Citation Nr: 18160647
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 14-41 840
DATE:	December 27, 2018
Entitlement to compensation under 38 U.S.C. §1151 for left femoral nerve palsy is remanded.
The Veteran served on active duty in the U.S. Air Force from April 1974 to March 1975. 
This appeal to the Board of Veteran’s Appeals (Board) arose from a March 2012 rating decision by Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected a timely appeal.  See November 2012 Notice of Disagreement; October 2014 Statement of the Case (SOC); November 2014 Substantive Appeal (VA Form 9).
The Veteran requested a hearing before the Board. The requested hearing was conducted in July 2018 by the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the file.
1. Entitlement to compensation under 38 U.S.C. §1151 for left femoral nerve palsy is remanded.
After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim of entitlement to compensation under 38 U.S.C. §1151 for left femoral nerve palsy. 
The Veteran was diagnosed with prostate cancer in June 2009.  In August 2009, the Veteran underwent a radical retropubic prostatectomy with a bilateral pelvic lymphadenectomy at the VA medical center in Ann Arbor.  After the procedure, the Veteran began to feel pain in his left leg.  Subsequently, he was diagnosed with left leg femoral nerve palsy.  The Veteran contends that the doctor told him that he cut a nerve during surgery, resulting in the nerve damage.  The Veteran also asserts that he was not informed that he would suffer this nerve damage as a result of surgery.  He states that he was only informed about the risk of nerve damage as it pertains to an erection. 
A Veteran that is disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected.  38 U.S.C. § 1151.  An additional disability is a qualifying disability if: (1) it was not the result of the Veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a).  To satisfy the first prong of proximate causation, it must be shown that the VA 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 that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 
The August 2009 VA treatment record notes that before the operation, the attending resident discussed different treatment options, and the potential risks of the surgery with the Veteran. There is also a record dated August 2009 which is entitled “Informed Consent”.  It states that informed consent was obtained on that date.  The record also indicates that “the full consent document can be assessed through Vista Imaging”. The document containing the full consent is currently not part of the current record. 
When there is a dispute concerning what information a doctor has provided to a patient, a factual issue is raised regarding the probative value of a generic consent form indicating the patient was advised of the risks of the surgery and the Veteran’s lay statements that a specific risk was not discussed.  See McNair v. Shinseki, 25 Vet. App. 98, 103-104 (2011).  The Board has to make a factual finding in the first instance based on all of the evidence.  Id.
Before the Board can make a factual finding regarding whether the Veteran was informed of the specific risk of femoral nerve damage of the left leg, a remand is necessary in order to obtain a copy of the signed, complete, informed consent form on Vista imaging for the August 2009 prostatectomy.
The matter is REMANDED for the following action:
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1. Take all necessary action in order to obtain the actual, signed consent form for the Veteran's August 2009 surgery at the Ann Arbor VAMC.  If the consent form cannot be obtained, the reasons for the unavailability and the RO's efforts to obtain them must be documented in the claims file, and proper notification under 38 C.F.R. § 3.159(e) must be provided to the Veteran and his representative.

2. Then, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration.
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Syesa Middleton, Associate Counsel

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