Citation Nr: 1330780 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-39 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for residuals of a urethral tear resulting from a February 2008 surgery at a VA medical facility. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from November 1978 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the Veteran's claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for residuals of a urethral tear resulting from a February 2008 surgery at a VA medical facility. In August 2011, the Veteran testified before the undersigned at a hearing at the RO (Travel Board). A hearing transcript has been associated with the claims file. A review of the paperless, electronic (Virtual VA) claims processing system reveals adjudicatory documents which are duplicative of those contained in the claims file. Subsequent to the issuance of the January 2011 supplemental statement of the case (SSOC), the Veteran submitted additional evidence relevant to the claim on appeal. Initial RO consideration of such evidence was waived by the Veteran in August 2011. See 38 C.F.R. § 20.1304(c) (2012). During his August 2011 hearing, the Veteran appeared to raise the issue of entitlement to service connection for a genitourinary disorder, to include chronic ejaculatory pain, as secondary to a service-connected lumbar spine disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, 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, D.C. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim on appeal can be properly adjudicated. The Veteran seeks section 1151 compensation for an additional disability, namely residuals of a urethral tear resulting from a February 2008 surgery at a VA medical facility. Under 38 U.S.C.A. § 1151, compensation is awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment or examination furnished under any law administered by VA, and the negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment; or (B) an event not reasonably foreseeable. See 38 U.S.C.A. § 1151(a). VA treatment records document that the Veteran underwent a transformational lumbar interbody fusion (TLIF) in February 2008. A February 2008 VA discharge summary indicated that the Veteran may have experienced an "urethral trauma" and had a gross hematuria. During his August 2011 hearing, the Veteran described his genitourinary symptoms and detailed an incident in which his catheter snagged while being removed, causing blood in his urine. An August 2009 VA examiner opined that there was insufficient information to determine if the Traumatic Foley insertion during the Veteran's VA surgery was due to carelessness or negligence and that difficulty placing a Foley catheter can be a common surgical complication; the examiner did not indicate why there was insufficient information to make such a determination nor did he indicate what information would enable such an opinion to be rendered. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (in cases where an examiner is unable to render an opinion regarding the etiology of a condition, the examiner is required to provide an rationale as to why this is so and state whether there is additional evidence that would permit an opinion to be rendered). A new VA opinion is therefore required. In addition, the August 2009 VA examiner noted that the Veteran had "appropriately consented" to complications from the February 2008 surgery. 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. 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 appropriately documented in the medical record. 38 C.F.R. § 17.32(d) (2012). The Board notes that while a copy of the surgical report from February 2008 is included in the record, a copy of the signed consent form is not. A copy of the consent form should specifically be requested and, if such cannot be obtained, such should be documented for the record and the Veteran should be so advised. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any informed consent form(s) signed by the Veteran pertaining to the February 2008 lumbar spine surgery. If, after all reasonable efforts have been expended, it is determined that such form (s) cannot be located, the Veteran and his representative should be so advised. 2. After all records and/or responses received from the contacted entity have been associated with the claims file, the Veteran should be scheduled to undergo VA examination, by an appropriate examiner at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify all current impairments of the Veteran's genitourinary system, to include ejaculatory pain. Then, the examiner should render an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran incurred additional disability as the result of the February 2008 lumbar spine surgery. If additional disability as the result of the February 2008 lumbar spine surgery is confirmed, the examiner should also opine as to whether the proximate cause of such disability was (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. If any benefits sought on appeal remains denied, the Veteran and his representative must be furnished with an appropriate supplemental statement of the case includes clear reasons and bases for all determinations, reflects review of all pertinent evidence of record and afford them 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. 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). _________________________________________________ MARJORIE A. AUER 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).