Citation Nr: 1322741 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-02 596 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional abdominal disability, to include aggravation of a pre-existing ventral hernia, claimed as the residual of a nephrectomy performed at a VA medical facility in January 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the June 2013 Appellant's Brief, the representative notes that the Veteran seeks entitlement to a grant of benefits under 38 C.F.R. § 1151, on the basis that he suffers from additional abdominal disability, to include aggravation of a pre-existing abdominal wall ventral hernia, due to the manner in which the January 2009 nephrectomy was performed. The representative wrote that the Veteran, in a May 2009 statement, explained that the VA surgeon had carefully explained how the surgery would be performed at the time the Veteran gave his consent to the surgery; however, the assertion is that the surgeon did not follow the "approved plan" and ended up cutting the Veteran in an area that caused additional disability to the ventral wall hernia. The representative noted that, while the RO has considered whether the occurrence of a post-surgical infection was the result of carelessness, negligence, lack of proper skill, error, judgment, or similar instance of fault by VA has not developed the claim filed by the Veteran, it has not adjudicated the question of whether any additional abdominal disability that includes worsening of abdominal wall ventral hernia was caused by any such fault on the part of VA. The representative further notes that the July 2009 VA medical opinion obtained in connection with the appeal was obtained from the Chief of Urology at the VA Medical Center (VAMC) where the January 2009 surgery took place; therefore, the representative questions the impartiality of the VA medical opinion and believes that the reviewing VA urologist potentially has a conflict of interest in providing a medical opinion in this case. After consideration of the above arguments set forth in the Appellant's Brief and upon review of the record, the Board finds that additional development is needed before proceeding to evaluate the merits of the Veteran's claim. The Board notes that the April 2009 VA medical examination report includes a diagnosis of "ventral hernia, incisional due to renal cancer surgery," which suggests that the Veteran may have additional abdominal disability as a result of the January 2009 nephrectomy. However, all relevant treatment records pertaining to the Veteran's diagnosis and treatment for ventral hernia before and after the January 2009 surgery have not yet been obtained. A January 2009 VA nursing admission evaluation note suggests that the Veteran has been treated for a ventral hernia through VA since May 2008; however, the earliest VA treatment record showing treatment for ventral hernia is dated in August 2008. Also, the Veteran wrote, on the December 2009 VA Form 9, that he had to have more surgery to repair the hernia; however, there are no subsequent treatment records pertaining to ventral hernia repair of record. Because the severity of the Veteran's ventral hernia both before and after the January 2009 nephrectomy is pertinent to the appeal, the Board finds that a remand in order to obtain additional treatment records, both VA and non-VA, that pertain to the Veteran's treatment for ventral hernia is warranted. See 38 C.F.R. § 3.361(b) (2012). The Board also notes that the Veteran, on the December 2009 VA Form 9, wrote that every doctor he had seen had questioned why the VA surgeon who performed the January 2009 nephrectomy had made the incision in the location that he did. Therefore, on remand, the Veteran should also be asked to submit to VA written statements from treating medical providers who have questioned how the January 2009 nephrectomy was performed or the placement of the incision. Additionally, as stated above, the Veteran has asserted that the VA surgeon who performed the January 2009 nephrectomy carefully explained how the surgery would be performed at the time that the Veteran gave consent to the surgery, but asserts that the surgery was performed outside the scope of the Veteran's consent. Although a December 2008 VA treatment record notes that the risks and benefits of the nephrectomy were discussed with the Veteran and consent was obtained, the record contains no signed consent form related to the January 2009 nephrectomy that details the scope of the Veteran's consent. Under 38 C.F.R. § 17.32(d)(1), signature consent is required for all diagnostic and therapeutic treatments or procedures that require the use of sedation, anesthesia, are considered to produce significant discomfort to the patient, have a significant risk of complication or morbidity, or require injections of any substance into a joint space or body cavity. In light of the foregoing, the Board finds that a remand is also warranted in order to determine whether a written signed consent form related to the January 2009 nephrectomy exists and, if so, to associate the document with the record. The Board further finds that the July 2009 VA medical opinion obtained in connection with the appeal is inadequate because, when providing the July 2009 VA medical opinion, the VA urologist from the Providence VAMC did not consider whether the Veteran's pre-existing ventral hernia was aggravated by the January 2009 nephrectomy, as has been contended by the Veteran. For this reason, after the above development has been accomplished, another VA medical opinion should be obtained. While there is no indication from the July 2009 VA medical opinion that there was any bias or an absence of impartiality on the part of the reviewing VA urologist, it is preferred that the requested VA medical opinion be obtained from a physician at a VA medical facility other than the Providence VAMC. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any and all VA and non-VA medical treatment received for a ventral hernia from 2008 to the present. After obtaining any necessary authorization and consent, obtain the identified records and associate them with the record. Any outstanding records pertaining to the Veteran's treatment for a ventral hernia from May 2008 to the present through the Providence VAMC in Providence, Rhode Island, should be obtained and included in the record. All negative responses should be properly documented in the record, to include preparing a memorandum of unavailability, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 2. Ask the Veteran to submit statements from any treating medical providers who have questioned how the January 2009 nephrectomy was performed or the placement of the incision. 3. Contact the Providence VAMC in Providence, Rhode Island, and request that a search be conducted for any written signed consent form(s) related to the January 2009 nephrectomy. Once found, any written signed consent form(s) should be associated with the record. If no written consent form(s) can be located, this information should be documented. 4. After the actions above have been completed, obtain a VA medical opinion from an appropriate physician, preferably at a VA medical facility other than the Providence VAMC in Providence, Rhode Island. The relevant documents in the record, to include the records on the Virtual VA system, should be made available for review. The VA reviewer/examiner should offer the following opinions: (a) Did the Veteran sustain any additional abdominal disability either directly or through aggravation of any preexisting condition(s), as a result of the January 2009 nephrectomy? If so, identify any additional disability. In responding to this question, the examiner/reviewer should consider the April 2009 VA medical examination report with the diagnosis of incisional ventral hernia due to renal cancer surgery. (b) If additional disability was sustained as a result of the January 2009 nephrectomy, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? In responding to this question, the examiner/reviewer should address the placement of the surgical incision and whether such placement was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. (c) If additional disability was sustained as a result of the January 2009 nephrectomy, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (d) If additional disability was sustained as a result of the January 2009 nephrectomy, was this a risk that a reasonable health care provider (1) would have considered to be an ordinary risk of the treatment provided, or (2) would have disclosed in connection with the informed consent procedures? A rationale for all opinions rendered with references to the evidence of record should be provided. If the VA reviewer/examiner is unable to answer any of the above questions without resort to speculation, he or she should explain why. 4. After any additional notification and/or development deemed necessary is undertaken, adjudicate the remanded claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case with an appropriate period of time for response by the Veteran and the representative. Thereafter, return the case to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ J. PARKER 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).