Veteranclaims’s Blog

August 3, 2012

Single Judge Application McNair v. Shinseki, 25 Vet.App. 98 (2011); Informed Consent; 38 C.F.R. § 3.361(d)(1)(ii)

Excerpt from decision below:
“In response, the Secretary argues that the Board’s decision should be
vacated and the matter remanded to the Board because its statement of reasons or bases is inadequate. Specifically, the Secretary argues that the Board did not analyze whether the informed consent process was adequate under 38 C.F.R. § 3.361(d)(1)(ii). The Secretary also notes that the Board decision was issued approximately six months prior to the issuance of this Court’s decision in McNair, which held that the failure to advise a patient of a foreseeable risk does not defeat a finding of informed consent if a “reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” Id. at 107.
Upon review of the record, the Court is persuaded that remand to the Board
is necessary in this instance. On remand, the Board must expressly discuss, and provide an adequate statement of reasons or bases for its conclusions: (1) whether acquiring brachial neuritis due to an influenza vaccination was a reasonably foreseeable event; (2) whether Mr. Kelly gave informed consent; and (3) the application of McNair to its findings.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2387
ANTHONY J. KELLY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Anthony J. Kelly, appeals through counsel a
May 10,
2011,BoardofVeterans’Appeals (Board)
decisionthatdeniedentitlementtocompensation pursuant
to 38 U.S.C. § 1151 for additional left arm disability due to VA medical
treatment in October 1998.
Record (R.) at 3-18. Mr. Kelly and the Secretary each filed a brief. This
appeal is timely, and the
Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judge
may conduct this review.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Based on the
following analysis, the Court
will vacate the Board’s decision and remand this appeal for further
adjudication in light of this
Court’s holding in McNair v. Shinseki, 25 Vet.App. 98 (2011), and the
Secretary’s concessions
regarding the Board’s inadequate statement of reasons or bases.
In the decision here on appeal, the Board found that Mr. Kelly, who had
served on active duty
in the U.S. Marine Corps from August 1966 to August 1968, received an
influenza vaccination at
the VA medical center (VAMC) in San Francisco, California, in October 1998.
R. at 1145, 2. The
Board also found that Mr. Kelly acquired “left brachial neuritis” as a
result of that vaccination.1
R.
Brachial neuritis, also known as neuralgic amyotrophy, is defined as “pain
across the shoulder and upper arm,
withatrophyand paralysisof the musclesof the shoulder girdle.”
DORLAND’SILLUSTRATEDMEDICALDICTIONARY 1263,
70 (32d ed 2012).
1

at 4. Finally, the Board found that Mr. Kelly’s disabilitydid not result
from carelessness, negligence,
lack of proper skill, error in judgment, or similar incidence of fault on
the part of VA and “the result
was the ordinary risk of the treatment provided.” R. at 5; see R. at 16 (
finding that Mr. Kelly’s
brachial neuritis was a reasonably foreseeable event). Therefore, the
Board denied compensation under 38 U.S.C. § 1151.
Mr. Kelly present two arguments on appeal. First, he argues that VA failed
to obtain his informed consent to the vaccination because it did not disclose the risk of acquiring brachial neuritis.
Second, in the alternative, he argues that the risk of acquiring brachial
neuritis was not a reasonably foreseeable risk within the meaning of VA regulations and that he is entitled to compensation even if he gave informed consent. He seeks reversal of the Board’s decision.
In response, the Secretary argues that the Board’s decision should be
vacated and the matter remanded to the Board because its statement of reasons or bases is
inadequate. Specifically, the
Secretary argues that the Board did not analyze whether the informed
consent process was adequate
under 38 C.F.R. § 3.361(d)(1)(ii). The Secretary also notes that the
Board decision was issued
approximately six months prior to the issuance of this Court’s decision in
McNair, which held that the failure to advise a patient of a foreseeable risk does not defeat a finding of informed consent if
a”reasonable person in similar circumstances would have proceeded with
the medical treatment even
if informed of the foreseeable risk.” Id. at 107.
Upon review of the record, the Court is persuaded that remand to the Board
is necessary in
this instance. On remand, the Board must expressly discuss, and provide an
adequate statement of
reasons or bases for its conclusions: (1) whether acquiring brachial
neuritis due to an influenza vaccination was a reasonably foreseeable event; (2) whether Mr. Kelly gave informed consent; and (3) the application of McNair to its findings.

Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by Mr. Kelly. See Best v. Principi, 15 Vet.App. 18, 20 (2001
) (“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.”).
In pursuing the matter on remand, Mr. Kelly is free to submit additional
evidence and argument on
the remanded matters, and the Board is required to consider any such
relevant evidence and
2

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.
Upon consideration of the foregoing, the Board’s May 10, 2011, decision is
VACATED and
this matter is REMANDED to the Board for action consistent with this
decision.
DATED: July 26, 2012
Copies to:
Ronald L. Smith, Esq.
VA General Counsel (027)
3

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