Citation Nr: 1432166 Decision Date: 07/17/14 Archive Date: 07/22/14 DOCKET NO. 10-21 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for right femoral nerve injury and urinary tract infections, claimed to result from VA treatment rendered during a hospitalization from June 13, 2005 to June 20, 2005. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to February 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2012, a videoconference hearing was held before the undersigned Veterans Law Judge. At that time, the record was held open for 30 days so that the Veteran could submit additional documentation. The representative provided an oral waiver of RO consideration. See 38 C.F.R. § 20.1304 (2013). Review of the claims folder shows that additional evidence was received at the RO in April 2012. This was not, however, associated with the claims folder until following the June 2012 decision, wherein the Board denied the appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2014, the Court issued a Memorandum Decision, which vacated the Board's June 2012 decision and remanded the matter for further proceedings. Judgment was entered in February 2014 and mandate was effective in April 2014. The VBMS and Virtual VA folders have been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the Memorandum Decision, the Court determined that the Board failed to discuss 38 C.F.R. § 17.32 (2013) and therefore, failed to make necessary factual determinations precluding effective review. The Court noted that the Board determined that informed consent had been obtained, but failed to make factual determinations as to whether signature consent was required, whether it had been obtained and the signed form was missing from the record, or whether the lack of a signature constituted a minor deviation. Under the circumstances of this case, the Court found that the matter must be remanded for the Board to consider and apply 38 C.F.R. §§ 3.361(d)(1)(ii) and 17.32 in the first instance. In determining whether there was informed consent, VA will consider whether healthcare providers substantially complied with the requirements of § 17.32. Minor deviations from the requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1)(ii). The informed consent process must be appropriately documented in the record and signature consent is required for all diagnostic and therapeutic treatments or procedures that require the use of sedation; require anesthesia or narcotic analgesia; 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. 38 C.F.R. § 17.32(d)(1). In June 2005, the Veteran underwent a distal ureterectomy with psoas hitch. The procedure required the use of general endotracheal anesthesia with a spinal block. Thus, signature consent was required. Information in the VA medical records suggests that informed consent was obtained. However, the claims folder does not contain the actual Standard Form (SF) 522 or any other documentation verifying signature consent. The Board notes that the RO requested these records, but the only records received were printed from VA's electronic medical records system. Thus, it is unclear whether the signed consent form exists and was not sent as requested; or, whether signature consent was not obtained as argued by the Veteran. Prior to discussing whether signature consent was obtained but is missing, or whether the absence of signed consent is a minor deviation, the Board finds that additional efforts should be made to obtain the document(s) in question. See 38 C.F.R. § 3.159(c)(2). As concerns the claimed urinary tract infections, in its June 2012 decision, the Board acknowledged that there was a question as to whether there was additional disability. For purposes of the decision, however, the Board assumed that there was additional disability, but found that it was not the result of VA negligence and that consent had been given. In its Memorandum Decision, the Court remanded the claim for the Board to make a factual finding as to whether the Veteran demonstrated such additional disability. The March 2007 VA medical opinion suggests that the urinary tract infections were related to the June 2005 surgery. A March 2012 statement from a private physician, Dr. M. P., includes an opinion that "the retained stent for 3-4 months in 2005 did not cause him any permanent damage." Resolving reasonable doubt in the Veteran's favor, the Board finds evidence of additional disability in the form of MRSA-positive urinary tract infections. Notwithstanding, the matter must be deferred pending the development requested herein. 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). Expedited handling is requested.) 1. The AOJ should contact the Palo Alto VA Medical Center and request the original clinical records pertaining to the Veteran's surgery and hospitalization for the period from June 13, 2005 to June 20, 2005. This should include the SF 522 or other documentation showing informed consent for the June 2005 surgery. The procedures set forth at 38 C.F.R. § 3.159(c)(2), with regard to Federal records, should be followed. 2. After completing all indicated development, the RO must readjudicate the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for right femoral nerve injury and urinary tract infections, claimed to result from VA treatment rendered during a hospitalization from June 13, 2005 to June 20, 2005. 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. 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. 2013). _________________________________________________ H. N. SCHWARTZ 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).