Citation Nr: 1804255 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 03-18 796A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for additional eye disability as a result of VA surgical treatment in 1997 and 1998. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO denied, in pertinent part, entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional eye disability as a result of VA surgical treatment in 1997 and 1998, and denied a claim of service connection for diabetes mellitus type 2. In September 2005, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) at the RO. The matter was subsequently remanded for additional development of the record in April 2006 and March 2008. The Veteran then testified at a personal hearing at the RO in July 2008 before a second VLJ. In October 2008 and September 2010 the Board remanded the issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional eye disability as a result of VA surgical treatment in 1997 and 1998 for additional development of the record. A third travel board hearing was held at the RO before a third VLJ sitting at the RO in February 2011. Then, the VLJ who held the September 2005 hearing retired from the Board, and pursuant to 38 C.F.R. § 20.707 and the Court's holding in Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), a letter was sent to the Veteran in November 2011 offering him the opportunity to testify at a hearing before another VLJ who would participate in the panel decision. In December 2011, the Veteran waived his right to appear at an additional BVA hearing. In a May 2012 decision, the Board denied the Veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for additional eye disability as a result of VA surgical treatment in 1997 and 1998. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision issued in January 2014, the Court vacated the May 2012 Board decision and remanded the matter back to the Board for readjudication consistent with the Court's January 2014 decision. After the Board's May 2012 decision was issued, but before that decision was vacated by the Court, the VLJ who presided over the second Board hearing in July 2008 retired from the Board. Accordingly, the Veteran was notified of another opportunity for a BVA hearing in August 2014. In September 2014, the Veteran waived his right to appear at another BVA hearing. The appeal was remanded again in September 2014 to comply with the Court's directives and again in December 2015 for further development. Subsequent to the Board's December 2015 remand, the VLJ who presided over the third Board hearing in February 2011 retired from the Board. Accordingly, the Veteran was notified of another opportunity for a BVA hearing in November 2017. No response has been received from the Veteran; therefore the Board will continue with adjudication of his appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required as the Board's previous remand instructions were not followed. When the Board's remand requests are not satisfied, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that he is blind in the right eye due to carelessness, negligence, lack of judgment and/or skill on the part of VA medical professionals. The Veteran maintains that he presented for follow-up treatment for a left eye condition, and during that appointment, the VA doctor determined that he needed immediate surgery for a right eye condition. After undergoing the right eye procedure in October 1998, complications arose, and the Veteran's vision worsened to the point of blindness in the right eye. The Veteran also asserts that he never signed a consent form prior to the October 1998 surgery. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused the additional disability, it must be shown that the medical treatment caused the additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Informed consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), such as in emergency situations. 38 C.F.R. § 3.361(d)(1). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2011). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The Veteran asserts that he never signed a consent form for the October 1998 surgery. Despite the Veteran's contentions, there is a notation in the record that the Veteran did, in fact, give informed consent, suggesting that a signed consent form may exist. Specifically, the operative report from the VA Medical Center in Tampa, Florida shows the following: "Valid Consent/ID Band Confirmed By: CL." (The name of the person who confirmed the valid consent and ID band is clearly identified on the operative report, but has been shortened to initials here in order to protect anonymity.) However, the actual consent form document is not of record in the Veteran's claims file. In the September 2014 remand, the Board requested the RO obtain records from the Orlando VA Medical Center, but it appears from the record that the October 1998 surgery was performed at the Tampa VA Medical Center (VAMC). The record shows that the Veteran was being treated in 1998 at the Bay Pines VAMC, but he was sent to Tampa for the October 1998 surgery. Thus, it is more likely that the signed consent form is located at either the Tampa VAMC or the Bay Pines VAMC. In December 2015, the Board remanded for the RO to make all necessary attempts to locate the consent form from the Tampa or Bay Pines VAMC. The Board noted it could be part of an administrative file at one or both of the VAMCs and could be among non-digital, retired records. The Board stated that if attempts to locate the signed consent form are unsuccessful, the RO should associate with the record a formal finding of unavailability. The record reflects that in September 2016 the AOJ requested the Veteran complete and return a release form to obtain treatment records on his behalf. The Veteran returned the form in December 2016. The AOJ submitted the form to the VA Private Medical Records Retrieval Center, which in December 2016 rejected the request, noting that the provider listed is non-private. The record does not reflect any other attempts were made to obtain the signed consent form, nor that a formal finding of unavailability was prepared. In June 2017 the AOJ issued a supplemental statement of the case (SSOC). Although the SSOC lists among the evidence "Tampa VA surgical report, informed and signed consent forms dated October 22, 1998, September 18, 1998 and October 21, 1998," the Board's review of the Veteran's claims file does not reveal any signed consent forms that have been added since the Board's December 2015 remand. Accordingly, the Board finds the claim must again be remanded for the AOJ to conduct a complete search for any consent forms obtained with respect to the Veteran's 1998 surgery. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the signed consent form that is referred to on the October 1998 operative report. The search for this consent form should include the Tampa and Bay Pines VAMC. The Board notes that the form may or may not be located with other medical records. Therefore, as necessary the search should include any administrative files separate from the Veteran's medical record and all non-digital, retired records. All attempts to locate the October 1998 consent form should be documented in the record. If all attempts to locate the October 1998 signed consent form are unsuccessful, the RO should associate with the record a formal finding of unavailability. 2. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).