Citation Nr: 18156175 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 12-18 999 DATE: December 7, 2018 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for Dupuytren's contracture of the third and fourth finger due to surgical treatment at the Washington, D.C., VA Medical Center (VAMC) on April 20, 2009, is remanded. FINDING OF FACT On June 20, 2018, during a Board hearing and prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw the claim of entitlement to an evaluation in excess of 70 percent for PTSD. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to an evaluation in excess of 70 percent for PTSD by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1969 and from January 1991 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the Board in June 2018. He submitted an October 2018 letter from Dr. R.P. with a waiver of initial RO review. 38 C.F.R. § 20.1304(c). Entitlement to an evaluation in excess of 70 percent for PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the June 20, 2018, Board hearing, the Veteran withdrew the claim of entitlement to an evaluation in excess of 70 percent for PTSD and, hence, there remain no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for Dupuytren's contracture of the third and fourth finger is remanded. The Veteran alleges that his Dupuytren’s contracture of the right hand became worse following the April 2009 surgery at the VAMC in Washington, D.C. Specifically, he asserts that the surgery resulted in decreased functionality of the hand, further contractures, and limited mobility resulting in the need for corrective surgery in August 2012 by Dr. R.P. Finally, he contends that he did not give informed consent for the surgery as he was unaware of the risks and possible complications of the surgery. First, it appears the appellate record is incomplete with respect to this claim. Notably, the following records are missing: a copy of the April 20, 2009, electronic informed consent signed by the Veteran (apparently available in Vista Imaging) and private medical records of the Veteran from Dr. R.P. dated between May 2012 and September 2013. Such records must be obtained. 38 C.F.R. § 3.159. Once these records have been obtained, an examination is necessary to determine whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in the lack of providing surgical treatment as alleged. 38 U.S.C. § 5103A. The matter is REMANDED for the following action: 1. After securing the necessary consent, the RO must obtain all outstanding (a) private medical records of the Veteran from Dr. R.P. dated between May 2012 and September 2013 and (b) a copy of the April 20, 2009, electronic informed consent signed by the Veteran (apparently available in Vista Imaging). All attempts to secure this evidence must be documented in the claim file by the RO and VA facilities must provide negative responses if no records are available. 2. After receipt of all additional treatment records, schedule the Veteran for an appropriate VA examination to determine whether he has additional disability of the right hand (Dupuytren’s contracture of the third and fourth fingers) due to failure of VA to provide proper surgical treatment in April 2009. The examiner should note the Veteran contends that his Dupuytren’s contracture of the right hand became worse following the April 2009 surgery at the VAMC in Washington, D.C, to include decreased functionality of the hand, further contractures, and limited mobility resulting in the need for corrective surgery in August 2012 by Dr. R.P. The examiner should also note the Veteran contends that he did not give informed consent for the surgery as he was unaware of the risks and possible complications of the surgery. Bearing in mind the Veteran’s contentions and after reviewing the medical evidence of record (to include December 2013 and October 2018 letters from Dr. R.P.), the examiner must specifically address the following questions: Does the Veteran have additional disability of the right hand as a result of the surgery performed on April 20, 2009, at the Washington, D.C., VAMC? If so, what is the additional disability? If there is additional disability, is it at least as likely as not (50 percent or greater probability) that any additional disability was (i) caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in failing to provide proper surgical treatment in April 2009, or (ii) was due to an event not reasonably foreseeable? In other words, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? ** In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. ** In determining whether an event is not reasonably foreseeable, the standard is what a “reasonable health care provider” would have considered to be an ordinary risk of treatment that would be disclosed. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel