Citation Nr: 1333964 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-00 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim for entitlement to compensation under 38 U.S.C. § 1151 for median nerve damage of the right hand, for accrued purposes only. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Luke Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1952 to February 1954. The Veteran passed away in October 2005. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a review of the record, the Board finds that a remand for further development is warranted with respect to the appellant's claim to reopen the claim for entitlement to compensation under 38 U.S.C. § 1151 for median nerve damage of the right hand, for accrued purposes only. The appellant contends that she is entitled to 38 U.S.C. § 1151 compensation for accrued purposes as a result of negligence of the Veteran's doctors and caretakers at the VA Medical Center (VAMC) in Houston, Texas, during the course of a December 2004 surgical operation to place an arteriovenous fistula in the Veteran's left arm. VA treatment notes indicate that after doctors found that the left arm was unsuitable for the operation, the surgery was performed on the right arm. VA treatment notes also indicate that prior to the operation, doctors spoke to the Veteran about the possibility of performing the surgery on his right arm and that he consented to the operation on the right arm. However, the appellant argues that the Veteran told her that the operation was done on the wrong arm, and that the Veteran suffered median nerve damage of the right hand as a result of the surgery performed. In his January 2005 claim for compensation under 38 U.S.C. § 1151, the Veteran indicated that he signed consent forms for the operation to be done on his left arm. No signed consent forms are contained in the record. For a claim to compensation under 38 U.S.C. § 1151, as here, filed on or after October 1, 1997, the appellant must show that VA treatment resulted in additional disability and, further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013); see also VAOPGCPREC 40-97 (Dec. 31, 1997). While VA treatment records for the Veteran's surgery have been associated with the file, there are no signed informed consent documents in the record. These forms, if they exist, must be made part of the record. Additionally, any relevant VA clinical records pertaining to the Veteran that date from March 2005 to the date of his death should also be made part of the record. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA medical records pertaining to the Veteran that date from March 2005 to the date of his death. 2. Request from the Houston VA Medical Center the consent form(s) signed by the appellant in connection with a procedure on December 3, 2004. 3. Efforts to obtain the above records must continue until it is concluded that the information sought does not exist or that further attempts to obtain it would be futile. See 38 C.F.R. § 3.159(c)(2) (2013). In the event the RO/AMC is unable to obtain these records, the appellant must be provided with oral or written notice of that fact, in accordance with 38 C.F.R. § 3.159(e). 4. The RO should then readjudicate the appellant's claim. If the claim remains denied, the appellant should be provided with a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. The appellant 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. 2013). _________________________________________________ S.S. TOTH 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) (2013).