Citation Nr: 21023619 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-29 546 DATE: April 21, 2021 ORDER New and material evidence has been received and the application to reopen a claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) is granted. REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1977 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran presented sworn testimony at a hearing before the undersigned in April 2021. The Veteran previously submitted a claim of entitlement to service connection for bilateral hearing loss that was denied in a September 2011 rating decision on the basis that the Veteran did not have a current disability. The September 2011 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, he testified that a doctor told him VA did not properly perform the surgery because he received too much anesthesia during the surgery and that it caused lesions on his brain. See April 2021 Hr’g Tr. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) is remanded. As discussed above, the Veteran testified at the April 2021 Board hearing that a doctor told him VA did not properly perform the surgery because he received too much anesthesia during the surgery and that it caused lesions on his brain. The Board notes that the Veteran is competent to repeat what a doctor told him. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board does note that this statement corroborated by any contemporaneous medical record. Based on the above, the Board remands this matter to obtain treatment records and for a new VA opinion to address the contention that the Veteran was administered too much anesthesia during his surgery. The matters are REMANDED for the following action: 1. Reach out to the Veteran and his representative to have them identify any physicians/medical facilities relevant to his claimed diagnosis of overexposure to anesthesia. For any physician/medical facility identified, ask the Veteran to complete a VA Form 21-4142, then make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the signed informed consent, any surgical, nursing and anesthesia notes and records, from the Veteran’s May 2006 inguinal hernia repair surgery at the Edward Hines, Jr. VA Hospital. All efforts to obtain these documents should be memorialized in the file and if the records are not available, and if these records are lost or otherwise unavailable, that should be made clear in the file. 3. Make arrangements for the claims file to be forwarded to an appropriate VA examiner to provide opinions, as to the Veteran's claims for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis). An examination is not necessary unless the examiner deems it so. The VA examiner must provide a clear explanation for the opinions. (a) Were any of the Veteran's additional disabilities of cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis), caused by, or made worse from the VA inguinal hernia repair surgery performed on May 18, 2006? (b) If any of the Veteran's additional disabilities of cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) were caused by or made worse from the VA inguinal hernia repair surgery performed on May 18 2006, then did any additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during the surgery? (c) If any of the Veteran's additional disabilities of cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) were caused by or made worse from the VA inguinal hernia repair surgery performed on May 18, 2006, then notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of this Veteran's case, was any cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) a reasonably foreseeable outcome or surgical complication of the VA surgery performed on May 18, 2006? In rendering these opinions, the VA examiner should address whether a “reasonable health care provider” would have considered the Veteran's additional disabilities of cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis) to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with the treatment, regardless of what risks the treating physician actually foresaw and disclosed in the informed consent forms of record. (d) Would a reasonable person in the Veteran's situation have proceeded with the May 18, 2006 inguinal hernia repair surgery if advised of the risk that he could suffer from cerebrovascular accident right parietal area with left hemiparesis and peroneal palsy (claimed as paralysis)as a result of that surgery? In rendering this opinion, the VA examiner should discuss the medical consequences of proceeding with the May 18, 2006, inguinal hernia repair surgery, versus the Veteran foregoing this surgery, which are primary factors to evaluate whether a reasonable person would have proceeded with the surgery. In this regard, a physician's failure to advise a veteran of a foreseeable risk may be considered a minor, immaterial deviation if it is determined that a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. The examiner must address the Veteran’s contention that a doctor told him that he was given too much anesthesia during his surgery and that this has caused lesions on his brain. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.