One third of Veterans Lost Their Homes, Two Thirds are Living in Poverty

Full article at: Up to one third of veterans lost their homes since 2008 "Latest figures show that one in three families of war veterans, including active duty serving overseas, reservists and National Guard have lost their homes since 2008. Two thirds of those are now “split up” with at least one member listed as “homeless.” Almost all are, according to official figures, “living in poverty.” Banks have saddled military and veterans families with thousands of dollars in illegal charges, in most cases not only violations of the mortgage contract procedures themselves but, in many cases, outright criminal fraud."

Panel Decision, Explain the Assignment of Weight to Evidence, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), Savage v. Shinseki, 24 Vet.App. 259, 272 (2011)

Excerpts from decision below: "As with any relevant medical record, the signed consent form and treatment note are to be weighed by the Board, along with any other evidence in the record relevant to the issue.7 Savage v. Shinseki, 24 Vet.App. 259, 272 (2011) (noting that private medical record had to be weighed against other evidence in record); Roberts, supra. ========================================= "Nonetheless, this does not relieve the Board of its duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (Board has duty to weigh and determine credibility of all evidence, and explain its findings in statement of reasons or bases). Here, the Board essentially found that the preponderance of the evidence was against Ms. McNair's assertion that she was not informed that she might suffer from neuralgia as a result of the surgery, but the Board's statement of reasons or bases in support of its determination is inadequate. Its only stated basis for this finding is the bald statement that "based upon the evidence in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." No rationale is provided for concluding what a reasonable person could assume, frustrating judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). ---------------------------------------------------- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-1813 ANDREA M. MCNAIR, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued May 25, 2011 Decided November 18, 2011) Ronald L. Smith, with whom Virginia L. Carron and Troy E. Grabow were on the brief, all of Washington, D.C., for the appellant. Kristen D. King-Holland, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee. Before KASOLD, Chief Judge, and HAGEL and MOORMAN, Judges. KASOLD, Chief Judge: Veteran Andrea M. McNair appeals through counsel that part of a January 22, 2009, decision of the Board of Veterans' Appeals (Board) that denied disability compensation for neuralgia1 of the breast or focal nerve damage (hereinafter "neuralgia") as a result of surgery she underwent at a VA facility in June 1998. On appeal, Ms. McNair argues, inter alia, that the Board erred when it found that she was advised adequately of the potential adverse effects of her surgeryand therefore that her consent to the surgerywas informed. Ms. McNair seeksreversal of the Board's decision. The Secretary disputes Ms. McNair's contentions. The case was referred to a panel of the Court to address the evidentiary effect of a signed generic consent form when the patient signing the form asserts that she was not informed of a foreseeable risk of surgery. For the reasons stated below, we hold 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 "Neuralgia" is pain extending along the course of one or more nerves. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1281 (31st ed. 2007) [hereinafter "DORLAND'S"]. 1 risks involved with any particular treatment. We further hold that a failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. Becauseadditionalfindings offact arenecessaryto applytheseholdings, theBoard'sdecision will be set aside and the matters remanded for further adjudication. I. FACTS Ms. McNair served on active duty in the U.S. Army from August 1993 to May 1995. Prior to her service – in August 1989 – Ms. McNair underwent breast reduction surgery. She did not report any complications as a result of that procedure. On June 2, 1998, she underwent bilateral reduction mammoplasty at a VA hospital.2 Ms. McNair and her doctor signed an authorization for medical procedures form that reflects that she was advised as to the nature of the surgery, attendant risks involved, and expected results, but the form is general in nature and does not state the specific attendant risks that were discussed. Record (R.) at 448. In addition, a contemporaneously entered treatment notestatesthatthis wasMs.McNair's secondbreast-reduction surgery, whichwasrequired after Ms. McNair developed macromastia3 subsequent to her original surgery, with symptoms including neck, back, and shoulder pain, significant "bra strapping," and decreased physical activity due to the size and positions of the breasts. R. at 442. Another treatment note detailed the surgeon's conversation with Ms. McNair regarding the risks and tradeoffs of the surgery: The nature of the operation including the tradeoff b/t scar or [illegible] of excess skin, adipose and glandular tissue were discussed in great detail including the potential complications of infection, hematoma, partial or complete NAC [nipple-areolar complex] graft loss as well as irregular pigmentation during the healing [illegible]. The pt acknowledged the above and instruct[ed] to proceed. R. at 452. In November 1998, Ms. McNair filed a claim under 38 U.S.C. § 1151 for continual neuralgia resulting from breast reduction surgery. In a March 1999 rating decision, a VA regional office found A "mammoplasty" (or "mammaplasty") reduction is the plastic reconstruction of the breast to reduce size. DORLAND'S at 1116. 3 2 "Macromastia" is oversize of the breasts. DORLAND'S at 1108. 2 that Ms. McNair was not entitled to such benefits because "[b]oth the private and VA examiner indicate that such pain from nerveregeneration after the elective surgeryis an expected consequence of such surgery." R. at 435. Ms. McNair appealed that decision, stating that she did not experience pain after her first surgeryand reiterating that she was not informed of the chance of this type of pain occurring. Since then, this matter has been the subject of several Board decisions, a joint motion for remand granted bythis Court, and numerous VA medical examinations. Ms. McNair has contended throughout this time that she was not informed of the risk of neuralgia prior to her June 1998 surgery. In the decision on appeal, the Board found that Ms. McNair suffers from an additional disability due to neuralgia that was incurred as a result of the June 1998 surgery. The Board further found that neuralgia was a foreseeable risk of surgery but that Ms. McNair was not entitled to disability compensation because (1) there was no evidence of negligence or similar instance of fault on the part of VA in furnishing surgical treatment, and (2) Ms. McNair provided informed consent for treatment. Regarding the informed consent finding, the Board found that there was substantial compliance with 38 C.F.R. § 17.32, the regulation governing the provision and documentation of consent to medical procedures such as surgery. The Board further found that (1) there is no VA regulatory requirement that every foreseeable risk be documented in the record, (2) to the extent the record does not document that neuralgic scar pain was a possible risk, this omission was a minor deviation from the requirements of § 17.32 that was immaterial under the circumstances of this case, and (3) "in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." R. at 13. This appeal followed. II. ARGUMENTS Ms. McNair argues that none of the evidence in the record establishes that the specific risk of neuralgia was disclosed to her and that the only affirmative evidence of record on that point consists of her lay statements that she was not so informed – statements that she asserts were not weighed by the Board. She further argues that there is no support for the Board's finding that any failure to document neuralgia in the record was a minor and immaterial deviation under 38 C.F.R. 3 §3.361(d)(1)(ii). When questionedatoralargument,Ms. McNair clarifiedherposition, andasserted that the regulation's reference to "minor" and "immaterial" deviations includes only minor mistakes in documenting the consent, such as ascribing the wrong date to an otherwise properly executed consent form. She also argued that this case is distinguishable from Halcomb v. Shinseki, 23 Vet.App.234(2009),becauseinthatcasetheveterandid notprovide anysupporting evidence,"even [considering] his own laystatements," whereas here Ms. McNair consistentlyhas stated that she was not advised that she might suffer from neuralgia as a result of her surgery. The Secretary argues that the Board's findings of fact are not clearly erroneous because Ms. McNair signed a consent form in which she attested that she understood the nature of the proposed procedure, attendant risks involved, and the expected results. Because the form is congruent with VA regulatory and internal procedures, the Secretary cites to our decision in Halcomb and argues that it cannot be presumed that the risk of neuralgia was not discussed simply because it was not specifically recorded. As to Ms. McNair's contrary lay statements, the Secretary argues that the Board sufficiently addressed them when the Board found that the health care providers substantially complied with 38 C.F.R. § 17.32 and also that minor deviations from the requirements of § 17.32 that are immaterial will not defeat a finding of informed consent. In response to questioning at oral argument,theSecretaryassertedthatminor andimmaterialdeviationsunder§3.361( d)(1)(ii)include a failure to disclose a risk that, had it been known to a reasonable person in Ms. McNair's circumstances, would not havedeterredareasonableperson from undergoing surgery. Additionally, in response to questioning, the Secretary argued that the presumption of regularity applied to the facts of this case and Ms. McNair's statements alone were insufficient to rebut it. III. DISCUSSION The law authorizes VA compensation for disabilities arising from, inter alia, negligently provided VA medical or surgical treatment. 38 U.S.C. § 1151. The implementing VA regulation provides that negligence is established when the VA-provided treatment is the proximate cause of a disability and, inter alia, the treatment was provided without informed consent. 38 C.F.R. 4 § 3.361(c)(1),(d)(1)(ii) (2011);4 see also Halcomb, 23 Vet.App.at 237-38 (explaining the regulatory framework in detail). To be informed, consent must be given freely after careful explanation of the course of the treatment to be provided, including, inter alia, the reasonably foreseeable risks associated with the treatment.5 38 C.F.R. §§ 17.32(c) (2011),6 3.361(c)(1), (d)(1)(ii) (referring to 4 38 C.F.R. § 3.361 states: (c) Establishing the cause of additional disability or death. Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) . . . of this section . . . . (1) Actual causation required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. .... (d) Establishing the proximate cause of additional disability or death. The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. (1) Care, treatment or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgicaltreatment,or examinationproximatelycausedaveteran'sadditionaldisabilityor death, itmust be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (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. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirement of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. The VA regulation is consistent with the generally accepted rule that a physician must provide the patient with enough information to enable the patient's informed choice whether to undergo treatment, Canterbury v. Spence, 464 F.2d 772, 786 (D.C. Cir. 1972) (adopting the patient-perspective duty), which, in turn, is premised on the principle that a person "has a right to determine what shall be done with his own body," Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92 (N.Y. 1914) (Cardozo, J.). 6 5 38 C.F.R. § 17.32(c) states: General requirements for informed consent. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic 5 § 17.32). Additionally, 38 C.F.R. § 17.32(d) provides that "[t]he informed consent process must be appropriately documented in the health record." The Secretary determined that a signed, generic consent form satisfies this documentation requirement, and this determination was upheld in Halcomb, supra. Specifically left unaddressed in Halcomb, however, is the evidentiary effect of such a generic consent form when the scope of the advice provided to a patient-turned-claimant is contested by the claimant. 23 Vet.App. at 239-41 (rejecting the argument that use of the generic consent form established negligence per se because it did not list the foreseeable risks attendant with the treatment, and noting that the appellant had not presented any evidence – not even his own statement – that consent was not informed). A. Presumption of Regularity There is a presumption that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularityto the competence of VA examiners). Thepresumption applies with equal force whether its application favors the Government or the individual seeking disability compensation from the Government. Woods v. Gober, 14 Vet.App. 214, 218 ( 2000); cf. United States v. Chem. Found. Inc., 272 U.S. 1 (1926) (rejecting the Government's claim that sales of intellectual property were induced fraudulently because United States officers were presumed to be aware of the facts when the transactions were made absent clear evidence to the contrary). Whether the presumption of regularity attaches to the public actions of a public official is a question of law that the Court reviews de novo. Marsh, 19 Vet.App. at 386. Although Ms. McNair contended at oral argument that the presumption of regularity applies only to ministerial acts, the presumption is not so limited. Rizzo, 580 F. 3d at 1292 (noting that 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 or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeableassociated risks,complicationsor sideeffects; reasonableandavailablealternatives;andanticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 6 "nothing in this court's precedent limits the presumption [of regularity] to procedural matters" and further stating that the doctrine "'allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary'" (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed Cir. 2001))); see also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (applying presumption of regularityto medical examiners' overall competence, including abilityto understand instructions); Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) ( applying presumption to the "known course of business" of the U.S. Postal Service). Even though Ms. McNair's contention that the presumption of regularity only applies to ministerial acts is not the law, we do not agree with the Secretary that the presumption broadly applies to the scope of the advice and information given by a doctor to his patient. The issue before the Court is not resolved simply because the Board may presume the competence of VA medical professionals in general, or their ability to understand instructions, as were the circumstances, respectively, in Rizzo and Sickles, both supra. A VA doctor is a public official and completion of an informed consent form is required by VA regulation before certain treatment may be provided to a patient. However, it is the content of the advice and information provided to the patient in the face of a signed generic consent form that is contested here. As a matter of logic, such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not the "the product of a consistent, reliable procedure," which is the "root" of the presumption of regularity in our caselaw. Posey v. Shinseki, 23 Vet.App. 406, 410 (2010). It is precisely the diversity of patients, procedures, and circumstances that counsels against recognizing a 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. When there is a dispute concerning what information a doctor provided to his patient, a factual issue is raised whether a generic consent form indicating the patient was advised of the risks of surgery is more probative than the claimant's statements that a specific risk of the surgery was not discussed. See Salis v. United States, 522 F. Supp. 989, 1000 (M.D. Pa. 1981) (noting that when there is a general consent form and contrary lay assertions, the issue becomes one of credibility for the trier of fact). Because such a finding has its basis in fact, it is a determination to be made by the Board in the first instance, based on all of the evidence in the record. Roberts v. Shinseki, 7 23 Vet.App. 416, 423 (2010) (Board has duty to weigh and analyze all the evidence of record (citing Burger v. Brown, 5 Vet.App. 340, 342 (1993))). Here, contrary to Ms. McNair's contention, her statements are not the only evidence on the issue of informed consent. As with any relevant medical record, the signed consent form and treatment note are to be weighed by the Board, along with any other evidence in the record relevant to the issue.7 Savage v. Shinseki, 24 Vet.App. 259, 272 (2011) (noting that private medical record had to be weighed against other evidence in record); Roberts, supra. Moreover, to the extent Ms. McNair contends that witness testimony necessarily carries greater weight than documents, she is mistaken. E.g., United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948) (giving little weight to testimony in conflict with contemporaneous documents). Nonetheless, this does not relieve the Board of its duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (Board has duty to weigh and determine credibility of all evidence, and explain its findings in statement of reasons or bases). Here, the Board essentially found that the preponderance of the evidence was against Ms. McNair's assertion that she was not informed that she might suffer from neuralgia as a result of the surgery, but the Board's statement of reasons or bases in support of its determination is inadequate. Its only stated basis for this finding is the bald statement that "based upon the evidence in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." No rationale is provided for concluding what a reasonable person could assume, frustrating judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). Although remand generally is warranted because our review of the Board's findings is frustrated, see Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "wherethe Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its By referencing the consent form and the treatment note, we do not imply that there is no other evidence in the record pertaining to this issue. 7 8 determinations, or where the record is otherwise inadequate"), in this instance we must also address whether the failure to provide notice that neuralgia was a risk associated with surgery can constitute a minor deviation that does not defeat a finding that consent was informed. This is required because if such failure can be deemed minor, and if the Board properly found that it was, Ms. McNair's basis for claiming that her consent was not informed would fail, and remand would not be warranted. 38 U.S.C. § 7261(b)(2) (Court must consider rule of prejudicial error); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (same); cf. Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (under the prejudicial error rule, remand is unnecessary "where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision"). B. Minor Deviations Immaterial Under the Circumstances of a Case The Board decision on appeal states that any failure to document neuralgia was a minor deviation that was immaterial under the circumstances of this case. However, the Board failed to provide a rationale for this determination or explain why not mentioning neuralgia would constitute such a minor deviation. In response to questioning at oral argument, the Secretary stated that he viewed 38 C.F.R. § 3.361(d)(1)(ii) to mean the failure to advise a patient about a reasonably foreseeable consequence of treatment is a minor, nonmaterial deviation if a reasonable person under the circumstances would have consented to the treatment anyway. When the Secretary offers an interpretation of his own regulation for the first time in litigation, that interpretation generally is entitled to deference "'as long as there is no reason to suspectthattheinterpretation doesnot reflecttheagency's fairandconsideredjudgment.'" Singleton v. Shinseki, 23 Vet.App. 376, 379 (2010) (quoting Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)) (internal quotation marks omitted); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ("Deference to what appears to be nothing more than an agency's convenient litigating position would be entirely inappropriate."); Reizensteinv.Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (noting that, generally, an "agency's construction of its own regulations is of controlling weight unless it is plainly erroneous or inconsistent with the regulation"). Here, a fair reading of the regulation and the Secretary's stated understanding of the regulation when promulgated, 69 Fed. Reg. 46,426, 46,429 (Aug. 3, 2004) ("[ T]he provisions of 9 § 3.361(d)(1) are intended merely to restate, more simply and clearly, the [common law] standards governing determinations of negligence."), support the Secretary's interpretation presented during oral argument and, for the reasons stated below, we find this interpretation to be a reasonable application of the statute. 38 U.S.C. § 7261(a)(1) (questions of law are reviewed de novo); Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation is a question of law . . . ."); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."); Forshey v. Principi, 284 F.3d 1335, 1356 ( Fed. Cir. 2002) ("[W]e may decide to apply the correct law even if the parties do not argue it, if an issue is properly before this court."). The text of § 3.361(d)(1)(ii) and its placement in the overall regulatory scheme demonstrate that the term "minor deviations" includes substantive as well as technical or procedural errors. See Buczynski v. Shinseki, 24 Vet.App. 221, 227 (2009) (noting that regulatory interpretation focuses on the regulatory text as well as the overall structure of the regulatory provisions). The regulation states that a finding of informed consent will not be defeated bya minor deviation that is "immaterial under the circumstances of a case." 38 C.F.R. § 3.361(d)(1)(ii). With regard to substantial compliance and minor deviations,§3.361(d)(1)(ii)referstwiceto §17.32asawhole, whichcontains both procedural and substantive requirements. Compare 38 C.F.R. § 17.32(d) (" Documentation of informed consent."), with 38 C.F.R. § 17.32(c) ("General requirements for informed consent."). The cross reference to both proceduralandsubstantiverequirementssupports the conclusion that even a failure to comply with a substantive requirement could, under some circumstances, constitute a minor, immaterial deviation. See Buczynski, supra (noting that specific limitations of regulatory provisions generally are noted if intended). This interpretation also is consistent with common law principles that form the basis of § 3.361(d)(1), as stated by the Secretary when he promulgated this regulation. See 69 Fed. Reg. at 46,429. Pertinent hereto, common law generally holds that "the test for determining whether a particular peril must be divulged is its materiality to the patient's decision." Canterbury, 464 F.2d 10 at 791; see also Canesi v. Wilson, 730 A.2d 805, 812 (N.J. 1999); Getchell v. Mansfield, 489 P.2d 953, 955-56 (Or. 1971). The majority of jurisdictions also determine "materiality" based upon an objective standard that, at least in part, asks whether the potentially undisclosed risk is of the type that if known by a reasonable person under similar circumstances would cause that person not to have undergone treatment.8 See, e.g., Bernard v. Char, 903 P.2d 667 (Haw. 1995); Canterbury, 464 F.2d at 786-87; K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995); Schreiber v. Physicians Ins. Co. of Wis., 588 N.W.2d 26, 33 (Wis. 1999); Sherwood, 805 P.2d at 465 ("Applying the objective test is fair to the patient because it requires consideration by the factfinder of what a reasonable person with all of the characteristics of the plaintiff would have done under the same circumstances . . . and is likewise fair to the physician-defendant because the physician is not placed in jeopardy of the patient's hindsight."). To answer this question, 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. See Smith v. Cotter, 810 P.2d 1204, 1209 (Nev. 1991) (determining that the plaintiff's thyroid problem was a minor irritant when compared to the risk of permanent vocal cord paralysis). In sum, given the regulatory text and structure as well as the history of the promulgation of § 3.361(d)(1)(ii) and the general common law understanding of informed consent, we agree with the Secretary's interpretation 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. Of course, such an assessment is a factual one for the Board to make in the first instance. Roberts, 23 Vet.App. at 423. The minority of jurisdictions use a subjective standard to determine materiality, under which a patient must show that she herself (as opposed to a reasonable person in her position) would not have consented to the treatment had she been adequately informed. Sherwood v. Carter, 805 P.2d 452, 465 (Idaho 1991). There is no reason to believe that the Secretary intended to apply this position, see e.g., 69 Fed. Reg. at 46,429, and the Court declines to adopt it, given the inherent difficulties it imposes on the finder-of-fact, as well as the possibility that a patient who dies as a result of a medical procedure will be foreclosed from any recovery because she cannot testify as to what her subjective belief was at the time of the procedure. See Fain v. Smith, 479 So.2d 1150 (Ala. 1985 ) (noting the inherent difficulties). 8 11 Here, the Board provided no discussion as to whether a reasonable person in Ms. McNair's situation would have proceeded with the surgery even if advised of the risk that she could suffer from neuralgia as a result of that surgery. Moreover, the Board did not discuss, and the record does not reflect, the consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery. In the absence of such determination and a properly developed record, or other explanation supporting the Board's bald conclusion, judicial review of this issue is frustrated. 38 U.S.C. § 7104(d)(1) (requiring a statement of reasons or bases in support of the Board's findings and conclusions on all material issues presented on the record); Allday, supra. C. Remand Remand is warranted for the Board to address, in the first instance, and to develop, as needed,9 facts related to the scope of information provided to Ms. McNair regarding the foreseeable risks of her treatment, the foreseeable consequences of failing to undergo treatment, and whether a reasonable person would have proceeded with the surgery even if advised of the risk of neuralgia pursuant to § 3.361(d)(1)(ii). Tucker, supra; Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand the case for the Board to find facts in the first instance, subject to later review by Court). On remand, Ms. McNair may present, and the Board must consider, any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. IV. CONCLUSION Upon consideration of the foregoing, the Board's January 22, 2009, decision is SET ASIDE and the matter REMANDED for adjudication consistent with this decision. Of note, the record reflects that Ms. McNair's representative requested that the Secretary obtain further information from the VA hospital regarding her informed consent but the Board found that any such effort would be futile because the evidence already was sufficient for an adequate determination. 9 12 13

Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011), Opinion Based Upon Incomplete Factual Premise

Excerpt from decision below: "Although there is nothing in the record to support the VA examiner's statement about the veteran's amended death certificate, the remainder of the examination may still be of some probative weight. R. at 132-33. The VA examiner reviewed the claims file and medical history and conferenced with a cardiologist before expressing the negative nexus opinion. Id. Additionally, the VA examiner provided an opinion prior to the veteran's death that expressed that the veteran's heart condition was not secondary to PTSD and that his heart condition was not aggravated by PTSD. R. at 441-42. The Board is the appropriate one to determine whether to afford weight to this examination. Although the VA examiner's opinion was defective in one respect, it discussed a number of risk factors not related to service and the private opinions do not reflect such a discussion. See Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011)(Lance, J., concurring) (noting that if an opinion is based upon an incomplete factual premise, it may be given reduced weight)." =============================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4514 LAVONNE K. SMART, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Lavonne K. Smart, through counsel, appeals an August 25, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for the cause of the veteran's death. Record (R.) at 3-17. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the August 25, 2009, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The veteran served on active dutyin the U.S. Armyfrom September 1942 to December 1945. R. at 113. At the time of his death in October 2006, he was service connected for, among other disabilities, post-traumatic stress disorder (PTSD), rated as 70% disabling, and had a total disability rating based on individual unemployability (TDIU). R. at 483-96. Prior to his death, he sought service connection for coronary artery disease secondary to his service- connected PTSD. Id. The original death certificate issued in October 2006 reflected that the immediate cause of the veteran's death was hypertensive and atherosclerotic heart disease ( ASHD) with diabetes and Parkinson's disease contributing to his death. R. at 426. An amended death certificate issued in January 2007 showed PTSD as an additional cause of death. R. at 366. In a January 2005 VA medical opinion, a VA examiner, nurse practitioner Jacqueline Lamphier, opined that the veteran's ASHD was not secondary to PTSD or aggravated by it, but in fact his ASHD was aggravated by his hypertension, hyperlipidemia, diabetes, aging, and being overweight and that all of these in turn were aggravated by the veteran's cigarette smoking. R. at 441-42. In an October 2007 report, the same examiner opined that there was no nexus between the veteran's service-connected PTSD and his death. R. at 132-35. A November 2007 statement (R. at 65) from a private treating physician, Dr. Wilson, and a December 2007 letter (R. at 70) from a licensed counselor, Ms. Lower, related the veteran's death to his service- connected PTSD. In the August 2009 decision on appeal, the Board denied entitlement to service connection for the cause of the veteran's death, finding that the probative evidence of record is against a finding that the veteran's service-connected PTSD caused or contributed substantially or materially to his death. II. ANALYSIS The Secretaryconcedes Board error in regard to this appeal. Secretary's Brief (Br.) at 7. The Court agrees that the Board erred; therefore, the only dispute is whether remand or reversal is the appropriate remedy. Remand is generally the appropriate remedy when the Board has incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate. Gutierrez v. Principi, 19 Vet.App. 1, 10 ( 2004) (citing Falk v. West, 12 Vet.App. 402 (1999)); Tucker v. West, 11 Vet.App. 369, 374 (remanding to permit the Board to make the appropriate required determinations under the correct legal standards). "[R]eversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision." Gutierrez, 19 Vet.App. at 10 (citing Johnson v. Brown, 9 Vet. App. 7, 10 (1996)); see also Gilbert v. Derwinski, 1 Vet.App.49, 52-53 (1990) (explainingthat the Court mayreverse the Board's determinations of material fact if theydo not have a plausible basis in the record). However, reversal may be appropriate even if there is "existence of some controverting evidence (that is, evidence that is not in the appellant's favor)." Padgett v. Nicholson, 19 Vet.App. 133, 147 (en banc) (unanimously rejecting proposition that "a Board finding cannot be clearly erroneous unless the evidence against that finding is uncontroverted") (opinion issued nunc pro tunc to November 2, 2004, sub nom. Padgett v. Peake, 22 Vet.App. 159 (2008) (en banc)). Because reversal is a greater remedy than remand, the Court will address the appellant's argument for reversal first. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (explaining "if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedyno broader than a remand"). Here, the appellant argues that reversal is the appropriate remedy because the two favorable privateopinionsareentitledto fullprobativevaluebecausetheBoard'srationalefordiscountingeach of them was based on clearly erroneous findings of fact. Appellant's Br. at 8-9. The appellant also argues that the Board's finding that the October 2007 VA examiner's opinion is worth any probative value at all was implausible based on the evidence of record. Id. She argues that the Court should reverse the Board's clearly erroneous findings of fact with regard to each of the medical nexus opinions of record, and reverse the Board's finding that the October 2007 VA examiner's opinion is worth more probative weight than the private providers. Id. She argues that, once the Board's "clearly erroneous" findings of fact are reversed, the record will consist of two fully favorable opinions and one non-probative negative opinion, as well as favorable articles discussing a link between PTSD and heart disease in older men, a death certificate listing PTSD as a cause of death, and treatment records documenting the veteran's treating physician's concern that the PTSD was exacerbating or contributing to the heart disease, and that the evidence will then preponderate in favor of the claim. Id. The Secretaryconcedes that the Court should remand the Board's decision because the Board failed to adequately address the medical and lay evidence of record. Secretary's Br. at 8-15. The Secretarynotes that, while discussing the VA examiner's October 2007 opinion, the Board indicated that the VA examiner had noted that the veteran's death certificate was revised per family request to show an additional cause of death as PTSD because the veteran was service connected for PTSD and was not service connected for hypertensive and ASHD, diabetes, or Parkinson's disease. Secretary's Br. at 10. The Secretary admits that there is nothing in the record to support this statement and that the record did not provide any basis for the issuance of an amended death certificate in January 2007. Id. He concedes that the Board should have considered this inconsistency between the VA examiner's findings and the record and discussed whether there was bias in the examiner's opinion. Secretary's Br. at 10-11. The Secretary also concedes that neither the October 2007 VA examiner nor the Board adequately discussed medical articles (R. at 63-85) submitted by the appellant and the two private examiners that reported that there was an increased risk of hypertension and circulatorydisease among veterans diagnosed with PTSD. He submits that such an error requires remand for the Board to consider the favorable evidence and whether an additional VA opinion was needed. The Secretaryalso concedes that the Board's reasons or bases for discounting the two private examiners' opinions were inadequate. Secretary's Br. at 12. He admits that the Board incorrectly found that the opinions were conclusory when in fact both physicians provided rationales for their opinions and supplied articles summarizing medical research supporting their positions. Id. He also identifies a Colvin violation where the Board assigned less probative value to the private physicians' statements based on the fact that the veteran was diagnosed with ASHD manyyears before there was any indication he had PTSD, essentially exercising independent medical judgement as there is no evidence that this fact has any medical significance. Secretary's Br. at 13; Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). He argues that remand is needed to allow the Board to correct its flawed rationale for awarding less probative value to the private physicians opinions. Id. The Secretary then identifies an additional basis for remand. Secretary's Br. at 13. In discounting the appellant's assertions that the veteran's service- connected PTSD was a contributory factor in his death and that the veteran developed ASHD as a result of his PTSD, or in the alternative, that the PTSD aggravated the heart disease to aid in causing the veteran's death, the Secretaryconcedes that the Board's dismissal of her layassertions without first determining whether the issue is one for which lay evidence is competent was in error. Secretary's Br. at 13-14; see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Secretary maintains that remand is the appropriate remedyfor the Board's failure to provide adequate reasons or bases as to the above discussed points. Secretary's Br. at 16-22. In her reply brief, the appellant argues that remand is not necessary because there are no factual disputes that must be resolved by the Board in the first instance and that, contrary to the Secretary's concessions, the Board's statement of reasons or bases is adequate for both her understanding and for judicial review. Appellant's Reply Br. at 1-13. In response to the Secretary's various concessions, the appellant argues that remand is not required for the Board to discuss in the first instance whether the VA examiner's opinion exhibits bias; the Board adequately discussed the medical articles attached to the favorable medical opinions; remand for the Board to reconsider the lay evidence will only create an unnecessary burden on the Board; remand is unnecessary for the Board to discuss whether another VA examination and opinion is warranted; and remand for the Board to discuss whether a September 2004 opinion constitutes negative evidence is both unnecessary and inappropriate. Appellant's Reply Br. at 7-13. The Court agrees with the Secretary and concludes that remand is the appropriate remedy. As stated earlier, reversal is only appropriate where "'the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." ' Gilbert, 1 Vet.App. at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Contrary to the appellant's argument, it is not clear that the Board erred in according any probative weight to the October 2007 VA examiner's opinion because it was based on an inaccurate factual premise. Appellant's Br. at 15-16; Appellant's Reply Br. at 2-3. Although there is nothing in the record to support the VA examiner's statement about the veteran's amended death certificate, the remainder of the examination may still be of some probative weight. R. at 132-33. The VA examiner reviewed the claims file and medical history and conferenced with a cardiologist before expressing the negative nexus opinion. Id. Additionally, the VA examiner provided an opinion prior to the veteran's death that expressed that the veteran's heart condition was not secondary to PTSD and that his heart condition was not aggravated by PTSD. R. at 441-42. The Board is the appropriate one to determinewhetherto afford weight to this examination. Although the VA examiner's opinion was defective in one respect, it discussed a number of risk factors not related to service and the private opinions do not reflect such a discussion. See Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011)(Lance, J., concurring) (noting that if an opinion is based upon an incomplete factual premise, it may be given reduced weight). Accordingly, there is still substantial doubt as to how to characterize the cause of the veteran's death. Cf. Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) (concluding that the Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection). Where, as here, the Board failed to provide an adequate statement of reasons or bases for its conclusion or where the record is otherwise inadequate, remand, and not reversal, is the appropriate remedy. Tucker, 11 Vet.App. at 374; Hicks v. Brown, 8 Vet.App. 417, 422 (1995). On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in her briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's August 25, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 21, 2011 Copies to: Amy F. Fletcher, Esq. VA General Counsel (027)

Single Judge Appication, Mayhue, 24 Vet.App. at 279-80, 3.156(c)(2) Cannot be Used to Deny EED When Records Were Available to VA

In Mayhue, the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. 24 Vet.App. at 279-80. The Court observed that it was VA's failure to use the information that it always had available, rather than any inaction on the part of the claimant, that prevented the agency from corroborating the stressor at an earlier date. Id. =========================== Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4735 SAMUEL E. TAYLOR, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, through counsel, appeals from the December 23, 2009, decision of the Board of Veterans' Appeals(Board) that denied entitlement to an effective date earlier than February4, 1998, for the grant of service connection for post-traumatic stress disorder (PTSD). This appeal is timely and the Court has jurisdiction to review the Board's decision pursuant to 38U.S.C. §§ 7252(a)and 7266. Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25- 26 (1990). On March 28, 2011, the appellant filed a motion for oral argument pursuant to Rule 34 of the Court's Rules of Practice and Procedure. However, because oral argument would not "materially assist in the disposition of this appeal," the motion will be denied. Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per curiam). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this opinion. I. FACTS The appellant served on active duty in the U.S. Army from September 1966 to September 1968, including service in Vietnam. Record (R.) at 461, 618-20. In May 1992, the regional office (RO) denied his claim for service connection for PTSD because a recent VA examination did not include a diagnosis of PTSD. R. at 570-71. The appellant did not file a timely appeal of that decision and it became final. R. at 494-95, 498-99, 550-59. The RO denied the appellant's application to reopen his claim in May 1994. R. at 489-90. He did not appeal this decision and it became final. On February 4, 1998, the appellant filed an application to reopen his claim for service connection for PTSD. R. at 482. The appellant was afforded a VA examination in March 1998. The examiner diagnosed the appellant's psychiatric disorder as major depression with psychotic features and concluded that the appellant did not meet the requirements for a PTSD diagnosis. R. at 468. In April 1998, the RO denied the appellant's claim as not well grounded due to the lack of a medical diagnosis of PTSD. R. at 464-66. The appellant perfected an appeal of the RO decision. R. at 427, 437-58. He also submitted additional evidence to support his claim, to include a statement in which he specificallystated, amongother things, that he was assigned to the 145th Aviation Battalion when a convoyhe was in was ambushed and the driver of the truck in front of his, named Washington, was shot. R. at 443. In October 2001, evidence received from the U.S. Armed Services Center for Unit Records Research (CURR) verified two of the appellant's stressors: (1) that he was exposed to rocket and mortar attacks at Ben Hoa in January 1968; and (2) that Specialist Four ( SP4) Washington was wounded in action on January 30, 1968, from small arms fire and was assigned to the same higher headquarters as the appellant. R. at 330. In February 2002, the RO granted service connection for PTSD and assigned a rating of 100%, effective April 13, 1999. R. at 313-23. The appellant perfected an appeal of the effective date and, in May 2007, the Board granted entitlement to an effective date of February4, 1998, but no earlier, for the grant of service connection for PTSD. R. at 78-85, 113-15, 278. In June 2007 the appellant filed a motion for revision of the May 2007 Board decision on the basis of clear and unmistakable error (CUE). R. at 73. While his motion for revision of the May 2007 Board decision was pending, the appellant appealed the Board's 2007 decision to the Court and, in July2009, the Court remanded the Board's 2007 decision pursuant to a joint motion for remand. R. at 38, 39-44. That same month, the Board dismissed the appellant's motion for revision of the Board's decision on the basis of CUE because the 2007 Board decision was not final. R. at 26-29. On December 23, 2009, the Board issued its decision on appeal in which it denied 2 entitlement to an effective date prior to February 4, 1998, for service connection for PTSD. R. at 3- 14. This appeal followed. The appellant argues for reversal or, in the alternative, for remand. Appellant's Brief (Br.) at 7-24. The Secretary argues for affirmance of the Board's decision. Secretary's Br. at 8-28. II. ANALYSIS The Board's determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). "'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)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. Id. The Board, in rendering its decision, is required to provide a written statement of the reasons or bases for its "findings and conclusions . . . on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert, 1 Vet.App. at 56-57. The determination of the effective date for an original claim or a reopened claim is governed by38 U.S.C. § 5110(a), which provides: "Unless specificallyprovided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 C.F.R. § 3. 400 (2011). However, pursuant to 38 C.F.R. § 3.156(c)(1), "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 3 Pursuant to § 3.156(c)(3), "[a]n award made based all or in part on the records identified by paragraph (c)(1) . . . is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3) (2011). An exception to the foregoing is provided under 38 C.F.R. § 3.156(c)(2), which provides that paragraph ( c)(1) does not apply "to records that VA could not have obtained when it decided the claim . . . because the claimant failed to provide sufficient information for VA to identifyand obtain the records ." 38 C.F.R. § 3.156(c)(2). Prior to VA's 2006 amendment to 38 C.F.R. § 3.156(c), "'§ 3.400(q)(2) govern[ed] the effective date of benefits awarded when VA reconsider[ed] a claim based on newlydiscovered service department records.'" Mayhue v. Shinseki, 24 Vet.App. 273, 277 (2011) (quoting New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005)). Read together, §§ 3.156(c) and 3.400(q)(2) provided that the effective date for an award of benefits based on newly discovered service department records that were previously unavailable "may relate back to the date of the original claim or date entitlement arose even though the decision on that claim may be final under [38 C.F.R.] § 3.104." Id. The appellant first argues that the Board impermissibly applied the current version of 38 C.F.R. § 3.156(c) rather than the earlier, more favorable, version of the regulation. Appellant's Br. at 10-14. He specifically objects to the Board's reliance on § 3.156( c)(2), which was added in 2006. Appellant's Br. at 12-13. The Secretary argues for affirmance of the Board's decision. Secretary's Br. at 8-28. He contends that there is a plausible basis for the Board's decision that an effective date prior to February4, 1998, is not warranted because the earliest effective date available in the instant case is the date of receipt of the appellant's claim to reopen, or February 4, 1998. Secretary's Br. at 9-13. He specifically argues that neither the 1998 version of § 3.156(c) nor the current version of that regulation would allow for an earlier effective date than that assigned because the appellant did not meet the criteria for PTSD since he lacked a diagnosis of PTSD until April 1999. Secretary's Br. at 17-18. In fact, the Secretary distinguishes the instant appeal from that in Vigil v. Peake, 22 Vet.App. 63 (2008), on that basis. Secretary's Br. at 19. The appellant provides no support for his contention that the earlier version of the regulation is more favorable than the current version of the regulation. Appellant's Br. at 11-14. As pointed out by the appellant, the Board focused on the current version of § 3.156( c) and did not address the 4 earlier version of the regulation, to include whether it was more favorable than the current version. Appellant's Br. at 21-22. The Board's failure to address this matter renders its reasons or bases inadequate for judicial review in the instant case. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (holding "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should . . . apply unless Congress provided otherwise or permitted the Secretary . . . to do otherwise and the Secretary did so.")), overruled in part by Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); Gilbert, supra; see also Baker v. West, 11 Vet. App. 163, 168-69 (1998) (remanding for the Board to determine in the first instance whether a revised version of a regulation was more favorable to an appellant than a previous version). Additionally, review of the Board's decision reveals that the Board's determination that the appellant did not provide sufficient stressor information to permit corroboration of his PTSD stressors prior to February 1998 is not supported by an adequate statement of reasons or bases. R. at 13-14; see Gilbert, supra. In Mayhue, the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. 24 Vet.App. at 279-80. The Court observed that it was VA's failure to use the information that it always had available, rather than any inaction on the part of the claimant, that prevented the agency from corroborating the stressor at an earlier date. Id. The Board in the instant case conceded that the RO granted service connection for PTSD, at least in part, based on CURR's verification of the appellant's contention that he was exposed to rocket fire and enemy attacks at Ben Hoa in January1968 and that he witnessed the injury of a fellow soldier who was wounded in action in January 1968. R. at 13. The Board also correctly noted that the reference to "official service department records" in § 3.156(c) " include[d] CURR reports such as the reports associated with the [appellant's] claims folder in October 2001." R. at 11; Vigil, supra. However, the Board further found that "the detailed stressor information upon which the CURR verification was based was not of record until the [appellant] filed his claim to reopen in February 1998. Inconjunctionwith his February1998claimto reopen,[he] essentially provided appropriately detailed information . . . which enabled the RO to make the CURR request in January 2001 which 5 led to stressor verification." R. at 13-14. The Board further found that prior to February 1998, the appellant's descriptions of in-service stressors were without sufficient detail to allow for verification and that § 3.156(c)(2) was therefore applicable. R. 13-14. The appellant correctly notes that service personnel records before the VA as early as August 1991 showed the dates that he was stationed at Ben Hoa. Appellant's Br. at 17; R. at 615-20. He further alleges that these records together with his April 1992 and February1993 stressor statements provided sufficient information to permit verification of his PTSD stressor concerning mortar and rocket attacks at Ben Hoa. Appellant's Br. at 7. Because the Board does not address this information in the context of the sufficiency of the appellant's stressor information prior to February 1998 or in the context of Mayhue, which was issued after the Board's decision in the instant case, remand is required. See Mayhue and Gilbert, both supra. Because it has been determined that remand is appropriate for the foregoing reasons, the Court will not address the appellant's other arguments for remand. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one theory moots the remaining theories advanced on appeal). On remand, the appellant may present any additional evidence and argument in support of the matter remanded, and the Board must consider any evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. Although the appellant argues for reversal of the Board's decision, his argument is not persuasive. Appellant's Br. at 7-19. Reversal is the appropriate remedy only in cases in which the only permissible view of the evidence is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Generally, where the Board has incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate, remand is the appropriate remedy. See Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that remand is appropriate when "the Court finds that the Board decision is defective in its reasons or bases thereby preventing proper review by the Court"); Tucker v. West, 11 Vet.App. 369, 374 (1998). Here, the Court is precluded from reviewing the Board's decision due to its inadequate reasons or bases. Thus, reversal is not the 6 proper remedy; the Court will vacate the decision and remand the matter on appeal for readjudication. III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the December 23, 2009, Board decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 10, 2011 Copies to: Sean A Ravin, Esq. VA General Counsel (027) 7

Singe Judge Appication, Service Connection on Secondary Basis, 38 C.F.R. § 3.310(a) (2011), Allen v. Brown, 7 Vet.App. 439, 448 (1995)

Excerpt from decision below: "A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, "VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations," regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)." ======================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1878 ALBERT ROSEN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before IVERS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30 (a), this action may not be cited as precedent. IVERS, Judge: Albert Rosen appeals through counsel a May 18, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for bilateral hearing loss and tinnitus. Record (R.) at 3-31. Mr. Rosen's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues that they believe require a precedential decision of the Court. Because the Board's decision is supported by an adequate statement of reasons or bases and is not otherwise clearly erroneous, the Court will affirm the May 2010 Board decision. I. FACTS Mr. Rosen served on active duty in the U.S. Army from September 1948 to August 1949 and from September 1950 to September 1952. R. at 293, 296. In January 1949, while flying during service, Mr. Rosen ruptured his right ear drum. R. at 230-31. Although he suffered a decrease in hearing as a result of that an incident, a September 1950 audiogram was " essentially negative" for hearing loss. R. at 230. At his September 1952 separation examination, Mr. Rosen satisfactorily completed a voice whisper test. R. at 222. Shortly after his separation from service, Mr. Rosen applied for and was granted service connection fortheresidualsofhisrupturedright eardream. SubsequentVAexaminationsconducted in 1960 and 1966 reflected normal hearing. R. at 195, 213. In January2006, Mr. Rosen filed a claim for service connection for bilateral hearing loss and tinnitus. R. at 179. In support of his claim, he submitted private treatment records showing a diagnosis of bilateral hearing loss. R. at 189. He also submitted a medical opinion from Dr. Suresh Raja that Mr. Rosen had hearing loss that is "worse than should be expected for a man his age" and that "it is as likely as not his hearing loss was incurred during his military service." R. at 172. In May 2006, Mr. Rosen was afforded a VA audiological examination. R. at 159. The examiner reviewed Mr. Rosen's claims file and recorded his medical history, including his reports of noise exposure in Korea. After performing audiological testing, the examiner opined that [Mr. Rosen]'s hearing loss and accompanying tinnitus are not as likely to be from noise exposure incurred in military service. Noise is most likely the cause of this hearing loss, but documentation shows normal hearing before discharge and initial testing done as a civilian was also within normal limits. Noise exposure was positive in the veteran's occupation. It is likely that this occupational noise exposure and aging of the mechanism is causal for [his] hearing loss. R. at 161. In a May 2006 rating decision, a VA regional office denied Mr. Rosen's claims for service connection for bilateral hearing loss and tinnitus. Mr. Rosen appealed that decision to the Board. In support of his appeal, he submitted an additional medical opinion from Dr. Raja, stating: Mr. Albert Rosen has been a patient of mine since December 2005. He has a history of military service and is a veteran of the Korean War. He was exposed to prolonged noise without hearing protection and thus has experienced sensorineural hearing loss and tinnitus. It is my opinion that his hearing problem and worsening tinnitus are more likely than not[ ] due to his active military service. R. at 151. In the May 2010 Board decision currently on appeal, the Board found that Mr. Rosen's bilateral hearing loss and tinnitus were not related to his active service. R. at 3-31. 2 II. ANALYSIS A. Secondary Service Connection On appeal, Mr. Rosen argues that the Board clearly erred by not addressing whether his hearing loss is secondary to his service-connected ruptured right ear drum. Appellant's Brief (Br.) at 5-7. In response, the Secretary asserts that the Board did address the theory of secondary service connection in its decision. A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, "VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations," regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As with any finding or conclusion on a material issue of fact or law, the Board is required to provide a written statement of reasons or bases for it determination of a claimant's entitlement to secondary service connection. See 38 U.S.C. § 7104(d)(1). Here, the Court concludes that although the Board did not explicitly discuss the laws and regulations that pertain to secondary service connection, it nonetheless provided an adequate statement of reasons or bases addressing this theory of entitlement. First, the Board acknowledged that Mr. Rosen was service connected for the residuals of a ruptured right ear dream, and therefore analyzed his right and left ear hearing loss separately. The Board stated that "[Mr. Rosen] contends that he developed right ear hearing loss as the result of acoustic trauma, or due to a rupture of the tympanic membrane during service," therefore identifying Mr. Rosen's contention that there was a nexus between his current hearing loss and his service-connected condition. R. at 9. The Board next noted Mr. Rosen's in-service ruptured right ear drum, stating "[i] nsofar as this incident is raised as a cause of [his] right ear hearing loss, the Board concludes that [Mr. Rosen] did experience a ruptured right ear drum during service." R. at 10. The Board then discussed the fact that Mr. Rosen had some hearing loss after the in-service incident, but that later in- service and post service medical records showed normal hearing. The Board stated: "[W]ith evidence of the rupture of the tympanic 3 membrane [ ] during service, the determinative issue in regards to service connection for right ear hearing loss is whether there is a connection between the incident in service and [Mr. Rosen]'s current hearing loss." R. at 12. After discussing the probative value of the various medical opinions of record and concluding that Mr. Rosen did not have the required medical expertise to opine that his current hearing loss was related to his ruptured right ear drum, the Board concluded that Mr. Rosen's right ear hearing loss was not related to his active service, including to his ruptured right ear drum during service. R. at 16. Therefore, with regard to Mr. Rosen's argument that the Board erred when it failed to explicitly address secondary service connection, the Court holds that the Board's statement was adequate to facilitate judicial review. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (stating that the Board's statement of reasons or bases must be adequate to enable a claimant to understand the precise basis of the Board's decision, as well as to facilitate judicial review). Even assuming that the Board should have cited to 38 C.F.R. § 3.310, and specifically to its requirements, such an error was nonprejudicial because the Board nevertheless made factual findings relevant to a secondary- service-connection analysis. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this Court must take due account of the rule of prejudicial error). B. Benefit of the Doubt Mr. Rosen's next argument on appeal is that the Board clearly erred in not affording him the benefit of the doubt in his appeal. Appellant's Br. at 8-10. In response, the Secretaryasserts that the Board properly weighed the evidence of record and determined that the preponderance of the evidence was against Mr. Rosen's claims and, therefore, that the benefit of the doubt was not applicable. "[W]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). The benefit of the doubt standard is only applicable when the requirement of an "approximate balance of positive and negative evidence" is met. Ferguson v. Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001). In the present case, the Court concludes that the Board underwent a detailed balancing of all of the evidence of record. It fully and adequately explained why the negative evidence of record 4 outweighed the evidence that was favorable to Mr. Rosen's claims, including the various medical opinions and lay statements of record. It then concluded that "the preponderance of the evidence is against service connection for right ear hearing loss, [left ear hearing loss, and tinnitus], with no reasonable doubt to resolve in the Veteran's favor." R. at 17, 24, 28. As noted above, the benefit of the doubt rule is not triggered unless there is an "approximate balance of positive and negative evidence." Ferguson, 273 F.3d at 1076. As the Board found that the preponderance of the evidence was against Mr. Rosen's claims and fully explained its conclusions, the benefit of the doubt doctrine had no applicability. The Court therefore concludes that the Board adequately explained its reasoning on this issue. See id. C. Inextricably Intertwined Claims Finally, Mr. Rosen argues that his claim for service connection for tinnitus is inextricably intertwined with his claim for service connection for bilateral hearing loss and, therefore, should his hearing loss claim be remanded, his tinnitus claim should also be remanded. Appellant's Br. at 11- 12. This Court has held that "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the claim] meaningless and a waste of judicial resources,' the two claims are inextricably intertwined." Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 ( 2009)). Here, for the reasons outlined above, the Court concludes that remand is not necessary for Mr. Rosen's bilateral hearing loss claim and, as a result, his argument that his tinnitus claim is inextricably intertwined with that claim is rendered moot. III. CONCLUSION Upon consideration of the foregoing, the May 18, 2010, Board decision is AFFIRMED. DATED: November 22, 2011 5 Copies to: Allan T. Fenley, Esq. VA General Counsel (027) 6

Meditation in Treating PTSD, Depression, TBI, and iPhone App

A couple of interesting research studies from Harvard look at factor affecting happiness and the effect of meditation. Since these have an applicability to PTSD, Depression, Anxiety, and TBI I am linking to the studies and the Track Your Happiness iPhone app. If you or someone you know suffers from Depression, PTSD, TBI, or Anxiety I hope that you will urge them to read these studies and consider using meditation as part of their treatment protocol. Study: Meditators Shut Down Daydreaming Part Of Brain Judson Brewer, an assistant professor of psychiatry Wandering mind not a happy mind Harvard psychologists Matthew A. Killingsworth and Daniel T. Gilbert

McNair v. Shinseki, No. 09-1813 (Argued May 25, 2011 Decided November 18, 2011); Generic Consent Form, Presumption of Regularity

Excerpt from decision below: "For the reasons stated below, we hold 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. We further hold that a failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. Because additional findings of fact are necessary to apply these holdings, the Board's decision will be set aside and the matters remanded for further adjudication." ============================ "A VA doctor is a public official and completion of an informed consent form is required by VA regulation before certain treatment may be provided to a patient. However, it is the content of the advice and information provided to the patient in the face of a signed generic consent form that is contested here. As a matter of logic, such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not the "the product of a consistent, reliable procedure," which is the "root" of the presumption of regularity in our caselaw. Posey v. Shinseki, 23 Vet.App. 406, 410 (2010). It is precisely the diversity of patients, procedures, and circumstances that counsels against recognizing a 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." ============================ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-1813 ANDREA M. MCNAIR, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued May 25, 2011 Decided November 18, 2011) Ronald L. Smith, with whom Virginia L. Carron and Troy E. Grabow were on the brief, all of Washington, D.C., for the appellant. Kristen D. King-Holland, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee. Before KASOLD, Chief Judge, and HAGEL and MOORMAN, Judges. KASOLD, Chief Judge: Veteran Andrea M. McNair appeals through counsel that part of a January 22, 2009, decision of the Board of Veterans' Appeals (Board) that denied disability compensation for neuralgia of the 1 breast or focal nerve damage (hereinafter "neuralgia") as a result of surgery she underwent at a VA facility in June 1998. On appeal, Ms. McNair argues, inter alia, that the Board erred when it found that she was advised adequately of the potential adverse effects of her surgery and therefore that her consent to the surgery was informed. Ms. McNair seeks reversal of the Board's decision. The Secretary disputes Ms. McNair's contentions. The case was referred to a panel of the Court to address the evidentiary effect of a signed generic consent form when the patient signing the form asserts that she was not informed of a foreseeable risk of surgery. For the reasons stated below, we hold 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 1 "Neuralgia" is pain extending along the course of one or more nerves. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1281 (31st ed. 2007) [hereinafter "DORLAND'S"]. risks involved with any particular treatment. We further hold that a failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. Because additional findings of fact are necessary to apply these holdings, the Board's decision will be set aside and the matters remanded for further adjudication. I. FACTS Ms. McNair served on active duty in the U.S. Army from August 1993 to May 1995. Prior to her service – in August 1989 – Ms. McNair underwent breast reduction surgery. She did not report any complications as a result of that procedure. On June 2, 1998, she underwent bilateral reduction mammoplasty at a VA hospital.2 Ms. McNair and her doctor signed an authorization for medical procedures form that reflects that she was advised as to the nature of the surgery, attendant risks involved, and expected results, but the form is general in nature and does not state the specific attendant risks that were discussed. Record (R.) at 448. In addition, a contemporaneously entered treatment note states that this was Ms. McNair's second breast-reduction surgery, which was required after Ms. McNair developed macromastia3 subsequent to her original surgery, with symptoms including neck, back, and shoulder pain, significant "bra strapping," and decreased physical activity due to the size and positions of the breasts. R. at 442. Another treatment note detailed the surgeon's conversation with Ms. McNair regarding the risks and tradeoffs of the surgery: The nature of the operation including the tradeoff b/t scar or [illegible] of excess skin, adipose and glandular tissue were discussed in great detail including the potential complications of infection, hematoma, partial or complete NAC [nipple-areolar complex] graft loss as well as irregular pigmentation during the healing [illegible]. The pt acknowledged the above and instruct[ed] to proceed. R. at 452. In November 1998, Ms. McNair filed a claim under 38 U.S.C. § 1151 for continual neuralgia resulting from breast reduction surgery. In a March 1999 rating decision, a VA regional office found 2 A "mammoplasty" (or "mammaplasty") reduction is the plastic reconstruction of the breast to reduce size. DORLAND'S at 1116. 3 "Macromastia" is oversize of the breasts. DORLAND'S at 1108. 2 that Ms. McNair was not entitled to such benefits because "[b]oth the private and VA examiner indicate that such pain from nerve regeneration after the elective surgery is an expected consequence of such surgery." R. at 435. Ms. McNair appealed that decision, stating that she did not experience pain after her first surgery and reiterating that she was not informed of the chance of this type of pain occurring. Since then, this matter has been the subject of several Board decisions, a joint motion for remand granted by this Court, and numerous VA medical examinations. Ms. McNair has contended throughout this time that she was not informed of the risk of neuralgia prior to her June 1998 surgery. In the decision on appeal, the Board found that Ms. McNair suffers from an additional disability due to neuralgia that was incurred as a result of the June 1998 surgery. The Board further found that neuralgia was a foreseeable risk of surgery but that Ms. McNair was not entitled to disability compensation because (1) there was no evidence of negligence or similar instance of fault on the part of VA in furnishing surgical treatment, and (2) Ms. McNair provided informed consent for treatment. Regarding the informed consent finding, the Board found that there was substantial compliance with 38 C.F.R. § 17.32, the regulation governing the provision and documentation of consent to medical procedures such as surgery. The Board further found that (1) there is no VA regulatory requirement that every foreseeable risk be documented in the record, (2) to the extent the record does not document that neuralgic scar pain was a possible risk, this omission was a minor deviation from the requirements of § 17.32 that was immaterial under the circumstances of this case, and (3) "in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." R. at 13. This appeal followed. II. ARGUMENTS Ms. McNair argues that none of the evidence in the record establishes that the specific risk of neuralgia was disclosed to her and that the only affirmative evidence of record on that point consists of her lay statements that she was not so informed – statements that she asserts were not weighed by the Board. She further argues that there is no support for the Board's finding that any failure to document neuralgia in the record was a minor and immaterial deviation under 38 C.F.R. 3 § 3.361(d)(1)(ii). When questioned at oral argument, Ms. McNair clarified her position, and asserted that the regulation's reference to "minor" and "immaterial" deviations includes only minor mistakes in documenting the consent, such as ascribing the wrong date to an otherwise properly executed consent form. She also argued that this case is distinguishable from Halcomb v. Shinseki, 23 Vet.App. 234 (2009), because in that case the veteran did not provide any supporting evidence, "even [considering] his own lay statements," whereas here Ms. McNair consistently has stated that she was not advised that she might suffer from neuralgia as a result of her surgery. The Secretary argues that the Board's findings of fact are not clearly erroneous because Ms. McNair signed a consent form in which she attested that she understood the nature of the proposed procedure, attendant risks involved, and the expected results. Because the form is congruent with VA regulatory and internal procedures, the Secretary cites to our decision in Halcomb and argues that it cannot be presumed that the risk of neuralgia was not discussed simply because it was not specifically recorded. As to Ms. McNair's contrary lay statements, the Secretary argues that the Board sufficiently addressed them when the Board found that the health care providers substantially complied with 38 C.F.R. § 17.32 and also that minor deviations from the requirements of § 17.32 that are immaterial will not defeat a finding of informed consent. In response to questioning at oral argument, the Secretary asserted that minor and immaterial deviations under § 3.361(d)(1)(ii) include a failure to disclose a risk that, had it been known to a reasonable person in Ms. McNair's circumstances, would not have deterred a reasonable person from undergoing surgery. Additionally, in response to questioning, the Secretary argued that the presumption of regularity applied to the facts of this case and Ms. McNair's statements alone were insufficient to rebut it. III. DISCUSSION The law authorizes VA compensation for disabilities arising from, inter alia, negligently provided VA medical or surgical treatment. 38 U.S.C. § 1151. The implementing VA regulation provides that negligence is established when the VA-provided treatment is the proximate cause of a disability and, inter alia, the treatment was provided without informed consent. 38 C.F.R. 4 § 3.361(c)(1), (d)(1)(ii) (2011);4 see also Halcomb, 23 Vet.App. at 237-38 (explaining the regulatory framework in detail). To be informed, consent must be given freely after careful explanation of the course of the treatment to be provided, including, inter alia, the reasonably foreseeable risks associated with the treatment.5 38 C.F.R. §§ 17.32(c) (2011),6 3.361(c)(1), (d)(1)(ii) (referring to 4 38 C.F.R. § 3.361 states: (c) Establishing the cause of additional disability or death. Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) . . . of this section . . . . (1) Actual causation required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. . . . . (d) Establishing the proximate cause of additional disability or death. The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. (1) Care, treatment or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (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. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirement of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 5 The VA regulation is consistent with the generally accepted rule that a physician must provide the patient with enough information to enable the patient's informed choice whether to undergo treatment, Canterbury v. Spence, 464 F.2d 772, 786 (D.C. Cir. 1972) (adopting the patient-perspective duty), which, in turn, is premised on the principle that a person "has a right to determine what shall be done with his own body," Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92 (N.Y. 1914) (Cardozo, J.). 6 38 C.F.R. § 17.32(c) states: General requirements for informed consent. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic 5 § 17.32). Additionally, 38 C.F.R. § 17.32(d) provides that "[t]he informed consent process must be appropriately documented in the health record." The Secretary determined that a signed, generic consent form satisfies this documentation requirement, and this determination was upheld in Halcomb, supra. Specifically left unaddressed in Halcomb, however, is the evidentiary effect of such a generic consent form when the scope of the advice provided to a patient-turned-claimant is contested by the claimant. 23 Vet.App. at 239-41 (rejecting the argument that use of the generic consent form established negligence per se because it did not list the foreseeable risks attendant with the treatment, and noting that the appellant had not presented any evidence – not even his own statement – that consent was not informed). A. Presumption of Regularity There is a presumption that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). The presumption applies with equal force whether its application favors the Government or the individual seeking disability compensation from the Government. Woods v. Gober, 14 Vet.App. 214, 218 (2000); cf. United States v. Chem. Found. Inc., 272 U.S. 1 (1926) (rejecting the Government's claim that sales of intellectual property were induced fraudulently because United States officers were presumed to be aware of the facts when the transactions were made absent clear evidence to the contrary). Whether the presumption of regularity attaches to the public actions of a public official is a question of law that the Court reviews de novo. Marsh, 19 Vet.App. at 386. Although Ms. McNair contended at oral argument that the presumption of regularity applies only to ministerial acts, the presumption is not so limited. Rizzo, 580 F.3d at 1292 (noting that 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 or surrogate the nature of a 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 or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 6 "nothing in this court's precedent limits the presumption [of regularity] to procedural matters" and further stating that the doctrine "'allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary'" (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed Cir. 2001))); see also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (applying presumption of regularity to medical examiners' overall competence, including ability to understand instructions); Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) (applying presumption to the "known course of business" of the U.S. Postal Service). Even though Ms. McNair's contention that the presumption of regularity only applies to ministerial acts is not the law, we do not agree with the Secretary that the presumption broadly applies to the scope of the advice and information given by a doctor to his patient. The issue before the Court is not resolved simply because the Board may presume the competence of VA medical professionals in general, or their ability to understand instructions, as were the circumstances, respectively, in Rizzo and Sickles, both supra. A VA doctor is a public official and completion of an informed consent form is required by VA regulation before certain treatment may be provided to a patient. However, it is the content of the advice and information provided to the patient in the face of a signed generic consent form that is contested here. As a matter of logic, such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not the "the product of a consistent, reliable procedure," which is the "root" of the presumption of regularity in our caselaw. Posey v. Shinseki, 23 Vet.App. 406, 410 (2010). It is precisely the diversity of patients, procedures, and circumstances that counsels against recognizing a 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. When there is a dispute concerning what information a doctor provided to his patient, a factual issue is raised whether a generic consent form indicating the patient was advised of the risks of surgery is more probative than the claimant's statements that a specific risk of the surgery was not discussed. See Salis v. United States, 522 F. Supp. 989, 1000 (M.D. Pa. 1981) (noting that when there is a general consent form and contrary lay assertions, the issue becomes one of credibility for the trier of fact). Because such a finding has its basis in fact, it is a determination to be made by the Board in the first instance, based on all of the evidence in the record. Roberts v. Shinseki, 7 23 Vet.App. 416, 423 (2010) (Board has duty to weigh and analyze all the evidence of record (citing Burger v. Brown, 5 Vet.App. 340, 342 (1993))). Here, contrary to Ms. McNair's contention, her statements are not the only evidence on the issue of informed consent. As with any relevant medical record, the signed consent form and treatment note are to be weighed by the Board, along with any other evidence in the record relevant to the issue.7 Savage v. Shinseki, 24 Vet.App. 259, 272 (2011) (noting that private medical record had to be weighed against other evidence in record); Roberts, supra. Moreover, to the extent Ms. McNair contends that witness testimony necessarily carries greater weight than documents, she is mistaken. E.g., United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948) (giving little weight to testimony in conflict with contemporaneous documents). Nonetheless, this does not relieve the Board of its duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (Board has duty to weigh and determine credibility of all evidence, and explain its findings in statement of reasons or bases). Here, the Board essentially found that the preponderance of the evidence was against Ms. McNair's assertion that she was not informed that she might suffer from neuralgia as a result of the surgery, but the Board's statement of reasons or bases in support of its determination is inadequate. Its only stated basis for this finding is the bald statement that "based upon the evidence in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." No rationale is provided for concluding what a reasonable person could assume, frustrating judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). Although remand generally is warranted because our review of the Board's findings is frustrated, see Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its 7 By referencing the consent form and the treatment note, we do not imply that there is no other evidence in the record pertaining to this issue. 8 determinations, or where the record is otherwise inadequate"), in this instance we must also address whether the failure to provide notice that neuralgia was a risk associated with surgery can constitute a minor deviation that does not defeat a finding that consent was informed. This is required because if such failure can be deemed minor, and if the Board properly found that it was, Ms. McNair's basis for claiming that her consent was not informed would fail, and remand would not be warranted. 38 U.S.C. § 7261(b)(2) (Court must consider rule of prejudicial error); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (same); cf. Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (under the prejudicial error rule, remand is unnecessary "where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision"). B. Minor Deviations Immaterial Under the Circumstances of a Case The Board decision on appeal states that any failure to document neuralgia was a minor deviation that was immaterial under the circumstances of this case. However, the Board failed to provide a rationale for this determination or explain why not mentioning neuralgia would constitute such a minor deviation. In response to questioning at oral argument, the Secretary stated that he viewed 38 C.F.R. § 3.361(d)(1)(ii) to mean the failure to advise a patient about a reasonably foreseeable consequence of treatment is a minor, nonmaterial deviation if a reasonable person under the circumstances would have consented to the treatment anyway. When the Secretary offers an interpretation of his own regulation for the first time in litigation, that interpretation generally is entitled to deference "'as long as there is no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment.'" Singleton v. Shinseki, 23 Vet.App. 376, 379 (2010) (quoting Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)) (internal quotation marks omitted); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ("Deference to what appears to be nothing more than an agency's convenient litigating position would be entirely inappropriate."); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (noting that, generally, an "agency's construction of its own regulations is of controlling weight unless it is plainly erroneous or inconsistent with the regulation"). Here, a fair reading of the regulation and the Secretary's stated understanding of the regulation when promulgated, 69 Fed. Reg. 46,426, 46,429 (Aug. 3, 2004) ("[T]he provisions of 9 § 3.361(d)(1) are intended merely to restate, more simply and clearly, the [common law] standards governing determinations of negligence."), support the Secretary's interpretation presented during oral argument and, for the reasons stated below, we find this interpretation to be a reasonable application of the statute. 38 U.S.C. § 7261(a)(1) (questions of law are reviewed de novo); Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation is a question of law . . . ."); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."); Forshey v. Principi, 284 F.3d 1335, 1356 (Fed. Cir. 2002) ("[W]e may decide to apply the correct law even if the parties do not argue it, if an issue is properly before this court."). The text of § 3.361(d)(1)(ii) and its placement in the overall regulatory scheme demonstrate that the term "minor deviations" includes substantive as well as technical or procedural errors. See Buczynski v. Shinseki, 24 Vet.App. 221, 227 (2009) (noting that regulatory interpretation focuses on the regulatory text as well as the overall structure of the regulatory provisions). The regulation states that a finding of informed consent will not be defeated by a minor deviation that is "immaterial under the circumstances of a case." 38 C.F.R. § 3.361(d)(1)(ii). With regard to substantial compliance and minor deviations, § 3.361(d)(1)(ii) refers twice to § 17.32 as a whole, which contains both procedural and substantive requirements. Compare 38 C.F.R. § 17.32(d) ("Documentation of informed consent."), with 38 C.F.R. § 17.32(c) ("General requirements for informed consent."). The cross reference to both procedural and substantive requirements supports the conclusion that even a failure to comply with a substantive requirement could, under some circumstances, constitute a minor, immaterial deviation. See Buczynski, supra (noting that specific limitations of regulatory provisions generally are noted if intended). This interpretation also is consistent with common law principles that form the basis of § 3.361(d)(1), as stated by the Secretary when he promulgated this regulation. See 69 Fed. Reg. at 46,429. Pertinent hereto, common law generally holds that "the test for determining whether a particular peril must be divulged is its materiality to the patient's decision." Canterbury, 464 F.2d 10 at 791; see also Canesi v. Wilson, 730 A.2d 805, 812 (N.J. 1999); Getchell v. Mansfield, 489 P.2d 953, 955-56 (Or. 1971). The majority of jurisdictions also determine "materiality" based upon an objective standard that, at least in part, asks whether the potentially undisclosed risk is of the type that if known by a reasonable person under similar circumstances would cause that person not to have undergone treatment. See, 8 e.g., Bernard v. Char, 903 P.2d 667 (Haw. 1995); Canterbury, 464 F.2d at 786-87; K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995); Schreiber v. Physicians Ins. Co. of Wis., 588 N.W.2d 26, 33 (Wis. 1999); Sherwood, 805 P.2d at 465 ("Applying the objective test is fair to the patient because it requires consideration by the factfinder of what a reasonable person with all of the characteristics of the plaintiff would have done under the same circumstances . . . and is likewise fair to the physician-defendant because the physician is not placed in jeopardy of the patient's hindsight."). To answer this question, 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. See Smith v. Cotter, 810 P.2d 1204, 1209 (Nev. 1991) (determining that the plaintiff's thyroid problem was a minor irritant when compared to the risk of permanent vocal cord paralysis). In sum, given the regulatory text and structure as well as the history of the promulgation of § 3.361(d)(1)(ii) and the general common law understanding of informed consent, we agree with the Secretary's interpretation 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. Of course, such an assessment is a factual one for the Board to make in the first instance. Roberts, 23 Vet.App. at 423. 8 The minority of jurisdictions use a subjective standard to determine materiality, under which a patient must show that she herself (as opposed to a reasonable person in her position) would not have consented to the treatment had she been adequately informed. Sherwood v. Carter, 805 P.2d 452, 465 (Idaho 1991). There is no reason to believe that the Secretary intended to apply this position, see e.g., 69 Fed. Reg. at 46,429, and the Court declines to adopt it, given the inherent difficulties it imposes on the finder-of-fact, as well as the possibility that a patient who dies as a result of a medical procedure will be foreclosed from any recovery because she cannot testify as to what her subjective belief was at the time of the procedure. See Fain v. Smith, 479 So.2d 1150 (Ala. 1985) (noting the inherent difficulties). 11 Here, the Board provided no discussion as to whether a reasonable person in Ms. McNair's situation would have proceeded with the surgery even if advised of the risk that she could suffer from neuralgia as a result of that surgery. Moreover, the Board did not discuss, and the record does not reflect, the consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery. In the absence of such determination and a properly developed record, or other explanation supporting the Board's bald conclusion, judicial review of this issue is frustrated. 38 U.S.C. § 7104(d)(1) (requiring a statement of reasons or bases in support of the Board's findings and conclusions on all material issues presented on the record); Allday, supra. C. Remand Remand is warranted for the Board to address, in the first instance, and to develop, as needed, facts 9 related to the scope of information provided to Ms. McNair regarding the foreseeable risks of her treatment, the foreseeable consequences of failing to undergo treatment, and whether a reasonable person would have proceeded with the surgery even if advised of the risk of neuralgia pursuant to § 3.361(d)(1)(ii). Tucker, supra; Webster v. Derwinski, 1 Vet.App. 155, 159 (1991)(Court is not to conduct de novo factfinding but rather to remand the case for the Board to find facts in the first instance, subject to later review by Court). On remand, Ms. McNair may present, and the Board must consider, any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. IV. CONCLUSION Upon consideration of the foregoing, the Board's January 22, 2009, decision is SET ASIDE and the matter REMANDED for adjudication consistent with this decision. 9 Of note, the record reflects that Ms. McNair's representative requested that the Secretary obtain further information from the VA hospital regarding her informed consent but the Board found that any such effort would be futile because the evidence already was sufficient for an adequate determination. 12 13