Citation Nr: 21002653 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-21 072 DATE: January 14, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for early onset menopause is granted. Entitlement to service connection for disability manifested by abdominal pain with discomfort and distress, alternatively claimed as entitlement to compensation under 38 U.S.C. § 1151, is granted. INTRODUCTION The Veteran served on active duty March 1976 to March 1996. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This case was previously before the Board in April 2016, June 2018, and in October 2019. After undertaking the requested development, the RO issued a September 2020 supplemental statement of the case before remitting the appeal to the Board for further appellate consideration. FINDING OF FACT The evidence fails to establish that the Veteran provided informed consent to undergo a surgical procedure in July 2010. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of U.S.C. § 1151 for early onset menopause due to a July 2010 surgery have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361, 17.32. 2. The criteria for compensation under the provisions of U.S.C. § 1151 for disability manifested by abdominal pain with discomfort and distress due to a July 2010 surgery have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran asserts that she experiences additional disability due a July 2010 bilateral salpingo oophorectomy. Specifically, the Veteran asserts that she experienced early onset menopause and disability manifested by abdominal pain with discomfort and distress. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran’s condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s, or in appropriate cases, his representative’s, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Notably, 38 C.F.R. § 17.32 requires the health care provider having primary responsibility for a patient to explain, inter alia, the “reasonably foreseeable associated risks” of the treatment. As is amply demonstrated by the various opinions of record, including the March 2020 VA examiner’s opinion with August 2020 addendum, there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault with respect to a July 2010 bilateral salpingo oophorectomy, and that the early onset menopause and disability manifested by abdominal pain with discomfort and distress were reasonably foreseeable. However, throughout the pendency of this case, VA attempted to obtain documentation pertaining to the Veteran’s informed consent. None of the voluminous treatment records obtained and associated with claims file demonstrates that the Veteran underwent the July 2010 procedure with informed consent. In November 2019, the RO sent the Veteran a letter requesting that she provide VA with the relevant documentation. To date, the Veteran has not supplied VA with the requested documents. Further, the RO sent letters to the operating doctor requesting that he or the associated medical facility provide the relevant documentation. No response has been received from either a January 6 or January 22, 2020 letter, to include a negative response. In the January 2020 letters, the RO provided the doctor with an alternative should the original documents be unavailable. Specifically, pursuant to the Board’s November 2019 remand directive, the doctor was asked to record his discussion as to the side effects and risks of the July 2010 surgery. Again, no response has been received. In a February 2020 letter, the RO notified the Veteran as to its failed efforts to obtain documentation of informed consent. Consequently, the RO determined that the records were unavailable for review. Accordingly, the evidence of record fails to establish that the Veteran underwent the July 2010 procedure with informed consent. See 38 C.F.R. § 17.32(c). Therefore, entitlement to benefits under the provisions of 38 U.S.C. § 1151 are warranted for early onset menopause and disability abdominal pain with discomfort and distress. Because compensation under 38 C.F.R. § 1151 has been granted for disability manifested by abdominal pain with discomfort and distress, the Board need not address the Veteran’s alternative theory of entitlement, that this disability was incurred in or due to her active duty. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.