Veteranclaims’s Blog

March 18, 2020

Single Judge Application; disability that proximately results from negligent VA medical care, which can be demonstrated by a showing that VA did not obtain informed consent for a procedure; 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1)(ii) (2019); layperson is competent to report a factual statement or opinion offered by a medical professional, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:02 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4528
TERRANCE W. MEYER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Pro se veteran Terrance W. Meyer appeals a June 2019 Board decision that
denied compensation under 38 U.S.C. § 1151 for left vocal cord paralysis. A veteran may receive compensation for an additional disability that proximately results from negligent VA medical care, which can be demonstrated by a showing that VA did not obtain informed consent for a procedure. See 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1)(ii) (2019). The veteran had surgery in February 2011 that resulted in left vocal cord paralysis, and he argues that he was not adequately informed that the surgery could have this complication. The Secretary notes that his allegation was raised for the first time on appeal and urges the Court to remand so the Board can address the matter in the first instance. As explained in more detail below, the Court remands.
The veteran served in the Army from January 1970 to July 1973 and from November 1990 to June 1991. In February 2011, he underwent surgery to remove an esophageal diverticulum.
Before he underwent this surgery, the veteran signed an informed consent form, and his physician purportedly discussed the “[r]isks and benefits” of the surgery. R. at 833. However, the record indicates that, although the “full consent document can be accessed through VISTA Imaging,” it was not available for the Board’s review. R. at 806. The veteran’s surgery resulted in paralysis of his left vocal cord. R. at 2.
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Thereafter, the veteran filed a claim for compensation under section 1151 for this disability.
In 2011 and 2012 statements, he asserted that he did not expect this vocal cord damage to occur
and that the surgeon must have done something wrong. Additionally, the veteran and his wife
asserted that his surgeon admitted to wrongdoing and apologized for the resulting disability.
VA obtained a medical opinion in November 2012. The examiner acknowledged that the
veteran had left vocal cord paralysis from the VA procedure but opined that it was less likely than
not the result of the carelessness, negligence, lack of proper skill, error in judgment, or similar
instance of fault on the part of VA. She reasoned that surgery on or near the neck or upper chest
can result in damage to the voice box, and that damage to the voice box is a well-documented risk
that could occur without fault.1
In the decision on appeal, the Board concluded that the veteran’s vocal cord paralysis—
although resulting from the February 2011 surgery—was not proximately due to carelessness,
negligence, lack of proper skill, error in judgment, similar instance of fault by VA, or an event not
reasonably foreseeable. The Board relied on the 2012 VA opinion as highly probative, noting the
examiner’s conclusion that vocal cord damage was a known risk of the surgery. The Board
acknowledged the statements of the veteran and his wife that something went wrong during
surgery but found them not competent to render opinions on this sort of medical issue.
A veteran may receive compensation for an additional disability that results from VA
medical care. 38 U.S.C. § 1151(a); Ollis v. Shulkin, 857 F.3d 1338, 1341 (Fed. Cir. 2017). The
veteran must first show that the medical care is the but-for cause of any additional disability. Ollis,
857 F.3d at 1343. The additional disability must also have been proximately caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault in furnishing treatment or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A)-(B); Ollis, 857 F.3d at 1343-46. Negligence may be shown if VA did not obtain informed consent for the medical treatment in question. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). In determining whether VA obtained informed consent, VA must consider whether health care providers have “substantially complied” with the informed consent procedures in 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1)(ii). When there is a dispute as to what information a doctor
1 “Vocal cord paralysis occurs when the nerve impulses to [the] voice box (larynx) are disrupted.” Vocal Cord Paralysis, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/vocal-cord-paralysis/symptomscauses/ syc-20378873
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provides to a patient, a factual issue arises as to whether a consent form is more probative than the claimant’s statements that a risk of surgery was not discussed. See McNair v. Shinseki, 25 Vet.App. 98, 104 (2011). But even if it was not discussed, “the failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” Id. at 107. Questions such as whether a person was advised of the risks or whether the unadvised risks were foreseeable are factual determinations to be made by the Board in the first instance. Id.
Here, the Secretary notes that VA obtained informed consent from the veteran, but the
evidence is unclear as to whether he was specifically advised of the risk of vocal cord paralysis.
Relatedly, the record indicates that the “full consent document” was not available for the Board’s review. R. at 806. Consequently, the Secretary asserts that remand is necessary so that the Board can adequately address “whether the veteran was informed of the risks of his surgery, including vocal cord paralysis, whether the failure to discuss such risk was a minor, immaterial deviation
under the regulation, or whether a reasonable person in similar circumstances would have
proceeded with the treatment.” Secretary’s Br. at 9. The Secretary also asserts that, on remand, the
Board should obtain the full informed consent report from VISTA Imaging.
Based on Mr. Meyer’s assertion that he was never told about the risk of vocal cord paralysis,
and the Secretary’s concessions described above, the Court remands for the Board to obtain the
informed consent form and provide an adequate statement of reasons or bases as to whether the
veteran was provided with informed consent prior to his February 2011 surgery. In resolving these
matters, the Board should consider any remaining arguments raised in the parties’ briefs, which
will be made part of the veteran’s claims file.
In particular, the veteran objected to the Board’s rejection of his and his wife’s statements
regarding the surgeon’s purported admission to them “that something must have gone wrong.” Informal Br. at 4. The Board found such statements not competent, but a layperson is competent to report a factual statement or opinion offered by a medical professional, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and it’s not clear why the Meyers aren’t competent to report what their surgeon told them about the quality of the veteran’s surgical care. Credibility, of course, is a separate issue, but the Board never mentioned it. In short, the Board’s incompetence finding, as presently articulated, is an insufficient basis for rejecting the Meyers’ lay statements.
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Accordingly, the Court VACATES the June 11, 2019, Board decision and REMANDS the
matter for readjudication consistent with this opinion.
DATED: March 16, 2020
Copies to:
Terrance W. Meyer
VA General Counsel (027)

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