Citation Nr: 1334836 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-43 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to compensation benefits under 38 U.S.C. § 1151 (West 2002) for left femoral nerve neuropathy, status post aorto bifemoral bypass graft due to surgery at a Department of Veterans Affairs (VA) facility in July 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, R.H. and L.E. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for left femoral nerve neuropathy status post aorto bifemoral bypass graft due to treatment at a VA hospital in July 2008. 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 The record shows the Veteran underwent an aorto bifemoral bypass with graft at a VA hospital in July 2008. He signed an informed consent in June 2008. About four days after the operation, it was noted he had left leg weakness which had been present since surgery. Another entry on the same day indicates that left quadriceps weakness had been noticed since the Veteran started mobilizing the previous day. The examiner stated he believed it was a traction injury to the left femoral nerve that hopefully would resolve with time. A neurology consultation the next day reflects that the Veteran developed left lower extremity weakness and sensory loss in the femoral nerve distribution with no other associated symptoms. Given his history and the neurologic examination, the examiner stated the Veteran's symptoms were most consistent with femoral nerve injury, likely related to the surgery. A VA physician spoke with the Veteran's daughter in August 2008. He indicated he saw the nerve in the operating room and that it was not transected, so this probably represented a temporary deficit that would take at least three months to start seeing recovery. He added the nerve was directly visualized in the surgery and no nerve injury was reported to the family initially, but only when it became clear he had a deficit two day postoperative. A VA physician reviewed the claims folder in December 2009. He concluded it was less likely as not that the Veteran's left leg femoral nerve damage was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA in furnishing treatment, or by any event not reasonably foreseeable. During the hearing before the undersigned in January 2012, there was testimony that the nerve was cut or nicked during the surgery. It was asserted that this was not known by the surgical team until a learning or surgical team meeting. Any such records have not been associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Contact the West Roxbury VA Medical Center and request the surgical or learning team meeting notes. If such records are not available, the facility should so state. 2. Based on the information received, the RO should undertake any appropriate opinion, to include obtaining another opinion if necessary. 3. The RO should then review the record and readjudicate the claim. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant 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). _________________________________________________ ALAN S. PEEVY 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).