Citation Nr: 1334270 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-36 163A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for claimed residuals of prostate cancer treatment. (The issue of whether nonservice-connected pension benefits were correctly terminated effective on January 1, 2011 will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from December 1954 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the RO. In September 2013, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). The VLJ's actions complied with any hearing-related duties. A transcript of this hearing is located in the Virtual VA folder. The VBMS and Virtual VA folders have been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In April 2009, the Veteran submitted a claim for compensation pursuant to 38 U.S.C.A. § 1151. He asserted that he received incorrect seeds for prostate cancer resulting in the need for hormone shots. In August 2009, the RO denied the § 1151 claim and the Veteran subsequently perfected this appeal. A review of the VA medical records shows that the Veteran was diagnosed with prostate cancer and underwent implantation of radioactive seeds for prostate cancer (brachytherapy) at VA in July 2006. A June 2008 radiation oncology telephone note indicated that the Veteran was advised that VA was doing a quality assurance check on the prostate brachytherapy program and that he consented to having a CT scan. An October 2008 VA "adverse event note" indicated that the Veteran was informed that the brachytherapy procedure led to some seeds being placed outside the prostate and that this contributed to a high dose to the rectum. They determined that the Veteran was adequately dosed to the prostate. However, he appeared to have had a relapse as his prostate specific antigen (PSA) was steadily climbing. The VA medical records showed recurrent adenocarcinoma and continued treatment for prostate cancer, to include hormone shots. At the hearing, the Veteran testified that some seeds were released in to his body and began to cause problems such that he now needed hormone injections and pills to treat his cancer. The Veteran's wife testified that, when he got the seeds, they did not tell him about all of the side effects and what would be going on. On review, the Board finds that additional development is needed. See 38 C.F.R. § 3.159. First, the Veteran appears to have raised the issue of whether there was informed consent. See 38 C.F.R. § 3.361(d)(1)(ii), § 17.32 (2013). A July 2006 record contained in the virtual folder showed that "[i]nformed consent was obtained at 7:37 AM on July 24, 2006. The full consent document [could] be accessed through Vista imaging." The actual consent forms, to include any signed by the Veteran, are not of record. On remand, all documents pertaining to informed consent for the brachytherapy procedure should be obtained. Second, the Veteran was examined as part of a quality assurance check when it was determined that there were several seeds located outside of the prostate. The records pertaining to any quality assurance check related to the Veteran's treatment are potentially relevant. In VAOPGCPREC 1-2011 (Apr. 19, 2011), VA's Office of General Counsel held that VA's duty to assist in claim development under 38 U.S.C. § 5103A requires Agencies of Original Jurisdiction and the Board to request from the Veterans' Health Administration (VHA) any quality assurance records relevant to a claim. If the appropriate VHA officials deny the request, then the General Counsel may be asked to make the determination. If both VHA and the General Counsel conclude the records are confidential and privileged, then neither the Agency of Original Jurisdiction nor the Board may review the documents. Third, the Veteran testified that he had filed a tort claim against VA and received a settlement. Information pertaining to any settlement received pursuant to the Federal Tort Claims Act (FTCA) based on the July 2006 brachytherapy procedure is potentially relevant to the claim and these records should also be requested. Finally, the Board notes that the claims folder contains an undated medical statement from an urologist at VA. The physician opined "to a reasonable degree of medical certainty that the failure to control the prostate cancer with brachytherapy was not the result of incorrect placement of the seeds" and that "failure of any treatment modality [was] not indicative of a technical error or inadequacy per se but unfortunately [was] an expected outcome in a significant number of patients." While the medical statement is very thorough and discusses the claim in detail, it does not appear to answer all of the relevant questions in an § 1151 claim (i.e., causation and fault). See 38 C.F.R. § 3.361. Thus, additional medical opinion is needed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should contact the Philadelphia VA Medical Center and request the original clinical records pertaining to the July 2006 implantation of radioactive seeds for the treatment of prostate cancer. This should include the VA Standard Form 522 or other documentation showing informed consent for the July 2006 procedure. Copies of all records obtained should be associated with the claims folder or virtual folders. 2. The RO should request access to any records of "quality-assurance review" as defined in 38 C.F.R. § 17.500(c) conducted by VA as to the Veteran's July 2006 brachytherapy procedure from the VHA medical facility director, and thereafter take all appropriate action. 3. The RO should attempt to obtain available records related to any FTCA lawsuit filed by the Veteran in reference to the July 2006 brachytherapy procedure at VA. This should include any medical records, opinions, court documents, and/or settlement agreements. Efforts to obtain these records should include, but are not limited to, direct requests for such records to the VA Regional Counsel Office in Philadelphia. Any relevant additional evidence which is not protected by privilege should be associated with the claims folder or virtual folders. 4. If the RO cannot locate any records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 5. The RO should arrange for a review of the claims folder by an appropriate medical specialist at VA other than at the involved medical facility. The examiner is requested to determine whether it is at least as likely as not that the Veteran has additional disability due to the July 2006 brachytherapy treatment and if so, whether such disability was caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in rendering treatment for prostate cancer; or was an event that was not reasonably foreseeable. The examiner is specifically asked to respond to the following: (a) State whether the July 2006 brachytherapy procedure resulted in additional disability (actual causation)? In making this determination, the examiner is requested to compare the Veteran's condition before the beginning of medical or surgical treatment to the Veteran's condition after the treatment was stopped. (b) If the VA medical or surgical treatment caused additional disability, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; or, did VA furnish the medical or surgical treatment without the Veteran's informed consent? (c) Was the proximate cause of any additional disability an event not reasonably foreseeable? In making this determination, the examiner should discuss whether any additional disability caused by the July 2006 brachytherapy procedure was considered by a reasonable healthcare provider to be an ordinary risk of the treatment rendered by VA and 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. A complete rationale should be provided for any opinion offered. 6. The RO must review the examination report to ensure that it is in complete compliance with the Remand directives. If the report is deficient in any manner, the RO must implement corrective procedures at once. 7. After completing all indicated development, the RO must readjudicate the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for claimed residuals of prostate cancer in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ STEPHEN L. WILKINS 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).