Veteranclaims’s Blog

August 16, 2012

Single Judge Application McNair 25 Vet.App. at 104; Generic Consent Form; Presumption of Regularity

Excerpt from decision below:
“The Secretary attempts to distinguish McNair by pointing out that, in McNair, the Court stated that there is no presumption that a doctor “has fully informed a particular patient about a particular consequence of a particular medical procedure simply because a generic consent form has been filled out properly.” 25 Vet.App. at 104; Secretary’s Br. at 14-15.
The Secretary argues that the consent form in this case was not generic, and therefore this case is subject to a presumption of
regularity. However, the holding in McNair, quoted above, is based on the “unique characteristics of each patient and each medical procedure [and] is not the ‘product of a consistent, reliable
procedure,’ which is the ‘root’ of the presumption of regularity.” 25 Vet. App. at 104 (quoting Posey v. Shinseki, 23 Vet.App. 406, 410 (2010)). Thus, the distinction the Secretary attempts to make is
not valid because McNair does not limit the inapplicability of the
presumption of regularity: the uniqueness it speaks of is present in every medical procedure. The Board’s application of the presumption of regularity in this case, therefore, is in error.”
===========================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0670
BERNARD A. BENOIT, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Bernard A. Benoit, Jr., appeals through
counsel a
November 17, 2010, Board of Veterans’ Appeals (Board) decision that denied
him entitlement to
compensation pursuant to 38 U.S.C. § 1151 for partial loss of his voice.
Record of Proceedings (R.)
at 3-13. This appeal is timely, and the Court has jurisdiction to review
the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will vacate the
Board’s decision and remand the matter for further proceedings consistent
with this decision.
The Court notes that the appellant filed a motion asking the Court to hold
an oral argument
on his appeal. Because oral argument will not “materially assist in the
disposition of this appeal,”
the appellant’s motion for oral argument is denied. Janssen v. Principi,
15 Vet.App. 370, 379
(2001).
I. BACKGROUND
The appellant served on active duty in the U.S. Army from December 1979
until November
1982. R. at 611. In October 2000, the appellant signed a “standard form”
titled a “request for
administration of anesthesia and for performance of operations and other
procedures” consenting to

a surgical procedure identified as an anterior cervical discectomy with
possible fusion and plating.
R. at 267-68. On the reverse side of the form is an entry titled “risks.”
R. at 268. Typed next to that
entry are risks associated with the appellant’s procedure: Bleeding,
infection, anesthesia, need for
further surgery, CSF leak, damage to nerves, spinal cord, hoarseness, no
improvement, worsening
in symptoms. Id. The appellant stated that on the day of his surgery, he
was told that he “might be
hoarse for a couple of days,” but that he was not made aware that his
hoarseness might become
permanent and was not made aware that his vocal cords “were in jeopardy.”
R. at 249, 262, 315.
The appellant stated that he was never warned that he might experience
permanent paralysis of his
vocal chords. R. at 260, 262.
The record reveals that the appellant underwent the procedure, and that
after his surgery he
experienced “persistent hoarseness.” R. at 270. He was diagnosed with
right true vocal cord
paralysis and received additional treatment. R. at 159, 274-77. According
to the appellant his
doctors told him that his “vocal cords were not on the same plane with
each other any more due to
damage from surgery.” R. at 159. The appellant also stated that his vocal
chord is both paralyzed
and “moved out of line.” R. at 251.
In July 2001, the appellant filed a claim for compensation pursuant to 38
U.S.C. § 1151. R.
at 599-610. In a May 2002 peer review, the reviewing physician noted that
hoarseness that is
“sometimes temporaryand sometimes permanent” is a risk of the appellant’s
cervical disc operation.
R. at 329. The reviewer stated that he is “sure that the risks of [the
appellant’s] procedure were
discussed with [him] as the risks are mentioned in the informed consent
for the [n]eurosurgical
procedure.” Id. In August 2002, the regional office (RO) denied the
appellant’s claim. R. at 320-23.
In February 2005, the Board denied the appellant’s claim. R. at 240-45. In
a June 2007
memorandum decision, the Court vacated the Board’s decision and remanded
the matter for further
development. R. at 201-05. The Court determined that the informed consent
form did not make it
clear that “the appellant was informed that he was at risk of permanent
hoarseness.” R. at 204. The
Court also determined that the May 2002 peer reviewer failed to discuss ”
whether paralysis was a
condition that a reasonable health care provider would have considered to
be an ordinary risk of the
surgery.”
Id.
In February 2008, the Board remanded the appellant’s claim for additional
development. R. at 167-74.
2

In a June 2008 VA medical examination report, Dr. Donald DePinto noted
that the appellant
has “complete paralysis of the right vocal cords” and diagnosed him with
right vocal cord paralysis
secondary to right recurrent laryngeal nerve injury during cervical disk
removal and spinal fusion.
R. at 148, 150. Dr. DePinto opined that the appellant’s nerve injury is a ”
known complication” of
his surgery, and that a reasonable provider “would have considered this a
risk of the procedure and
would have informed the patient that it is definitely a possibility that
permanent injury to the
recurrent laryngeal nerve would occur.” R. at 150. Dr. DePinto further
opined that the appellant’s
hoarseness is secondary to his nerve injury, and that there was “no
negligence, malfeasance, or any
malpractice committed” by VA personnel. Id.
OnAugust28,2008,VAaskedDr.DePinto to submit anaddendumtohis
opinionaddressing
whetherthe risk of hoarsenessincludedontheconsentform may”reasonablybe
construed to include
a risk of permanent hoarseness?” R. at 127. An August 29, 2008, statement
apparently submitted
by Dr. DePinto, indicates that “hoarseness” on a consent form “could be
construed to include a risk
of permanent hoarseness.”1
R. at 125. The physician also noted that it is “common practice” to tell
a patient undergoing the procedure that was performed on the appellant
that there is “significant risk
of temporary hoarseness due to handling or compressing the nerve however
in a small percentage
of cases permanent injury to the nerve occurs resulting in permanent
hoarseness.” R. at 125-26.
In January2009, the Board denied the appellant’s claim. R. at 97-105. The
parties submitted
a joint motion to vacate the Board’s decision and remand the matter for
further proceedings in which
the parties asserted that the Board failed to consider the appellant’s lay
statements. R. at 55-57. On
April 29, 2010, the Court granted the parties’ motion. R. at 48.
The Board, in its November 17, 2010, decision here on appeal, denied the
appellant
entitlement to compensation pursuant to 38 U.S.C. § 1151 for partial loss
of his voice. The Board
found that there is no evidence of “any carelessness, negligence, lack of
proper skill, error in
judgment, or similar instance of fault on the part of VA” in providing the
appellant’s surgery. R. at
10. Next, the Board determined that the “partial loss of voice” that the
appellant now experiences
This statement is hand written and some words, including the physician’s
name, are
illegible. The lack of clarity affects this quotation. The word that the
Court construes as “could”
may also be “would.”
3
1

“was not due to an event not reasonably foreseeable.” R. at 11. Based on
the May 2002 and June
2008 medical opinions, the Board found that “there is a presumption of
competence and regularity
that the surgeon performing the [appellant’s] surgery informed him of the
risk that resulted in his
present condition.” Id.
The Board considered the appellant’s testimony that, prior to his surgery,
he was not told that
he might experience permanent hoarseness, but found that, “in light of the
record,” the appellant’s
statements are not credible. R. at 12. The Board further noted that, other
than the appellant’s
statements, “[e]verything else in the record . . . strongly suggests that
there was no limitation placed
on the informed consent relative to hoarseness or nerve damage.” R. at 13.
The Board also
determined that the appellant is not credible “in part because of his
economic interest” in the
outcome of the case. Id.
The appellant raises a number of arguments on appeal. First, the appellant
asserts that his
injury was not listed as a possible result of his surgery on the consent
form given to him prior to his
surgery and that he was not informed of the risk in language that he could
understand. Appellant’s
Brief (Br.) at 6-10. Second, the appellant argues that the Board was
incorrect in applying the
presumption of regularity to determine that all of the risks of his
surgery were explained to him. Id.
at 10-14. Next, the appellant challenges the Board’s finding that his lay
statements are not credible.
Id. at 14-18. Finally, the appellant argues that without giving him
adequate prior notice the Board
rejected his claim based on a different legal standard than that applied
by the RO. Id. at 18-20.
II. ANALYSIS
Pursuant to 38 U.S.C. § 1151(a)(1)(A), (B), a claimant who suffered a
disability resulting
from medical or surgical treatment provided by a VA employee or in a VA
facility is entitled to
disability benefits for the resulting disability “in the same manner as if
such additional disability . . .
wereservice-connected”iftheproximatecauseofthedisabilitywaseither”
carelessness,negligence,
lack of proper skill, error in judgment, or similar instance of fault on
the part of [VA] in furnishing
. . . the medical or surgical treatment” or “an event not reasonably
foreseeable.”
The Board found, and the appellant does not challenge, that the
appellant’s injury was not the
result of an event not reasonably foreseeable. R. at 11. Pursuant to 38 C.
F.R. § 3.361(d)(1)(i), (ii)
4

(2012), carelessness, negligence, lack of proper skill, error in judgment,
or similar instance of fault
in VA medical or surgical treatment is established when an appellant’s
medical or surgical treatment
caused his additional disability and VA either “failed to exercise the
degree of care that would be
expected of a reasonable health care provider”or furnished the medicalor
surgical treatment without
the appellant’s informed consent. There is no dispute that the appellant’s
injury was caused by his
surgical treatment, and the appellant does not argue that he was not
afforded care expected of a
reasonablehealth care provider. Thiscase,then,
centersonwhethertheappellant’s informedconsent
was properly obtained prior to his surgery.
Pursuant to 38 C.F.R. § 17.32(c) (2012), informed consent
is the freelygiven consent that follows a careful explanation bythe
practitioner to the
patient . . . of the proposed diagnostic or therapeutic procedure or
course of
treatment. The practitioner, who has primary responsibility for the
patient or who
will perform the particular procedure or provide the treatment, must
explain in
language understandable to the patient . . . the nature of the proposed
procedure or
treatment; the expected benefits; reasonably foreseeable associated risks,
complications or side effects; reasonable and available alternatives; and
anticipated
results if nothing is done. The patient . . . must be given the
opportunity to ask
questions, to indicate comprehension of the information provided, and to
grant
permission freely without coercion.
Inorderforinformedconsenttobeadequatelyobtained,apractitioner
needonlysubstantially
comply with these requirements, and “[m]inor deviations” from these
requirements “that are
immaterial under the circumstances of a case will not defeat a finding of
informed consent.” 38
C.F.R. § 3.361(d)(1)(ii).
A. Presumption of Competence and Regularity
The Board found that “there is a presumption of competence and regularity
that the surgeon
performing the [appellant’s] surgery informed him of the risk that
resulted in his present condition.”
R. at 9. The appellant argues that the Board’s finding is erroneous.
Appellant’s Br. at 6-10; Reply
Br. at 4-8.
Generally,”[t]hereis apresumptionofregularityunderwhichit is
presumedthatgovernment
officials ‘have properly discharged their official duties.'” Ashley v.
Derwinski, 2 Vet.App. 307, 308-
09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (
1926)). After the Board
reached its decision in this case, however, the Court issued a decision in
McNairNext Hit v. Shinseki, 25
5

Vet.App. 98 (2011) addressing the presumption of regularity in the
context of a doctor obtaining
informed consent from a patient. The Court concluded that “the presumption
of regularity does not
apply to the scope of the information provided to a patient by a doctor with regard to the risks involved with any particular treatment.” 25 Vet.App. at 100.
The Secretary attempts to distinguish McNair by pointing out that, in McNair, the Court stated that there is no presumption that a doctor “has fully informed a particular patient about a particular consequence of a particular medical procedure simply because a generic consent form has been filled out properly.” 25 Vet.App. at 104; Secretary’s Br. at 14-15.
The Secretary argues that the consent form in this case was not generic, and therefore this case is subject to a presumption of
regularity. However, the holding in McNair, quoted above, is based on the “unique characteristics of each patient and each medical procedure [and] is not the ‘product of a consistent, reliable
procedure,’ which is the ‘root’ of the presumption of regularity.” 25 Vet. App. at 104 (quoting Posey v. Shinseki, 23 Vet.App. 406, 410 (2010)). Thus, the distinction the Secretary attempts to make is
not valid because McNair does not limit the inapplicability of the
presumption of regularity: the uniqueness it speaks of is present in every medical procedure. The Board’s application of the presumption of regularity in this case, therefore, is in error.

B. Reasons or Bases
The Board’s determination that the appellant received adequate informed
consent is a factual
determination that the Court reviews under the “clearly erroneous”
standard of review. See Look v.
Derwinski, 2 Vet.App. 157, 161-62 (1992) (reviewing the Board’s factual
findings regarding
entitlement to compensation under 38 U.S.C. § 1151 by applying the ”
clearly erroneous” standard
of review). A finding of fact is clearly erroneous when the Court, after
reviewing the entire
evidence, “is left with the definite and firm conviction that a mistake
has been committed.” United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990).
When deciding a matter, however, the Board must include in its decision a
written statement
of the reasons or bases for its findings andconclusions,adequateto
enableanappellant to understand
the precise basis for the Board’s decision as well as to facilitate review
in this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49,
6

56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of anymaterial evidence favorable to the
claimant. See Caluza v. Brown,
7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57.
The Board has committed a number of reasons-or-bases errors. First, the
Court notes that
in its June 2007 memorandum decision, it determined that “although it
appears clear that hoarseness
was an ordinary risk of [the appellant’s] surgery, it is not clear from
the informed consent form that
the appellant was informed that he was at risk of permanent hoarseness.” R.
at 204. The Board,
however, found that the “plain reading of the consent form is that there
was no limitation placed on
the identified risks of nerve damage and hoarseness as has been maintained
by the [appellant].” R.
at 12 (emphasis added). The Board did not discuss the Court’s decision,
and its statement appears
contrary to the Court’s determination. “Under the doctrine of ‘law of the
case,’ questions settled on
a former appeal of the same case are no longer open for review.” Browder v.
Brown, 5 Vet.App.
268, 270 (1993); see also Augustine v. Principi, 343 F.3d 1334, 1339 (Fed.
Cir. 2003) (“Under the
doctrine of law of the case, ‘a court will generally refuse to reopen or
reconsider what has already
been decided at an earlier stage of the litigation.’ . . . The doctrine
‘operates to protect the settled
expectations of the parties and promote orderly development of the case.'” (
quoting Suel v. Sec’y of
Health & Human Servs., 192 F.3d 981, 985 (Fed. Cir. 1999))). Thus, the
Board should have
reconciled its conclusions with the Court’s earlier decision.
The Board concluded that the appellant’s hoarseness and nerve injury were
risks that “any
reasonable provider would have disclosed.” R. at 11. This conclusion is
based in part on Dr.
DePinto’s statement that permanent hoarseness resulting from a paralyzed
vocal cord caused by
recurrent laryngeal nerveinjury, though appearing”in a small percentage of
cases,” “is a possibility,”
and that the appellant would have been warned of the potential for
permanent injury. R. at 126, 150.
As the appellant asserts (Appellant’s Br. at 11-12, 15), the Board did not
discuss whether the
potential for this chain of events was explained to the appellant prior to
his surgery in “language
understandable” to him. 38 C.F.R. § 17.32(c). The Secretary answers the
appellant’s argument by
demonstrating how the record reveals that the appellant’s care providers
substantially complied with
the informed consent requirements. Secretary’s Br. at 15-16. The Board
offered no similar
7

discussion, and the Court will not accept the Secretary’s reasoning in
placeof a silent Board decision.
See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144,
156 (1991)
(“‘[L]itigating positions’ are not entitled to deference when they are
merely appellant counsel’s ‘post
hoc rationalizations’ for agency action, advanced for the first time in
the reviewing court.”).
The Court also agrees with the appellant’s assertion that the Board should
have discussed
whether informed consent was adequatelyobtained even if the appellant was
not told that his current
diagnosis, a vocal cord paralysis, might result from his surgery, but
instead was told that a nerve
injury and hoarseness, the cause and symptomatology of his current
disorder, could result.
Appellant’s Br. at 8-9. For these reasons, the Court finds that the
Board’s statement of reasons or
bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
C. Appellant’s Credibility
When analyzing lay evidence, the Board should assess the evidence and
determine whether
the disability claimed is of the type for which lay evidence is competent.
See Davidson v. Shinseki,
581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007).
If the disability is of the type for which lay evidence is competent, the
Board should next determine
the credibility of the evidence, mindful that it “cannot determine that
lay evidence lacks credibility
merelybecauseit isunaccompaniedbycontemporaneousmedicalevidence”and that”
competentlay
evidence may be sufficient in and of itself” to support a finding of
service connection. Buchanan
v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). If the Board
determines that lay evidence
is competent and credible, then it must weigh the evidence against other
evidence of record,
providing an appropriate statement of reasons or bases for its conclusions.
Id.
The Board found that the appellant is competent to make lay statements
reporting “things he
heard and experienced.” R. at 12. The Board, however, found that the
appellant’s testimony is not
credible. R. at 12-13. The appellant argues that the Board did not support
its conclusion with an
adequate statement of reasons or bases. Appellant’s Br. at 14-18.
Lay evidence is not credible when there is evidence that it has been
influenced by “possible
bias, conflicting statements, etc.” Buchanan, 451 F.3d 1336-37. For the
majority of its statement
of reasons or bases explaining its credibility determination, the Board
makes no attempt to identify
possible bias or demonstrate that the appellant has made conflicting
statements. R. at 12-13.
8

Instead, it essentially states that because the other evidence is
contrary to the appellant’s statements,
they are not credible. Id. The Court finds that the Board has clearly made
a probative value
determination about the appellant’s lay statements, and found that because
his statements are
outweighed by other evidence in the record, they are not credible. That is
not a proper reason to
reject the credibility of the appellant’s statements. See Buchanan, supra.
Theonlyotherreason theBoardgaveforrejectingthecredibilityoftheappellant’s
statements
is that he has an economic interest in the outcome of his case. R. at 13.
In Cartright v. Derwinski,
2 Vet.App. 24, 25 (1991), the Court determined that an appellant’s
interest in the outcome of a case
may affect the credibility of his lay statements, but stated that VA ”
cannot ignore appellant’s
testimony simply because appellant is an interested party.” The appellant
asserts that the Board has
simply ignored his testimony because of his economic interest in the
outcome. Appellant’s Br. at 16.
The Secretary does not directly address either Cartright or the
appellant’s argument. The
Board makes the blanket statement that he is not credible in part because
of his economic interest
without explaining further or demonstrating conflicts, bias, or other
deficiencies in the credibility
of the appellant’s statements. Without a more thorough explanation for its
reasoning, the Court
cannot be certain that the Board has not violated the Cartright
prohibition on ignoring an appellant’s
statements simply because of his interest in the outcome of the case. For
these reasons, the Court
finds that the Board’s statement of reasons or bases supporting its
credibility determination in this
case is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
D. Remedy
Throughout his brief and reply brief, the appellant asserts that the Board
should reverse the
Board’s decision. This Court has held that “reversal is the appropriate
remedy when the only
permissible view of the evidence is contrary to the Board’s decision.”
Gutierrez v. Principi, 19
Vet.App. 1, 10 (2004). Remand is appropriate “where the Board has
incorrectly applied the law,
failed to provide an adequate statement of reasons or bases for its
determinations, or where the
record is otherwise inadequate.” Tucker v. West, 11 Vet.App. 369, 374 (
1998). In this case, the
Court has found that the Board incorrectly applied the presumption of
regularity, and that it
committed numerous reasons-or-bases errors. Therefore, remand is the
appropriate remedy.
9

E. Other Arguments
The Court will not, at this time, consider the appellant’s other arguments,
including his
assertion that the Board erred by deciding his claim on a legal basis
different than the RO’s without
providing him prior notice. See Best v. Principi, 15 Vet.App. 18, 20 (2001
) (per curiam order)
(holding that “[a] narrow decision preserves for the appellant an
opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should
the Board rule against him”).
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
matters, including evidence in support of the arguments that the Court now
declines to consider, and
the Board is required to consider any such relevant evidence and argument.
See Kay v. Principi,
16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must
consider additional evidence
and argument in assessing entitlement to benefit sought); Kutscherousky v.
West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court has held that “[a] remand is
meant to entail a critical
examination of the justification for the decision.” Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (requiring
Secretary to provide for “expeditious treatment” of claims remanded by the
Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the appellant’s motion for oral argument is denied, the Board’s
November 17, 2010, decision
is VACATED, and the matter is REMANDED for further proceedings consistent
with this decision.
DATED: August 14, 2012
Copies to:
Louise A. Kroutil, Esq.
VA General Counsel (027)
10

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.