Veteranclaims’s Blog

July 18, 2021

Single Judge Application; informed consent criteria in § 17.32; this Court found that the minor, immaterial deviation exception outlined in McNair “does not apply when there is no attempt to obtain consent (as opposed to where defective consent has been obtained).” Hatfield v. McDonough, No. 19-7165, __ Vet.App. , , 2021 WL 855176, at *8 (Vet. App. Mar. 8, 2021);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3381
JUAN J. GARCIA, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Juan J. Garcia appeals, pro se, an April 21, 2020, Board of Veterans’
Appeals (Board) decision in which the Board (1) denied compensation under 38 U.S.C. § 1151 for
post branchial cyst residuals resulting from a July 1979 VA medical treatment; and (2) remanded
the matter of service connection for an acquired psychiatric disorder, to include post-traumatic
stress disorder (PTSD) and major depressive disorder.1 Record (R.) at 5-10. This appeal is timely
and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) andSingle-judge disposition is appropriate when the issues are of “relative simplicity” and “the
outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons that follow, the Court will vacate the part of the April 21, 2020, Board decision that denied
compensation under section 1151 for post branchial cyst residuals and remand the matter for
readjudication consistent with this decision.
1 The matter remanded by the Board is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478
(2004); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
2
I. BACKGROUND
Mr. Garcia served on active duty in the U.S. Army from June 1974 to June 1977. R. at

In July 1979, he underwent surgery at the VA hospital in San Antonio, Texas, for excision
of a branchial cyst in the left neck area. R. at 3669-71, 3766-67. In June 2012, Mr. Garcia sought
compensation under section 1151 for residuals of the branchial cyst removal, including a painful
scar and dry mouth. R. at 4246. A VA regional office (RO) denied the claim in an April 2013
rating decision, R. at 4120-25, and Mr. Garcia filed a Notice of Disagreement, R. at 3788-803. The
RO continued to deny the claim in a September 2016 Statement of the Case, R. at 2869, and Mr.
Garcia appealed to the Board. R. at 2781.
In a September 2017 decision, the Board remanded the matter for several actions, including
“ensur[ing] that a copy of the [v]eteran’s consent form for his July 9, 1979 VA surgical procedure
(removal of the second left branchial cleft cyst) is of record.” R. at 2612-22. In November 2017,
Mr. Garcia was examined for his branchial cyst residuals, with the examiner opining that “the
residual scar and loss of salivation is at least as likely as not an additional disability as a result of
the July 1979 VA left cleft cyst surgery.” R. at 1713. The examiner opined, however, that the
residuals were at least as likely as not a reasonably foreseeable outcome of surgical treatment, with
total surgical excision being the treatment of choice, and that a decrease in salivation was an
expected residual “due to excision proximity.” Id. The examiner also opined that the residuals were
“less [] likely as not due to carelessness, negligence, lack of proper skill, error in judgment or
similar instance of fault on the part of VA.” Id.
In the April 2020 decision on appeal, the Board denied compensation under section 1151
for post branchial cyst residuals, acknowledging that Mr. Garcia had “incurred additional disability
following the July 1979 VA surgery,” but then concluding that “these residuals are not due to the
fault of VA.” R. at 7. Relying on the November 2017 VA examination, the Board stated that Mr.
Garcia’s residuals were reasonably foreseeable complications of his surgery, and there was no
negligence involved the surgical procedures. R. at 8. The Board stated that “the July 1979 consent
form could not be located” but that “the inability of VA to locate a document from four decades
prior does not necessitate the conclusion that proper consent was not obtained.” Id. The Board then
concluded: “Rather, the preponderance of the evidence supports the conclusions offered herein,
including that the [v]eteran’s surgery residuals were common and anticipated.” Id.
3
On appeal, Mr. Garcia argues that he met all the criteria under section 1151 and 38 C.F.R.
§§ 3.361 and 3.800 for compensation for his post branchial cyst residuals. Appellant’s Informal
Brief (Br.) at 7-8; Reply Br. at 3-4. He argues that the Board’s conclusion that he was not entitled
to compensation under section 1151 was inconsistent with § 3.361 and inconsistent with the
Board’s findings that there was no informed consent form for the July 1979 surgery and that Mr.
Garcia developed additional disability caused by VA treatment. See Appellant’s Informal Br. at 7-
8; see also DePerez v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally interpreting the arguments
in an informal brief). The Secretary defends the Board’s decision responding that § 3.800 does not
apply to Mr. Garcia’s claim and that the Board correctly applied section 1151 and § 3.361.
Secretary’s Br. at 5-11.
II. ANALYSIS
Under 38 U.S.C. § 1151, a veteran may be compensated for a “qualifying additional
disability” that was not the result of the veteran’s willful misconduct and that is actually and
proximately caused by VA hospital care, medical or surgical treatment, or examination furnished
by VA. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361 (2020). A “qualifying additional disability” is
proximately caused by VA medical care, treatment, or examination when the disability results
from either the carelessness, negligence, lack of proper skill, error in judgment, or similar instance
of fault on the part of VA in furnishing the medical treatment; or the disability results from an
event that is not reasonably foreseeable. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1).
To establish that the proximate cause of a disability was the result of carelessness,
negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA,
the claimant must show that either (1) VA failed to exercise the degree of care that would be
expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or
examination without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1)(i),(ii). Under
38 C.F.R. § 17.32(c), “informed consent”
is the freely given consent that follows a careful explanation by the 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
4
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.
38 C.F.R. § 17.32(c) (2019).2
To determine whether there was informed consent, “VA will consider whether the health
care providers substantially complied with the requirements of [38 C.F.R.] § 17.32 . . . . Minor
deviations from the requirements of § 17.32 . . . 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). In McNair v.
Shinseki, the Court held that “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.”
25 Vet.App. 98, 107 (2011). To determine whether failure to advise of a foreseeable risk
constitutes a minor, immaterial deviation, “the adjudicator not only must look to the likelihood of
an undisclosed risk materializing, but also recognize that some foreseeable risks may be minor
when compared to the foreseeable consequences of continuing without undergoing the treatment.”
Id. Recently, this Court found that the minor, immaterial deviation exception outlined in McNair
“does not apply when there is no attempt to obtain consent (as opposed to where defective consent
has been obtained).” Hatfield v. McDonough, No. 19-7165, __ Vet.App. , , 2021 WL 855176,
at *8 (Vet. App. Mar. 8, 2021)
.
The Board’s findings of whether a claimant has established a basis for compensation under
section 1151 are findings of fact reviewed under the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); McNair, 25 Vet.App. at 107; Look v. Derwinski, 2 Vet.App. 157, 161-62
(1992). “‘A finding is “clearly erroneous” when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As with any material issue of fact or law, the Board
must provide a statement of the reasons or bases for its determination “adequate to enable a
claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in
2 VA amended 38 C.F.R. § 17.32 on May 27, 2020, after the Board issued the decision on appeal. 85 Fed.
Reg. 31,609 (2020) (codified at 38 C.F.R. § 17.32). Generally, “retroactivity is not favored in the law.” Rodriguez v.
Peake, 511 F.3d 1147, 1152 (Fed. Cir. 2008).
5
this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert,
1 Vet.App. at 56-57.
As an initial matter, Mr. Garcia argues that 38 C.F.R. § 3.800 (2020) applies to his claim.
Appellant’s Informal Br. at 7. But § 3.800, which does not require VA fault to establish proximate
cause under section 1151, applies only to “claims received by VA before October 1, 1997.”
38 C.F.R. § 3.800; Secretary’s Br. at 8. Mr. Garcia’s appeal before the Court arises from a June
2012 claim, R. at 4246, therefore § 3.800 does not apply to the claim on appeal. If Mr. Garcia
believes that he filed a claim before October 1, 1997, for compensation under section 1151, he is
free to pursue that matter before VA.
In the April 2020 decision on appeal, the Board found that Mr. Garcia “incurred additional
disability following the July 1979 VA surgery.” R. at 7. This is a favorable finding that the Court
may not review. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board concluded
that the residuals were reasonably foreseeable and not due to negligence, R. at 8, but the Board did
not consider the alternative way to establish proximate cause: that VA furnished the care,
treatment, or examination without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1)(ii)
(2020). A possible lack of informed consent was at issue because the Board had previously
remanded Mr. Garcia’s claim in part to obtain the consent form for the July 1979 surgery. R. at
2620; see Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs when it
fails to adequately address all issues expressly raised by the claimant or reasonably raised by the
evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). But in
the decision on appeal, the Board failed to discuss whether Mr. Garcia provided informed consent
under §§ 3.361(d)(1)(ii) and 17.32, stating only that “the inability of VA to locate a document from
four decades prior does not necessitate the conclusion that proper consent was not obtained.” R. at 266.

The Board did not state whether there was evidence of informed consent, instead relying on its
finding that “the [v]eteran’s surgery residuals were common and anticipated.” R. at 8.
After the parties completed their briefing, the Court addressed a similar issue in Hatfield,
wherein the Board relied on McNair to find that informed consent was established because a
reasonable person would have undergone the procedure at issue if they had known the risks
involved, despite a lack of any evidence establishing informed consent. Hatfield, _ Vet.App. at , 2021 WL 855176, at *7. The Court noted that the minor-deviation exception did not act “as a means to find informed consent,” id. (emphasis in original), and that the Court could not allow VA 6 to rely on the “minor, immaterial deviation” from the informed consent criteria in § 17.32 to find consent in the first place, because VA “could excuse any failure to document informed consent in almost every situation” and the rule would be meaningless. Id., Vet.App. at _, 2021 WL
855176, at *9. The Court thus reversed the Board’s determination, finding that the Board had found
a lack of informed consent and that the minor-deviation exception explained in McNair does not
apply when “there is no finding of informed consent in the first place.” Id.
As in Hatfield, here it appears that to find that a missing consent form from the July 1979
surgery did not establish lack of consent, in its April 2020 decision the Board may have relied on
McNair to establish informed consent because the Board relied on the examiner’s opinion that Mr.
Garcia’s surgery residuals were common and anticipated. R. at 8. But the Board did not actually
state whether Mr. Garcia provided informed consent or apply §§ 3.361 or 17.32. Instead, the Board
stated that “the July 1979 consent form could not be located” and “the inability of VA to locate a
document from four decades prior does not necessitate the conclusion that proper consent was not
obtained.” Id. It is thus unclear whether there was evidence that Mr. Garcia had given informed
consent on a written consent form that simply could not be located, or whether the Board
incorrectly assumed that a lack of informed consent could be overcome by its finding that the
“[v]eteran’s surgery residuals were common and anticipated.” Id. The Board’s failure to apply the
correct law to the facts frustrates judicial review and renders its reasons or bases inadequate. See
Allday, 7 Vet.App. at 527; see also Gilbert, 1 Vet.App. at 56-57.
Although Mr. Garcia asks the Court to reverse the Board’s decision and award
compensation under section 1151, Appellant’s Informal Br. at 8, reversal is warranted when the
only permissible view of the evidence is contrary to the Board’s decision, Gutierrez v. Principi,
19 Vet.App. 1, 10 (2004), and the Board “has performed the necessary fact-finding and explicitly
weighed the evidence,” Deloach v. Shinseki, 704 F.3d 1370, 1380-81 (Fed. Cir. 2013). Because
the Board failed to discuss whether Mr. Garcia gave informed consent to the July 1979 VA surgery,
it did not make any factual findings that would facilitate judicial review as to whether under
§ 3.361(d)(1)(ii) and §17.32 his additional disability was proximately caused by the VA surgery.
The Court may not make these factual findings in the first instance. See Hensley v. West, 212 F.3d
1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial
fact finding”).
7
Accordingly, the Court finds that remand is warranted for the Board to consider whether
Mr. Garcia provided informed consent to the July 1979 VA surgery, considering the Court’s
decision in Hatfield and the provisions of §§ 3.361(d)(1)(ii) and 17.32. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “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”); see also Schertz v. Shinseki,
26 Vet.App. 362, 370 (2013) (remanding the matter for the Board to provide adequate reasons or
bases regarding informed consent). Because the Court finds that remand is warranted, the Court
will decline to address Mr. Garcia’s remaining arguments. See Best v. Principi, 15 Vet.App. 18, 20
(2001) (noting that the factual and legal context may change following a remand to the Board and
explaining 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”). On remand, he is free to submit additional evidence and
argument on the remanded matter and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West,
12 Vet.App. 369, 372 (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).
III. CONCLUSION
After consideration of the foregoing analysis and the parties’ briefs, and after a review of
the record, the Court VACATES the part of the Board’s April 21, 2020, Board decision that denied
compensation under section 1151 for post branchial cyst residuals and the Court REMANDS the
matter for readjudication consistent with this decision.
DATED: May 27, 2021
Copies to:
Juan J. Garcia
VA General Counsel (027)

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