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

Excerpt from decision below: "The Secretary attempts to distinguish McNair by pointing out that, in McNair, the Court stated that there is no presumption that a doctor "has fully informed a particular patient about a particular consequence of a particular medical procedure simply because a generic consent form has been filled out properly." 25 Vet.App. at 104; Secretary's Br. at 14-15. The Secretary argues that the consent form in this case was not generic, and therefore this case is subject to a presumption of regularity. However, the holding in McNair, quoted above, is based on the "unique characteristics of each patient and each medical procedure [and] is not the 'product of a consistent, reliable procedure,' which is the 'root' of the presumption of regularity." 25 Vet. App. at 104 (quoting Posey v. Shinseki, 23 Vet.App. 406, 410 (2010)). Thus, the distinction the Secretary attempts to make is not valid because McNair does not limit the inapplicability of the presumption of regularity: the uniqueness it speaks of is present in every medical procedure. The Board's application of the presumption of regularity in this case, therefore, is in error." =========================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 11-0670 BenoitBA_11-670.pdf Search Terms: MCNAIR CreationDate: 08/14/2012 15:38:59 Creator: PrintServer150 ModDate: 08/15/2012 11:10:44 Producer: Corel PDF Engine Version 15.0.0.505; modified using iText 2.1.7 by 1T3XT Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0670 BERNARD A. BENOIT, JR., APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Bernard A. Benoit, Jr., appeals through counsel a November 17, 2010, Board of Veterans' Appeals (Board) decision that denied him entitlement to compensation pursuant to 38 U.S.C. § 1151 for partial loss of his voice. Record of Proceedings (R.) at 3-13. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. The Court notes that the appellant filed a motion asking the Court to hold an oral argument on his appeal. Because oral argument will not "materially assist in the disposition of this appeal," the appellant's motion for oral argument is denied. Janssen v. Principi, 15 Vet.App. 370, 379 (2001). I. BACKGROUND The appellant served on active duty in the U.S. Army from December 1979 until November 1982. R. at 611. In October 2000, the appellant signed a "standard form" titled a "request for administration of anesthesia and for performance of operations and other procedures" consenting to a surgical procedure identified as an anterior cervical discectomy with possible fusion and plating. R. at 267-68. On the reverse side of the form is an entry titled "risks." R. at 268. Typed next to that entry are risks associated with the appellant's procedure: Bleeding, infection, anesthesia, need for further surgery, CSF leak, damage to nerves, spinal cord, hoarseness, no improvement, worsening in symptoms. Id. The appellant stated that on the day of his surgery, he was told that he "might be hoarse for a couple of days," but that he was not made aware that his hoarseness might become permanent and was not made aware that his vocal cords "were in jeopardy." R. at 249, 262, 315. The appellant stated that he was never warned that he might experience permanent paralysis of his vocal chords. R. at 260, 262. The record reveals that the appellant underwent the procedure, and that after his surgery he experienced "persistent hoarseness." R. at 270. He was diagnosed with right true vocal cord paralysis and received additional treatment. R. at 159, 274-77. According to the appellant his doctors told him that his "vocal cords were not on the same plane with each other any more due to damage from surgery." R. at 159. The appellant also stated that his vocal chord is both paralyzed and "moved out of line." R. at 251. In July 2001, the appellant filed a claim for compensation pursuant to 38 U.S.C. § 1151. R. at 599-610. In a May 2002 peer review, the reviewing physician noted that hoarseness that is "sometimes temporaryand sometimes permanent" is a risk of the appellant's cervical disc operation. R. at 329. The reviewer stated that he is "sure that the risks of [the appellant's] procedure were discussed with [him] as the risks are mentioned in the informed consent for the [n]eurosurgical procedure." Id. In August 2002, the regional office (RO) denied the appellant's claim. R. at 320-23. In February 2005, the Board denied the appellant's claim. R. at 240-45. In a June 2007 memorandum decision, the Court vacated the Board's decision and remanded the matter for further development. R. at 201-05. The Court determined that the informed consent form did not make it clear that "the appellant was informed that he was at risk of permanent hoarseness." R. at 204. The Court also determined that the May 2002 peer reviewer failed to discuss " whether paralysis was a condition that a reasonable health care provider would have considered to be an ordinary risk of the surgery." Id. In February 2008, the Board remanded the appellant's claim for additional development. R. at 167-74. 2 In a June 2008 VA medical examination report, Dr. Donald DePinto noted that the appellant has "complete paralysis of the right vocal cords" and diagnosed him with right vocal cord paralysis secondary to right recurrent laryngeal nerve injury during cervical disk removal and spinal fusion. R. at 148, 150. Dr. DePinto opined that the appellant's nerve injury is a " known complication" of his surgery, and that a reasonable provider "would have considered this a risk of the procedure and would have informed the patient that it is definitely a possibility that permanent injury to the recurrent laryngeal nerve would occur." R. at 150. Dr. DePinto further opined that the appellant's hoarseness is secondary to his nerve injury, and that there was "no negligence, malfeasance, or any malpractice committed" by VA personnel. Id. OnAugust28,2008,VAaskedDr.DePinto to submit anaddendumtohis opinionaddressing whetherthe risk of hoarsenessincludedontheconsentform may"reasonablybe construed to include a risk of permanent hoarseness?" R. at 127. An August 29, 2008, statement apparently submitted by Dr. DePinto, indicates that "hoarseness" on a consent form "could be construed to include a risk of permanent hoarseness."1 R. at 125. The physician also noted that it is "common practice" to tell a patient undergoing the procedure that was performed on the appellant that there is "significant risk of temporary hoarseness due to handling or compressing the nerve however in a small percentage of cases permanent injury to the nerve occurs resulting in permanent hoarseness." R. at 125-26. In January2009, the Board denied the appellant's claim. R. at 97-105. The parties submitted a joint motion to vacate the Board's decision and remand the matter for further proceedings in which the parties asserted that the Board failed to consider the appellant's lay statements. R. at 55-57. On April 29, 2010, the Court granted the parties' motion. R. at 48. The Board, in its November 17, 2010, decision here on appeal, denied the appellant entitlement to compensation pursuant to 38 U.S.C. § 1151 for partial loss of his voice. The Board found that there is no evidence of "any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA" in providing the appellant's surgery. R. at 10. Next, the Board determined that the "partial loss of voice" that the appellant now experiences This statement is hand written and some words, including the physician's name, are illegible. The lack of clarity affects this quotation. The word that the Court construes as "could" may also be "would." 3 1 "was not due to an event not reasonably foreseeable." R. at 11. Based on the May 2002 and June 2008 medical opinions, the Board found that "there is a presumption of competence and regularity that the surgeon performing the [appellant's] surgery informed him of the risk that resulted in his present condition." Id. The Board considered the appellant's testimony that, prior to his surgery, he was not told that he might experience permanent hoarseness, but found that, "in light of the record," the appellant's statements are not credible. R. at 12. The Board further noted that, other than the appellant's statements, "[e]verything else in the record . . . strongly suggests that there was no limitation placed on the informed consent relative to hoarseness or nerve damage." R. at 13. The Board also determined that the appellant is not credible "in part because of his economic interest" in the outcome of the case. Id. The appellant raises a number of arguments on appeal. First, the appellant asserts that his injury was not listed as a possible result of his surgery on the consent form given to him prior to his surgery and that he was not informed of the risk in language that he could understand. Appellant's Brief (Br.) at 6-10. Second, the appellant argues that the Board was incorrect in applying the presumption of regularity to determine that all of the risks of his surgery were explained to him. Id. at 10-14. Next, the appellant challenges the Board's finding that his lay statements are not credible. Id. at 14-18. Finally, the appellant argues that without giving him adequate prior notice the Board rejected his claim based on a different legal standard than that applied by the RO. Id. at 18-20. II. ANALYSIS Pursuant to 38 U.S.C. § 1151(a)(1)(A), (B), a claimant who suffered a disability resulting from medical or surgical treatment provided by a VA employee or in a VA facility is entitled to disability benefits for the resulting disability "in the same manner as if such additional disability . . . wereservice-connected"iftheproximatecauseofthedisabilitywaseither" carelessness,negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing . . . the medical or surgical treatment" or "an event not reasonably foreseeable." The Board found, and the appellant does not challenge, that the appellant's injury was not the result of an event not reasonably foreseeable. R. at 11. Pursuant to 38 C. F.R. § 3.361(d)(1)(i), (ii) 4 (2012), carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA medical or surgical treatment is established when an appellant's medical or surgical treatment caused his additional disability and VA either "failed to exercise the degree of care that would be expected of a reasonable health care provider"or furnished the medicalor surgical treatment without the appellant's informed consent. There is no dispute that the appellant's injury was caused by his surgical treatment, and the appellant does not argue that he was not afforded care expected of a reasonablehealth care provider. Thiscase,then, centersonwhethertheappellant's informedconsent was properly obtained prior to his surgery. Pursuant to 38 C.F.R. § 17.32(c) (2012), informed consent is the freelygiven consent that follows a careful explanation bythe practitioner to the patient . . . of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient . . . the nature of the proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient . . . must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. Inorderforinformedconsenttobeadequatelyobtained,apractitioner needonlysubstantially comply with these requirements, and "[m]inor deviations" from these requirements "that are immaterial under the circumstances of a case will not defeat a finding of informed consent." 38 C.F.R. § 3.361(d)(1)(ii). A. Presumption of Competence and Regularity The Board found that "there is a presumption of competence and regularity that the surgeon performing the [appellant's] surgery informed him of the risk that resulted in his present condition." R. at 9. The appellant argues that the Board's finding is erroneous. Appellant's Br. at 6-10; Reply Br. at 4-8. Generally,"[t]hereis apresumptionofregularityunderwhichit is presumedthatgovernment officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet.App. 307, 308- 09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 ( 1926)). After the Board reached its decision in this case, however, the Court issued a decision in McNairNext Hit v. Shinseki, 25 5 Vet.App. 98 (2011) addressing the presumption of regularity in the context of a doctor obtaining informed consent from a patient. The Court concluded that "the presumption of regularity does not apply to the scope of the information provided to a patient by a doctor with regard to the risks involved with any particular treatment." 25 Vet.App. at 100. The Secretary attempts to distinguish McNair by pointing out that, in McNair, the Court stated that there is no presumption that a doctor "has fully informed a particular patient about a particular consequence of a particular medical procedure simply because a generic consent form has been filled out properly." 25 Vet.App. at 104; Secretary's Br. at 14-15. The Secretary argues that the consent form in this case was not generic, and therefore this case is subject to a presumption of regularity. However, the holding in McNair, quoted above, is based on the "unique characteristics of each patient and each medical procedure [and] is not the 'product of a consistent, reliable procedure,' which is the 'root' of the presumption of regularity." 25 Vet. App. at 104 (quoting Posey v. Shinseki, 23 Vet.App. 406, 410 (2010)). Thus, the distinction the Secretary attempts to make is not valid because McNair does not limit the inapplicability of the presumption of regularity: the uniqueness it speaks of is present in every medical procedure. The Board's application of the presumption of regularity in this case, therefore, is in error. B. Reasons or Bases The Board's determination that the appellant received adequate informed consent is a factual determination that the Court reviews under the "clearly erroneous" standard of review. See Look v. Derwinski, 2 Vet.App. 157, 161-62 (1992) (reviewing the Board's factual findings regarding entitlement to compensation under 38 U.S.C. § 1151 by applying the " clearly erroneous" standard of review). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When deciding a matter, however, the Board must include in its decision a written statement of the reasons or bases for its findings andconclusions,adequateto enableanappellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 6 56-57(1990). Tocomplywith this requirement,theBoardmust analyze thecredibilityandprobative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57. The Board has committed a number of reasons-or-bases errors. First, the Court notes that in its June 2007 memorandum decision, it determined that "although it appears clear that hoarseness was an ordinary risk of [the appellant's] surgery, it is not clear from the informed consent form that the appellant was informed that he was at risk of permanent hoarseness." R. at 204. The Board, however, found that the "plain reading of the consent form is that there was no limitation placed on the identified risks of nerve damage and hoarseness as has been maintained by the [appellant]." R. at 12 (emphasis added). The Board did not discuss the Court's decision, and its statement appears contrary to the Court's determination. "Under the doctrine of 'law of the case,' questions settled on a former appeal of the same case are no longer open for review." Browder v. Brown, 5 Vet.App. 268, 270 (1993); see also Augustine v. Principi, 343 F.3d 1334, 1339 (Fed. Cir. 2003) ("Under the doctrine of law of the case, 'a court will generally refuse to reopen or reconsider what has already been decided at an earlier stage of the litigation.' . . . The doctrine 'operates to protect the settled expectations of the parties and promote orderly development of the case.'" ( quoting Suel v. Sec'y of Health & Human Servs., 192 F.3d 981, 985 (Fed. Cir. 1999))). Thus, the Board should have reconciled its conclusions with the Court's earlier decision. The Board concluded that the appellant's hoarseness and nerve injury were risks that "any reasonable provider would have disclosed." R. at 11. This conclusion is based in part on Dr. DePinto's statement that permanent hoarseness resulting from a paralyzed vocal cord caused by recurrent laryngeal nerveinjury, though appearing"in a small percentage of cases," "is a possibility," and that the appellant would have been warned of the potential for permanent injury. R. at 126, 150. As the appellant asserts (Appellant's Br. at 11-12, 15), the Board did not discuss whether the potential for this chain of events was explained to the appellant prior to his surgery in "language understandable" to him. 38 C.F.R. § 17.32(c). The Secretary answers the appellant's argument by demonstrating how the record reveals that the appellant's care providers substantially complied with the informed consent requirements. Secretary's Br. at 15-16. The Board offered no similar 7 discussion, and the Court will not accept the Secretary's reasoning in placeof a silent Board decision. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellant counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). The Court also agrees with the appellant's assertion that the Board should have discussed whether informed consent was adequatelyobtained even if the appellant was not told that his current diagnosis, a vocal cord paralysis, might result from his surgery, but instead was told that a nerve injury and hoarseness, the cause and symptomatology of his current disorder, could result. Appellant's Br. at 8-9. For these reasons, the Court finds that the Board's statement of reasons or bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. C. Appellant's Credibility When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the disability is of the type for which lay evidence is competent, the Board should next determine the credibility of the evidence, mindful that it "cannot determine that lay evidence lacks credibility merelybecauseit isunaccompaniedbycontemporaneousmedicalevidence"and that" competentlay evidence may be sufficient in and of itself" to support a finding of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). If the Board determines that lay evidence is competent and credible, then it must weigh the evidence against other evidence of record, providing an appropriate statement of reasons or bases for its conclusions. Id. The Board found that the appellant is competent to make lay statements reporting "things he heard and experienced." R. at 12. The Board, however, found that the appellant's testimony is not credible. R. at 12-13. The appellant argues that the Board did not support its conclusion with an adequate statement of reasons or bases. Appellant's Br. at 14-18. Lay evidence is not credible when there is evidence that it has been influenced by "possible bias, conflicting statements, etc." Buchanan, 451 F.3d 1336-37. For the majority of its statement of reasons or bases explaining its credibility determination, the Board makes no attempt to identify possible bias or demonstrate that the appellant has made conflicting statements. R. at 12-13. 8 Instead, it essentially states that because the other evidence is contrary to the appellant's statements, they are not credible. Id. The Court finds that the Board has clearly made a probative value determination about the appellant's lay statements, and found that because his statements are outweighed by other evidence in the record, they are not credible. That is not a proper reason to reject the credibility of the appellant's statements. See Buchanan, supra. Theonlyotherreason theBoardgaveforrejectingthecredibilityoftheappellant's statements is that he has an economic interest in the outcome of his case. R. at 13. In Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991), the Court determined that an appellant's interest in the outcome of a case may affect the credibility of his lay statements, but stated that VA " cannot ignore appellant's testimony simply because appellant is an interested party." The appellant asserts that the Board has simply ignored his testimony because of his economic interest in the outcome. Appellant's Br. at 16. The Secretary does not directly address either Cartright or the appellant's argument. The Board makes the blanket statement that he is not credible in part because of his economic interest without explaining further or demonstrating conflicts, bias, or other deficiencies in the credibility of the appellant's statements. Without a more thorough explanation for its reasoning, the Court cannot be certain that the Board has not violated the Cartright prohibition on ignoring an appellant's statements simply because of his interest in the outcome of the case. For these reasons, the Court finds that the Board's statement of reasons or bases supporting its credibility determination in this case is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. D. Remedy Throughout his brief and reply brief, the appellant asserts that the Board should reverse the Board's decision. This Court has held that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004). Remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 ( 1998). In this case, the Court has found that the Board incorrectly applied the presumption of regularity, and that it committed numerous reasons-or-bases errors. Therefore, remand is the appropriate remedy. 9 E. Other Arguments The Court will not, at this time, consider the appellant's other arguments, including his assertion that the Board erred by deciding his claim on a legal basis different than the RO's without providing him prior notice. See Best v. Principi, 15 Vet.App. 18, 20 (2001 ) (per curiam order) (holding that "[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him"). Onremand,theappellantis freeto submit additionalevidenceandargumentontheremanded matters, including evidence in support of the arguments that the Court now declines to consider, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the appellant's motion for oral argument is denied, the Board's November 17, 2010, decision is VACATED, and the matter is REMANDED for further proceedings consistent with this decision. DATED: August 14, 2012 Copies to: Louise A. Kroutil, Esq. VA General Counsel (027) 10