Citation Nr: 21065890
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 13-27 089
DATE: October 27, 2021

REMANDED

Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of a perforated colonic diverticulum incurred during a colonoscopy performed on June 18, 2009, by a private physician is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from April 1969 to February 1971.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in October 2020, which granted a joint motion for remand (JMR) vacating a November 2019 Board decision and remanding the issue on appeal for additional development.  The matter initially arose from a January 2011 rating decision by the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In December 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

 

In addressing the issue of informed consent, the October 2020 JMR noted that it appeared the prior Board decision included findings that were not supported by medical evidence in the record. Specifically, the question of whether the benefits of a medical procedure (colonoscopy) outweigh the risks of complications of that medical procedure and as to the frequency of a medical condition (perforation) and a medical procedure meant to address that condition (colostomy).  The Veteran's attorney provided additional argument and copies of medical literature in support of the claim in August 2021.  The Board finds that an additional VA medical opinion is required for an adequate determination. 

The matters are REMANDED for the following action:

Obtain an addendum opinion from an appropriate medical specialist as to the Veteran's claim addressing matters as to informed consent including (a) whether the benefits of a colonoscopy outweigh the rare risk of complications and (b) the frequency of the need for colostomy after perforation of the colon.  The examiner must acknowledge consideration of the pertinent medical literature of record, including those copies provided in August 2021.

NOTE: A signed consent form is, in and of itself, not sufficient to establish informed consent.  Rather, the question is what would have been disclosed by a "reasonable health care provider" primarily responsible for the patient in a given case, which may vary depending on the unique characteristics of each patient, such as physical condition and age, and of each medical procedure.

In this regard, the examiner should note the Veteran's statements that the doctor did not explain the informed consent document to him and acknowledge the medical literature submitted by the Veteran indicating that doctors do not adequately explain the risks associated with procedures.

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Douglas

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.