C.F.R. § 17.32(c) regarding informed consent. Extensive review of the Veteran's claims file reveals that on July 2, 2001, a VA radiation/oncology consultation note indicated that the Veteran had been diagnosed with an adenocarcinoma of the prostate. The examining physician stated the following: Treatment options, including EBRT and brachytherapy, were discussed with the patient. The patient prefers EBRT and the plan for radiation therapy, including risks, benefits and side effects, was discussed with the patient at length. He has freely consented to proceed with EBRT... The VA treatment record does not, however, indicate that a signed consent form was associated with the record. A search of the Veteran's medical records must be performed in order to obtain any consent form associated with the Veteran's EBRT of 2001. In the event that the AMC is unable to locate a consent form associated with the Veteran's EBRT of 2001, a new VA medical opinion must be obtained from a radiation oncologist to determine whether the July 2001 treatment record detailed above constituted adequate consent to the EBRT and if the risks discussed with the Veteran would have included colon damage (proctitis). Accordingly, this matter is hereby is REMANDED to the RO, via the AMC, for the following action: 1. The RO/AMC is requested to perform a thorough search of the Veteran's medical records, to include contacting the VA Medical Center (VAMC) in Durham, North Carolina, to obtain any consent forms associated with the Veteran's EBRT performed in 2001. Any response received should be memorialized in the Veteran's claims file. 2. The RO/AMC is requested to contact the Veteran to request that he complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for any medical treatment facilities in which he was treated for a psychiatric disability. After obtaining a completed VA Form 21-4142, the RO/AMC should attempt to obtain any pertinent medical records, not already associated with the claims file. Any response received should be memorialized in the Veteran's claims file. 3. The RO/AMC is requested to obtain a medical opinion from a VA radiation oncologist. The VA physician must thoroughly review the Veteran's claims file and indicate this has been accomplished in the medical opinion report. The VA physician should specifically address the following: (a) State whether EBRT: (i) Requires the use of sedation; (ii) Requires anesthesia or narcotic analgesia; (iii) Is a procedure considered to produce significant discomfort to the patient; (iv) has a significant risk of complication or morbidity; (v) Requires injections of any substance into a joint space or body cavity; and (vi) Involves testing for HIV. (b) State whether the July 2, 2001, VA radiation/oncology consultation record, which noted that "the plan for the Veteran's radiation therapy, including risks, benefits and side effects, was discussed at length", would have included a discussion of the consequences of proceeding with EBRT, to include the possibility of colon damage (proctitis), other treatment options and the consequences of foregoing all medical treatment. Any opinion expressed should be accompanied by a complete rationale. 4. Thereafter, the RO/AMC is requested to obtain a medical opinion from a VA psychologist or psychiatrist to determine whether the Veteran was competent to consent to his EBRT in 2001. The VA physician must thoroughly review the Veteran's claims file and indicate this has been accomplished in the medical opinion report. For the VA physician's information, under 38 C.F.R. § 17.32(b), in order to give informed consent, the patient must have "decision-making capacity" and be able to communicate decisions concerning health care. If the patient lacks decision-making capacity or has been declared incompetent, consent must be obtained from the patient's surrogate. The Board observes that in 38 C.F.R. § 17.32 (a), "decision-making capacity" is defined as the ability to understand and appreciate the nature and consequences of health care treatment decisions. (a) The VA physician is requested to state whether the Veteran retained decision-making capacity prior to his 2001 EBRT. In making this determination, the VA physician is requested to specifically address the VAMC treatment records dated in February 1999, June 1999, December 1998, April 2002, and July 2002. The April 2006 VA mental disorders examination report should also be addressed. (b) The VA physician is also requested to state whether a reasonable person in the Veteran's situation would have proceeded with the EBRT treatment even if advised of the risk that he could suffer from colon damage as a result of that treatment. Any opinion expressed should be accompanied by a complete rationale. 5. To help avoid future remand, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should adjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ DEBORAH W. SINGLETON 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) (2012).