Veteranclaims’s Blog

February 7, 2014

Single Judge Application; Schertz v. Shinseki, __ Vet.App. __, 2013 WL 5366957 (Sept. 26, 2013); Negligence; Degree of Care

Excerpts from decision below:

“Negligence is established when VA”failed to exercise the degree of care that would be expected of a reasonable health care provider.” 38 C.F.R. § 3.361(d)(1)(i), (ii) (2013); see Schertz v. Shinseki, __ Vet.App. __, 2013 WL 5366957 (Sept. 26, 2013).
As to an event not reasonably foreseeable, VA will “consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed” when obtaining  informed consent. 38 C.F.R. § 3.361(d)(2); see Schertz, __ Vet.App. at __ (describing the “reasonable health care provider test”). This is an objective standard that does not consider whether the health care provider in question actually foresaw or disclosed the risk to the veteran. Id.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-2776
ROBERT S. MELVIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Self-represented veteran Robert S. Melvin appeals an
August 24, 2012,
Board of Veterans’ Appeals (Board) decision that denied compensation under
38 U.S.C. § 1151 for
erectile dysfunction. Record (R.) at 3-14. 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
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that
follow, the Court will set aside
the August 24, 2012, decision and remand the matter for further
proceedings consistent with this
decision.
I. FACTS
Mr. Melvin served on active duty with the U.S. Air Force from June 1971 to
July 1972. R.
at 408. In 1992, he began receiving VA treatment for erectile dysfunction
and impotence (R. at
843-44) and in January 1993 he was diagnosed with erectile dysfunction (R.
at 847, 849, 851, 852).
He was initially treated with injections (R. at 843, 866, 1317, 1345) and
in May 1993 he underwent
a penile venous excision and ligation (R. at 854).
In February 1994, Mr. Melvin elected to have a prosthesis implanted. R. at
866. A March
25, 1994, postsurgery discharge note described Mr. Melvin’s presurgery
history as follows: “[He]

had been on injections for the past two years, status post dorsal vein
ligation . . . . He said that he
[had] long but not rigid erections. He did not wish to have the injections
anymore and vacu[um]
suction device was discussed. He desired penile prosthesis.” R. at 837.
The March 20, 1994, surgery consent form indicated:
[T]he nature and purpose of the operation or procedure, possible
alternative methods
of treatment, the risks involved, and the possibility of complications
have been fully
explained to me. I acknowledge that no guarantees have been made to me
considering the results of the operation or procedure.
R. at 47. Following this text were the handwritten words: “Risk of
infection/bleeding/malfunction
discussed.” Id. The form did not indicate the name of the doctor
performing the surgery but did
include the signatures of Mr. Melvin, a witness, and a physician who
attested he had counseled Mr.
Melvin about the risks of the surgery. Id.
Following implant surgery, Mr. Melvin was discharged on March 25, 1994, at
which time
there was “no sign of infection” and his condition was described as “[v]
ery good.” R. at 837. During
an April 5, 1994, followup visit, the examining physician reported “wound
OK” and noted that there
was no sign of infection. R. at 865. On April 29, 1994, Mr. Melvin’s wound
was described as “well
healed” and he was told to follow up in two weeks. R. at 871.
A May 17, 1994, urology note indicates that the implant had become
infected and noted:
“O[perating] R[oom] for removal in AM.” R. at 874. A May 18, 1994,
progress note indicated that
Mr. Melvin denied questions concerning surgery (R. at 877) and a consent
form of the same date
noted that the procedure was performed by or under the direction of a Dr.
Pomerantz (R. at 46). The
form contains the illegible signature of a person who attested that he or
she had counseled Mr.
Melvin as to the nature of the proposed procedure, the attendant risks
involved, and the expected
results. Id. The form also contained Mr. Melvin’s signature, attesting
that he understood the issues
that had been explained to him. Id. According to the operation report, Mr.
Melvin tolerated implant
removal well and was taken to the recovery room in stable condition. R. at
838-39. Inpatient records
do not reflect any postoperative complications (R. at 875-884) and Mr.
Melvin was discharged in
June 1994 (R. at 840).
Subsequent medical records reveal that Mr. Melvin experienced numbness and
pain after the
implant removal surgery. R. at 875 (September 1994 urology medical record
noting “p[atien]t
complaints of numbness in the penis, tingling in the glans”), 1088 (
February 1999 report that pain
2

and numbness started in July 1994). In October 1996, Mr. Melvin was
evaluated by Dr. Goldstein,
a private urologist, who conducted sensory testing and reported that since
the 1994 implant removal
Mr. Melvin experienced nerve damage, continued pain in the penis and
scrotum, and appeared to
suffer from significant penile neuropathy. R. at 711-12. Dr. Goldstein
noted that a private
psychologist reported that Mr. Melvin’s erectile dysfunction had had great
impact on his life. R. at
712. Further neurologic testing in February 1997 confirmed that Mr. Melvin
experienced penile
neuropathy and “a burning tearing pain in the left side of his penis.” R.
at 724. In August 1997, Dr.
Goldstein noted Mr. Melvin’s report that he was in constant pain 24 hours
a day and was
experiencing additional testicle soreness, which the urologist suspected
might be epididymitis.1
R.
at 727. Dr. Goldstein noted Mr. Melvin’s report that ever since the
implant removal surgery he has
had problems with nerve damage and pain. R. at 728. In March 1998, Dr.
Goldstein reported that
Mr. Melvin was receiving some benefit from pain medication but had no
erections, had severe pain
in the scrotum and penis, and was considering nerve block treatment. R. at
730.
In February 1999, Mr. Melvin wrote that before the March 1994 implant
surgery was
performed he did not read any of the consent papers but just signed them.
R. at 1085. He stated:
“For one[,] I trusted the doctor and secondly[,] if I didn’t sign them
they would not admit me and
there would be no surgery[,] so what’s the point?” Id. Mr. Melvin stated
that after the implant
surgery his doctor visited him in the recovery area and “this was the
first time I had seen him since
the day I selected the prosthesis. Up until this point no one had ever
verbally [sic] advised me of
any risk.” Id. Mr. Melvin also stated that during his hospital recovery,
he “felt a pop” and noticed
a small gap where a stitch in the incision in his scrotum had broken, and
that he was told it would
heal without complication and was instructed how to clean the area and
change the dressing. R. at
1085. Regarding the May 1994 implant removal surgery Mr. Melvin stated: “I
got to Admitting and
signed papers that I did not read for[,] again[,] what’s the point?” R. at
1087.
In November 2004, Mr. Melvin filed with VA a claim for additional
disability resulting from
his March and May 1994 surgeries. R. at 1074-97. In September 2005, VA
denied the claim (R. at
“Epididymitis” is inflammation of the “cordlike structure . . . whose
elongated coiled duct provides
for the storage, transit, and maturation of spermatozoa.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY
632 (32d ed. 2012).
1
3

968-77) and Mr. Melvin filed a timely Notice of Disagreement (NOD) and
appealed to the Board
(R. at 902-03, 908-26, 939-42).
At an April 2007 Board hearing, Mr. Melvin was asked about the March 1994
implant
surgery: “Did they tell you what could happen, good and bad? I mean, if
you have the surgery, you
could get this, but it’s also a possibility that it may not work?” R. at
691-92. Mr. Melvin responded
that he “wasn’t informed of any of those” and that he didn’t find out
until 1997 that once the implant
was removed, he was no longer a candidate for another implant. R. at 692.
The Board member
asked what he was told before the May 1994 implant removal surgery and Mr.
Melvin replied: “I
was just told that it had to be removed because it was infected.” R. at
693. He testified that since
the May 1994 implant removal surgery he suffered from nerve damage, pain,
total impotence, and
“[n]o sex life whatsoever.” R. at 695-96. He also stated that he has been
told by private specialists
that there is no longer any treatment available for his symptoms. R. at
698. In January 2008, the
Board remanded Mr. Melvin’s claim for additional development, to include
the following: (1)
Obtaining relevant VA medical records, (2) making a determination
concerning whether the record
showed informed consent in compliance with 38 C.F.R. § 17.32, and (3)
scheduling a VA
examination to obtain an opinion concerning whether Mr. Melvin has
additional disability as a result
of carelessness or negligence due to VA treatment. R. at 686-88.
On remand, a January 2009 VA examiner opined that it was less likely than
not that Mr.
Melvin has additional disability as a result of carelessness, negligence,
lack of proper skill, error in
judgment, or similar instance of VA fault in furnishing hospital care,
medical or surgical treatment,
or examination in association with the March 1994 implant surgery and the
May 1994 implant
removal due to infection; nor due to an event not reasonably foreseeable.
R. at 509. She stated that
there was no evidence of breach of standards of care by the VA surgeon,
medical providers, or the
hospital, for placement or removal of the penile implant. R. at 509. Her
rationale consisted of the
following four sentences:
There is no evidence of breach of standards of care by the surgeon,
medical
providers, or the hospital for placement or removal of the penile implant.
Unfortunately, an infection occurred, which is a risk of any surgical
procedure. The
veteran had impotence prior to the implantation and was utilizing
injectable
papaverine. The veteran continued to experience impotence after removal of
the
penile implant.
4

Id.
In May 2009, VA continued the denial (R. at 493-505) and the Board also
denied the claim
(R. at 436-44). Mr. Melvin, proceeding pro se, appealed that decision to
this Court, arguing, among
other things, that the Board failed to obtain certain treatment records. R.
at 113. The Secretary
disagreed with Mr. Melvin but conceded that the Board did not ensure
compliance with the January
2008 remand because it failed to consider whether Mr. Melvin had provided
informed consent
before the surgeries. R. at 107. In March 2011, the Court vacated the
Board decision and remanded
the section 1151 claim, finding that the Board failed to address informed
consent. R. at 76. The
Court rejected Mr. Melvin’s duty-to-assist argument, finding that VA had
obtained all available
relevant records. R. at 76.
On remand, VA informed Mr. Melvin of various regulations implementing 38 U.
S.C. § 1151
and also obtained additional records. R. at 46-47, 48-50. On August 24,
2012, the Board issued the
decision on appeal, denying compensation for “erectile dysfunction” under
38 U.S.C. § 1151. R. at
3-14. The Board relied heavily on the January 2009 VA examiner’s report
and opinion and found
that any additional disability sustained followingthe 1994 surgeries did
not result fromcarelessness,
negligence, lack of proper skill, error in judgment, or some other
instance of fault on part of the VA,
nor as the result of an event that was not reasonably foreseeable. R. at 4-
5. The Board repeated the
January 2009 VA examiner’s assertion that “the [v]eteran had impotence
prior to the implantation
and continued to have impotence after removal of the penile implant.” R.
at 11.
The Board acknowledged Mr. Melvin’s assertion that he never provided
informed consent
before the surgeries because he did not read the consent forms before
signing them (R. at 32, 85),
and because he “never heard of, spoke to, met, [was] treated [by], or
talked to the physician whose
name is on the form” (R. at 13, 86). In response, the Board observed that
Mr. Melvin had signed
the consent forms, that he did not deny signing, and concluded that by
signing the forms Mr. Melvin
“was aware of any risks involved and he accepted them.” R. at 13. This
timely appeal followed.
II. ANALYSIS
The first requirement of a section 1151 claim is an “additional disability
.” 38 U.S.C.
§ 1151(a) (referring to “[c]ompensation under this chapter . . .for a
qualifying additional disability”).
To determine whether a veteran has an additional disability, VA must “
compare[] the veteran’s
5

condition immediately before the beginning of the hospital care, medical
or surgical treatment . . .
upon which the claim is based to the veteran’s condition after such care,
treatment, examination,
services, or program has stopped.” 38 C.F.R. § 3.361(b) (2013). A veteran
who meets the first
requirement and suffers additional disability resulting from VA care is
entitled to compensation in
the same manner as if such additional disability were service-connected if
the additional disability
was not the result of the veteran’s wilful misconduct and was proximately
caused by “carelessness,
negligence, lack of proper skill, error in judgment, or similar instance
of fault on the part of [VA]
in furnishing” that treatment, or “an event not reasonably foreseeable,”or
when VA furnished the
care or treatment without informed consent. 38 U.S.C. § 1151(a); Viegas v.
Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Negligence is established when VA”failed to exercise the degree of care that would be expected of a reasonable health care provider.” 38 C.F.R. § 3.361(d)(1)(i), (ii) (2013); see Schertz v. Shinseki, __ Vet.App. __, 2013 WL 5366957 (Sept. 26, 2013).
As to an event not reasonably foreseeable, VA will “consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed” when obtaining  informed consent. 38 C.F.R. § 3.361(d)(2); see Schertz, __ Vet.App. at __ (describing the “reasonable health care provider test”). This is an objective standard that does not consider whether the health care provider in question actually foresaw or disclosed the risk to the veteran. Id.
As with any finding on an issue of material fact and law presented on the
record, the Board
is required to support its finding as to service connection with a
statement of reasons or bases that
enables a claimant to understand the precise basis for the Board’s
decision and facilitates review in
this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49,
57 (1990). To comply with
this requirement, the Board must analyze the credibility and probative
value of the evidence, account
for evidence that it finds to be persuasive or unpersuasive, and provide
reasons for its rejection of
any material evidence favorable to the claimant. See Caluza v. Brown, 7
Vet.App. 498, 506 (1995).
A. Board’s Reliance on the January 2009 Medical Opinion
Mr.Melvin argues, among other things, that the Board failed to account for
medical evidence
documenting postsurgery neuropathy and severe constant pain. Appellant’s
Brief (Br.) at 13-19.
The Court construes these statements as an argument that the Board erred
in relying on the January
2009 medical examiner’s statement that Mr. Melvin had impotence prior to
the surgeries and
impotence after the surgeries, implying that Mr. Melvin does not have
additional disability. R. at
6

11-12 (citing R. at 509). Mr. Melvin also argues that the Board generally
erred in relying on the
January 2009 examiner’s opinion (Appellant’s Br. at 12) that found no
evidence of VA breach of
standards of care and explained that infection is a risk of any surgical
procedure. R. at 509. Mr.
Melvin argues that the January 2009 opinion “couldn’t have been more wrong
.” Appellant’s Br. at
12, 21.
The Board concluded, and the record before the Court demonstrates, that
before the March
1994 implant surgery Mr. Melvin suffered from erectile dysfunction. R. at
9, 691, 730, 837, 856.
The Board noted, and the record before the Court demonstrates, that after
the May 1994 implant
removal surgery Mr. Melvin was diagnosed with significant penile
neuropathy and that he
experiences penile numbness, tingling, and severe and constant pain. R. at
10 (Board decision ),
696-97 (April 2007 Board hearing noting veteran’s report of electronic
testing resulting in a
diagnosis of dorsal nerve damage), 711-12 (October 1996 private
urologist’s opinion reporting
biothesiometric tests indicating that Mr. Melvin has had nerve damage,
significant penile
neuropathy, and continued pain in the penis and scrotum following the May
1994 implant removal),
724 (February 1997 report of neurological testing finding that Mr. Melvin
had penile numbness and
pain, penile neuralgia, and “an absent dorsal penile potential which
indicated that he does have a
penile neuropathy”), 727 (August 1997 letter from private urologist noting
Mr. Melvin’s report that
he experienced “constant pain 24 hours per day”), 730 (March 1998 letter
from private urologist
noting that Mr. Melvin was discussing nerve block treatment with another
physician, to treat
ongoing severe pain in his penis and scrotum), 875 (September 1994 urology
medical record noting
“p[atien]t complaints of numbness in the penis, tingling in the glans”),
1088 (February 1999 report
that pain and numbness started in July 1994). Despite reciting some of the
above facts, the Board,
without explanation, relied on the January 2009 examiner’s opinion that “
there was no additional
disability resulting from the 1994 surgeries and that the [v]eteran was
impotent both before and after
the procedures.” R. at 12 (referring to R. at 509).
In the January 2009 opinion, the examiner concluded that it was less
likely than not that Mr.
Melvin has additional disability as a result of VA carelessness in
association with the March 1994
implant surgery and the May 1994 implant removal due to infection, or due
to an event not
reasonably foreseeable. R. at 509. The examiner provided three statements
as her rationale: (1)
There was no evidence of breach of standards of care by VA medical staff
in the placement or
7

removal of the implant; (2) infection is a risk of any surgical procedure;
and (3) Mr. Melvin had
impotence prior to implant surgery and continued to experience impotence
after implant removal.
Id.
There are several problems with the Board’s reliance on this opinion.
First, although the
examiner stated that she had reviewed the claims file, she did not once
mention that after the May
1994 implant removal surgery Mr. Melvin was diagnosed with severe
neuropathy and experienced
numbness, tingling, and constant pain. R. at 508-09. In fact, her
diagnosis at the time she provided
her opinion was simply “erectile dysfunction,” with no mention of nerve
damage or neuropathy. Id.
Therefore, her rationale that Mr. Melvin only had impotence both before
and after the surgeries,
without mentioning his neuropathy and pain, suggests that she may not have
based her opinion on
an accurate factual premise. R. at 509; see Ardison v. Brown, 6 Vet.App.
405, 407 (1994) (medical
opinion must be based on accurate factual premise). The January 2009
examiner’s failure to mention
Mr. Melvin’s postsurgery neuropathy and constant pain undermines her
ultimate opinion that it was
less likely than not that Mr. Melvin has additional disability either as a
result of VA carelessness or
an event not reasonably foreseeable because there is no evidence that she
took postsurgery
neuropathy into account when she formed her opinion. R. at 509. The
Board’s failure to address
the evidence of record showing that Mr. Melvin developed neuropathy after
the May 1994 implant
removal surgery, and its reliance on the 2009 medical opinion without
accounting for the veteran’s
neuropathy and constant pain, renders inadequate the Board’s reasons or
bases. 38 U.S.C.
§ 7104(d)(1); Gilbert, 1 Vet.App. at 57.
Second, the January 2009 examiner, apparently referring to the March 1994
implant surgery
because that is the only surgery that resulted in infection, opined that
infection was a reasonably
foreseeable result of any surgery. However, she did not address and the
Board did not discuss (1)
whether the neuropathy and associated symptoms as likely as not
constitutes an additional disability
undersection1151,(2)
whetherneuropathyandassociatedsymptomsofnumbnessandconstantpain
are as likely as not reasonably foreseeable consequences of penile implant
surgery or penile implant
removal surgery, and (3) whether neuropathy and associated symptoms are as
likely as not
consequences of the May 1994 implant removal surgery. R. at 509. The
Board’s failure to discuss
the above issues renders inadequate the reasons or bases for its decision.
38 U.S.C. § 7104(d)(1);
Gilbert, 1 Vet.App. at 57. Therefore, the Court concludes that it was a
violation of 38 U.S.C.
8

§ 7104(d)(1) for the Board to accept and rely on the January 2009
examiner’s opinion without
addressing the above issues. See Gilbert, 1 Vet.App. at 57.
B. Informed Consent
In January 2008 and March 2011, Mr. Melvin’s section 1151 claim was
remanded so VA
could consider informed consent. R. at 73-77, 683-89. “To determine
whether there was informed
consent, VA will consider whether the health care providers substantially
complied with the
requirements of [38 C.F.R.] § 17.32.” 38 C.F.R. § 3.361(d)(1)(ii).
Section 17.32 defines informed
consent as “the freely given consent that follows a careful explanation by
the practitioner to the
patient . . . of the proposed . . . course of 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.”
38 C.F.R. § 17.32(c) (2013). Although informed consent can be express (
either oral or written) or
implied, id., the provision of informed consent must always be “
appropriately documented in the
health record,” 38 C.F.R. § 17.32(d)(1). However, “[m]inor deviations
from the requirements of §
17.32 . . . that are immaterial under the circumstances of a case will not
defeat a finding of informed
consent.” 38 C.F.R. § 3.361(d)(1)(ii). In McNair, the Court held that “
the failure to advise a patient
of a foreseeable risk can be considered a minor, immaterial deviation
under the regulation if a
reasonable person in similar circumstances would have proceeded with the
medical treatment even
if informed of the foreseeable risk.” 25 Vet.App. at 107.
The Court reviews the Board’s determination that there was informed
consent under the
“clearly erroneous” standard set forth in 38 U.S.C. § 7261(a)(4). Look v.
Derwinski, 2 Vet.App.
157, 161-62 (1992). “A factual 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.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (
1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As with any finding
on a material issue of
fact and law presented on the record, the Board must support its informed-
consent determination
with an adequate statement of reasons or bases that enables the claimant
to understand the precise
basis for that determination and facilitates review in this Court. See 38
U.S.C. § 7104(d)(1); Gilbert,
1 Vet.App. at 52.
9

Mr. Melvin argues that VA did not obtain his informed consent to perform
the March and
May 1994 surgeries because, although he signed the forms, he did not read
them. Appellant’s Br.
at 8, 12; see R. at 32, 85, 1085, 1087. He also contends that he did not
provide informed consent
for the May 1994 implant removal surgery because he never saw, met, or
spoke to the doctor who
performed the May 18, 1994, surgery. Appellant’s Br. at 9. The Secretary
responds that the
evidence of record supports the Board’s finding that Mr. Melvin gave his
informed consent.
Secretary’s Br. at 7. The Secretary also argues that, even if Mr. Melvin
had not signed the consent
forms, consent may be implied in emergency situations, which he argues
applies here. Id. at 19-20
(citing 38 C.F.R. § 3.361(d)(1)(ii)). Finally, the Secretary notes that
Mr. Melvin’s signature appears
on the May 1994 implant removal surgery consent form, which includes the
name of one of the two
physicians who conducted the surgery. Secretary’s Br. at 16 (citing R. at
46, 838).
In the decision on appeal, the Board explained that, by signing the form,
Mr. Melvin
acknowledged that he was aware of any risks involved and he accepted them.
R. at 13. The Board
stated: “Unfortunately, acknowledging that one did not read a form is not
a valid defense.” Id. The
Board noted:
With regard to now claiming that he does not recall ever talking to or
meeting the
physician or sign[ing] the informed consent paperwork in May 1994, the
Board notes
that statements made to physicians for purposes of diagnosis and treatment
are
exceptionally trustworthy because the declarant has a strong motive to
tell the truth
in order to receive proper care. The Board notes that the [v]eteran has
not denied
signing his name to the form and it is not surprising that the [v]eteran
might not have
recall of the physician at the present time, a time many years removed
from the time
of the surgical procedure in 1994. The simple fact remains that the [v]
eteran’s name
is signed to the form. He has not denied that it is his signature. By
signing the form,
he acknowledged that he was aware of any risks involved and he accepted
them.
R. at 12-13. Based on this explanation and the evidence of record
referenced therein, the Court
concludes that the Board did not clearly err when it found that Mr. Melvin
had provided his
informed consent for both the March and May 1994 surgeries, nor did the
Board fail to provide
adequate reasons or bases for its findings and conclusions. See Look and
Gilbert, both supra.
Regarding the argument that the Board’s finding that the physician’s
signature on the May
1994 consent form is illegible and that this invalidates informed consent (
Appellant’s Br. at 6-7
(citing R. at 10)), the Court agrees with the Secretary that this finding
does not demonstrate error
on the part of the Board (Secretary’s Br. at 15). The Board found, based
on the presence of that
10

signature, that the physician who signed it had counseled Mr. Melvin as
to the nature of the implant
removal procedure, attendant risks involved, and expected results. Id. The
operation report shows
that two surgeons removed the implant (R. at 838) and Mr. Melvin has
agreed that the physician’s
signature on the form “looks like” the signature of one of these two
surgeons (R. at 86). Therefore,
the Court rejects Mr. Melvin’s argument regarding the illegible doctor’s
signature.
C. VA’s Duty to Obtain Medical Records
Mr. Melvin argues that VA failed to obtain treatment records from the
surgeon who
performed the March 1994 surgery and 1996 VA urology records. Appellant’s
Br. at 15-16. The
Secretary contends that this argument was previously addressed by the
March 2011 Court remand
and the Court should decline to address it. Secretary’s Br. at 20-21. VA
is required to “make
reasonable efforts to assist a claimant in obtaining evidence necessary to
substantiate the claimant’s
claim for benefits,” so long as the records are relevant, the claimant “
adequately identifies” those
records to the Secretary and authorizes the Secretary to obtain them. 38 U.
S.C. § 5103A(a), (b),
(c)(1); Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). In its March 2011
memorandum decision,
this Court noted that in response to a request for Phoenix VA medical
center (MC) urology records,
the supervisor of “Release of Information” notified Mr. Melvin in January
2007 that she “went
through all volumes of records at the Phoenix VA and could not locate any
Urology notes from
1996″ and suggested he contact the Togus VAMC. R. at 75. The Court further
noted that Mr.
Melvin’s Togus VAMC records were received by VA in March 2008. Id. The
Court concluded that
because VA obtained these medical records it adequately discharged the
duty to assist. R. at 75-76.
Because this issue was addressed in the March 2011 Court decision and
because Mr. Melvin has not
explained why the Board decision in this respect is clearly erroneous, the
Court will not entertain
this argument further. See Johnson v. Brown, 7 Vet.App. 25, 26-27 (1994) (“[
W]here a case is
addressed by an appellate court, remanded, then returned to the appellate
court,” law of the case
doctrine applies “to foreclose relitigation of a question once considered
and decided by an appellate
court where the same case is once again before it upon a subsequent appeal
.”).
III. CONCLUSION
Mr. Melvin is free on remand to present any additional arguments and
evidence to the Board
in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (
per curiam order). See
11

Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board
that “[a] remand is
meant to entail a critical examination of the justification for [the
Board’s] decision,” Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in
accordance with 38 U.S.C. § 7112. A final decision by the Board following
the remand herein
ordered will constitute a new decision that, if adverse, may be appealed
to this Court on the filing
of a new Notice of Appeal with the Court not later than 120 days after the
date on which notice of
the Board’s new final decision is mailed to the appellant. See Marsh v.
West, 11 Vet.App. 468, 472
(1998).
Upon consideration of the foregoing, the Board’s August 24, 2012, decision
is SET ASIDE
and the matter is REMANDED to the Board for further proceedings consistent
with this decision.
DATED: December 16, 2013
Copies to:
Robert S. Melvin
VA General Counsel (027)
12

 

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