Citation Nr: 1800088 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-04 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation under 38 U.S.C. 1151 for additional disability as a result of VA treatment for left hip surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and R.C. ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge during a July 2017 personal hearing held in Washington, D.C.; a transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A review of the record in this case raises some question as to whether the proper informed consent was obtained by VA medical personnel prior to the September 2010 left hip surgery during which fracture of proximal femur allegedly occurred. During the July 2017 personal hearing, the Veteran's representative reported that the Veteran would not have consented to the hip surgery for placement of a stent that she underwent in September 2010 if she knew the extent of potential side effects. A VA medical record dated September 22, 2010 indicates that an informed consent was signed by the Veteran before she underwent her hip surgery. It is noted there that the full consent document can be accessed through Vista Imaging. However, it appears that the full consent document signed by the Veteran is not associated with her claims file. In addition to the consent note described above, the Veteran's claims file contains a pre-admissions assessment and discharge plan dated September 22, 2010; anesthesia pre-op med instructions dated September 22, 2010; and a January 4, 2012 physical therapy outpatient initial evaluation that refers to the intertrochanteric fracture created during the September 2010 surgery in the left proximal femur. However, the Veteran's claims file does not contain any record or documentation for the surgery conducted on September 30. 2010. No surgery/operation report or any documentation concerning the intraoperative fracture has been associated with the Veteran's claims file. Under the circumstances, the Board is of the opinion that further development of the evidence is necessary prior to a final adjudication of the Veteran's claim for compensation benefits under the provisions of 38 U.S.C.§ 1151 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant treatment records from VA and any private treatment providers identified by the Veteran, to include all medical records pertinent to the September 2010 hip surgery for the period immediately preceding and following that surgery. All such records, once obtained, must be made a part of the Veteran's claims folder. The consent form for this procedure should be among the records obtained. Should such records prove unavailable, the AOJ must specifically so state. 2. The Veteran's entire claims folder, as well as her Virtual VA and Veterans Benefits Management System electronic files, should then be furnished to a VA physician for the purpose of determining whether the appropriate informed consent was obtained prior to the Veteran's left hip surgery in September 2010, as well as whether the fracture of proximal femur that occurred during the surgery was "reasonably foreseeable." Specifically, following a review of the Veteran's entire claims folder (including the aforementioned Virtual VA and Veterans Benefits Management System electronic records), the evaluating physician should offer an opinion as to whether, prior to the Veteran's left hip surgery on September 30, 2010, the appropriate informed consent was obtained. In addition, following a review of the entire pertinent evidence of record, the evaluating physician should additionally offer an opinion as to whether, given the circumstances of the surgery and condition of her disability, the intraoperative fracture of femur represented a "reasonably foreseeable event," as opposed to an event not reasonably foreseeable. If any negligence, lack of proper care, or other indicated fault in the treatment is identified, that should be detailed. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. After the development requested has been completed, the AOJ should review any examination report and check the qualification of the examiner to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Then, the AOJ should readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board for further appellate action. 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 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).