Veteranclaims’s Blog

May 15, 2014

Single Judge Application; Schertz v. Shinseki, 26 Vet.App. 362, 370 (2013); Informed Consent; Missing Consent forms

Excerpt from decision below:

“The Secretary is in error. The Board quoted this statement in the context of
evaluating whether the complications the veteran suffered were reasonably foreseeable. Reasonable foreseeability and informed consent are distinct avenues toward obtaining section 1151 compensation and entail different considerations. See, e.g., Schertz v. Shinseki, 26 Vet.App. 362, 370 (2013) (noting that a consent form should “reflect[ ] what would be disclosed by the ‘reasonable health care provider’ primarily responsible for the patient in a given case, which may vary depending on the patient’s physical condition, age, or other individual factors”); McNair, 25 Vet.App. at 104 (observing that the question of informed consent is predicated on “the unique characteristics of each patient and each
7

medical procedure”). In other words, one line in the Board’s reasonable foreseeability analysis does not adequately address the reasonably raised issue of whether Mr. Puckett’s consent was informed.
Moreover, the portion of Dr. Drumm’s opinion cited by the Secretary appears to address
whether the veteran was informed of “complications” that might result from the surgery. See R. at
91 (“[E]ach of those possible etiologies which could have caused the veteran’s upper extremity
paralysis were possible complications of the veteran’s surgery, and were made known to the veteran prior to his surgery . . . .” (emphasis added)). This statement does not address whether the veteran was informed of risks or side effects as required by § 17.32(c). See supra note 6 (establishing a distinction between risks, side effects, and complications). Thus, despite the Secretary’s arguments, whether Dr. Drumm adequately addressed the issue of informed consent is, as previously noted, a matter for the Board to make in the first instance. See Hensley, 212 F.3d at 1263; Owens, 7 Vet.App. at 433; see also Kahana v. Shinseki, 24 Vet.App. 428, 442 (2011) (“Fact finding is a responsibility that is ultimately committed to the Board.”).
Effective judicial review of whether there was informed consent is also complicated by the
fact that the Board appears not to have reviewed the consent forms at  issue but relied on Dr. Drumm’s descriptions of them. The consent forms, the Board indicated,were “not of record”; rather, the Board relied on Dr. Drumm’s description of those forms. See R. at 6.
It is not clear how the Board could have evaluated, without reviewing the forms themselves, Mr.
Puckett’s claim that he was not informed of the risk of paraplegia. R. at 31; see 38 C.F.R. § 17.
32(c) (stating that the practitioner performing the procedure “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, [and] complications or side effects” and that the patient “must be given the opportunity to ask questions, to indicate comprehension of the information provided”). Indeed, it is evident from the consent forms of record that the terms paralysis or paraplegia are not mentioned in the sections entitled “What are the known risks of this treatment/procedure?”; paralysis is listed as a risk only of not undergoing a surgical procedure and as a “rare” complication associated with anesthesia. R. at 1017, 1019, 1036.
Thus, because the Board failed to address the reasonably raised issue of
whether Mr. Puckett’s consent was informed, its decision must be set aside
and the matter remanded for additional
8

development, if necessary, and readjudication. See Tucker v. West, 11 Vet.
App. 369, 374 (1998)

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3545
KENNETH W. PUCKETT, 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: Veteran Kenneth W. Puckett appeals through counsel an
August 10,
2012, Board of Veterans’ Appeals (Board) decision denying compensation
under 38 U.S.C. § 1151
for paraplegia, status-post aortic root valve replacement. Record (R.) at
3-15. 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 reasons set forth below, the Court will set aside the
August 2012 Board decision and
remand the matter for additional development, if necessary, and
readjudication consistent with this
decision.
I. FACTS
Mr. Puckett served on active duty in the U.S. Air Force from July 1978 to
June 1983. See
R. at 4, 1137. In February 2009, he underwent ascending aortic dissection
repair and aortic valve
replacement with coronary bypass graft at the VA medical center in Palo
Alto, California, to treat
an aortic root aneurysm. R. at 9, 883, 1015. Prior to surgery the veteran
signed two consent forms.
R. at 1015-40.
Section 12 of both forms—entitled “What are the known risks of this
treatment/procedure?”—did not list paralysis or paraplegia. R. at 1017-
19, 1029-34. Section 14 of

both forms—entitled “Is it expected that an anesthesia practitioner
will be involved in this
treatment/procedure?”—stated that “rare” but “severe” complications that
might arise from
anesthesia use included, among other things, paralysis. R. at 1019, 1036.
Although the procedure
initially appeared successful (R. at 90, 883-87), Mr. Puckett “developed
several complications[,]
which ultimately contributed to or caused some type of neurological
compromise which resulted in
bilateral flaccid paralysis [in the upper extremities]” (R. at 90).
Seealso R. at 880-81 (February2009
discharge summary describing post-surgical renal failure, respiratory
failure, prolonged ileus, and
functional quadriparesis),1
996 (June 2011 orthopedic surgery note remarking that the veteran “was
on life support for approximately 1 year” following surgery).
In February 2011, he sought compensation under 38 U.S.C. § 1151 for
paraplegia resulting
from the February 2009 surgery. R. at 1065-81. In September 2011, VA
requested a medical
opinion as to whether (1) the February 2009 surgery or accompanying VA
care caused additional
disability, that is, paraplegia; (2) paraplegia was an ordinary risk of
the treatment provided or was
an event not reasonably foreseeable; (3) VA failed to exercise the degree
of care that would be
expected of a reasonable healthcare provider; and (4) VA carelessness,
negligence, lack of proper
skill, error in judgment, or similar fault proximately caused paraplegia.
R. at 113-14.
VA physician Larry Drumm provided a November 2011 opinion. First, Dr.
Drumm opined
that Mr. Puckett’s paraplegia resulted from VA care pertaining to the
February 2009 surgery. R. at
97; see R. at 90 (“Overall, the VA care did cause or create an additional
disability separate and
distinct from the open heart surgery in February 2009.”). In response to
the question, “Was
paraplegia an ordinary risk of the treatment provided; or, was it an event
not reasonably
foreseeable?,” the physician stated: “Paraplegia is a risk of cardiac
surgery. This is documented in
the following literature review: . . . ‘Prevention of neurologic
complications of cardiac surgery” . .
. [and] ‘Neurologic complications of cardiac surgery.'”2
Id. However, Dr. Drumm stated that he
could not answer the third and fourth questions because of the absence of
necessary post-surgical
records. R. at 97-98.
“Ileus” is “obstruction of the intestines” DORLAND’S ILLUSTRATED
MEDICALDICTIONARY 819 (32d ed. 2012)
[hereinafter DORLAND’S]. “Quadriparesis” is “muscular weakness affecting
all four limbs.” Id. at 1906.
2
1
These articles do not appear in the record; however, Mr. Puckett attached
them to his principal brief.
2

In late November 2011, after obtaining and reviewing these records, Dr.
Drumm offered an
addendum to his earlier opinion. He stated that “there were multiple
reasons or possible etiologies
for [Mr. Puckett’s] eventual neural compromise which resulted in his upper
extremityparalysis,” but
that”[e]achofthecomplicationsexperiencedbythepatientduringhispost
operativerecoveryperiod
were normal possible complications for his surgery and post operative
period.”3
R. at 87. “Each of
those complications can occur in the best of settings,” he continued, “
with even the most skilled
medical staff, facilities, and circumstances.” R. at 90. Finally, Dr.
Drumm opined that paraplegia
was not a “necessary consequence” of the surgery—that is, it was not “
certain to result from, or . .
. intended to result from, the examination or medical or surgical
treatment administered” (R. at
92)—and observed that the consent forms Mr. Puckett signed “acknowledged
multiple possible
complications of his scheduled cardiac surgery, including those which may
have resulted in his
neural compromise” (R. at 89).
Based on this opinion, in December 2011, the VA regional office (RO)
denied section 1151
compensation for paraplegia. R. at 99-107. Mr. Puckett disagreed with this
decision (R. at 77), the
RO continued its denial (R. at 53-72), and the veteran appealed to the
Board (R. at 51-52). The
veteran testified at a June 2012 Board hearing that during the informed
consent meeting, medical
personnel “explained . . . everything [he] could face except some of the
paralysis and the details”;
he also stated that the informed consent discussion was conducted by
nurses and not the surgeon.
R. at 31.
In the August 2012 decision on appeal, the Board denied section 1151
compensation for
paraplegia, following aortic root valve replacement. First, the Board
found that the November 2011
VA opinion was adequate for evaluation purposes and that VA’s duty to
assist was satisfied. R. at
7-8. Next, the Board determined that Mr. Puckett’s paraplegia was an
additional disability that
resulted from VA care and was not due to his willful misconduct. R. at 8-
10. However, relying on
Dr. Drumm’s November 2011 opinion, the Board found that “the evidence does
not indicate that the
3
Specifically, Dr. Drumm identified those complications as significant
respiratory distress/failure, which led
to multiplehypoxemicevents;multipleatrialfibrillationepisodes,whichcould
have led to additionalturbulenceof blood
flow and possible clot or emboli formation, which then could lead to
hypoxemic cerebral events; multiple episodes of
hypotension,withlowsystemicvascularresistance,whichcould lead
tohypoxemicneuralstates;andnoscomialbacterial
sinusitis which could lead to spiking fevers or hypotensive states, both
of which could lead to transient hypoxemic neural
states. R. at 86. “Hypoxemia” is “deficient oxygenation of the blood.”
DORLAND’S at 908.
3

[v]eteran’s current disorder was due to negligent care on VA’s [part] or
that it was not reasonably
foreseeable.” R. at 11. The Board stated that the consent forms were “not
of record” but that “the
VA examiner described the form[s] in sufficient detail for the Board to
adequately understand what
complications may arise.”4
R. at 6. “[T]he [v]eteran,” the Board continued, “has not disputed [sic]
that the informed consent form[s were] somehow inadequate.” Id. The Board
adopted Dr. Drumm’s
opinion that, by signing the February 2009 consent forms, Mr. Puckett
acknowledged possible
complications including those that may have resulted in his neural
compromise. R. at 13. This
appeal followed.
II. ANALYSIS
Mr. Puckett argues that the Board erred by(1) failing to make a finding as
to whether he gave
informedconsent,failingto considerhis
laystatementsregardingwhetherhegaveinformedconsent,
and failing to find as a matter of law that informed consent was not given
; (2) relying on Dr.
Drumm’s inadequate medical opinion regarding reasonable foreseeability;
and (3) invoking its own
medical judgment. Appellant’s Brief (Br.) at 6-19.5
TheSecretarydisputes each of these contentions
and argues for the propriety of the Board’s decision. Secretary’s Br. at
10-30.
A veteran who suffers disability resulting from hospital care or medical
or surgical treatment
provided by a VA employee or in a VA facility is entitled to compensation
for the additional
disability “in the same manner as if such additional disability . . . were
service-connected” if the
additional disability was not the result of 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.” 38 U.S.C.
§ 1151(a)(1)(A), (B); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed.
Cir. 2013). Carelessness,
negligence, lack of proper skill, error in judgment, or similar instance
of fault in VA hospital care
4
It is unclear why the consent forms were not reviewed by the Board when
they are in the record before the
Court.
5
Oddly, Mr. Puckett also argues that the Board erred by failing to
establish Dr. Drumm’s competence to offer
the medical opinion requested, but then acknowledges that binding
precedent holds that the Board was under no
obligation to do so in this case. Appellant’s Br. at 20 (citing Rizzo v.
Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Cox
v. Nicholson, 20 Vet.App. 563 (2007)). For the reason noted by Mr. Puckett,
the Court rejects his competence argument.
4

or medical or surgical treatment is established when hospital care or
medical or surgical treatment
caused the veteran’s 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
hospital care or medical
or surgical treatment without the veteran’s informed consent. 38 C.F.R. §
3.361(d)(1)(i), (ii) (2013).
Alternatively, to establish that the proximate cause of a disability was
an event not reasonably
foreseeable, the evidence must demonstrate that a reasonable health care
provider could not have
foreseen the event. 38 C.F.R. § 3.361(d)(2).
The event does not have to be “completely
unforeseeable or unimaginable” but it must “be one that a reasonable
health care provider would not
have considered to be an ordinary risk of the treatment provided.” 38 C.F.
R. § 3.361(d)(2); see
SchertzNext Hit v. Shinseki, 26 Vet.App. 362, 367-69 (2013).
The Secretary is required to “give a sympathetic reading to the veteran’s
filings by
‘determining all potential claims raised bythe evidence, applying all
relevant laws and regulations.'”
Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting
Roberson v. Principi, 251 F.3d
1378, 1384 (Fed. Cir. 2001)). Additionally, “theBoard is requiredto
adjudicateallissues reasonably
raised by a liberal reading of the appellant’s substantive appeal,
including all documents and oral
testimony in the record prior to the Board’s decision.” Brannon v. West,
12 Vet.App. 32, 34 (1998).
A. Informed Consent
Mr. Puckett argues that the Board did not address whetherVA obtained his
informedconsent
for the surgeries and that, even if the Board did, it failed to consider
his laystatements as to informed
consent. Appellant’s Br. at 11-14. The Court agrees that the Board did not
adequately consider the
issue of whether his consent was informed consent.
“Todeterminewhethertherewasinformedconsent,VAwill
considerwhetherthehealthcare
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
freelygiven consent that follows
a careful explanation by the practitioner to the patient or the patient’s
surrogate of the proposed
diagnostic or therapeutic procedure or course of treatment.” 38 C.F.R. §
17.32(c) (2013). It also
provides:
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
5

treatment; the expected benefits; reasonably foreseeable associated risks,
complications or side effects; reasonable and available alternatives; and
anticipated
results if nothing is done.[6]
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.
Id. Although informed consent can be express (oral or written) or implied,
id., the informed consent
process must always be “appropriately documented in the health record,” 38
C.F.R. § 17.32(d)(1).
In McNair v. Shinseki, 25 Vet.App. 98, 107 (2011), 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.”
The Board’s determination that a veteran gave informed consent for VA
medical or surgical
treatment is a finding of fact that the Court reviews under the “clearly
erroneous” standard set forth
in 38 U.S.C. § 7261(a)(4). See 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. 38 U.S.C. § 7104(d)(1); Caluza v. Brown,
7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990).
TheBoardstatedthat”the[v]eteranhasnot disputed [sic]
thattheinformedconsentformwas
The Court notes that treatment “complications” are different from
treatment “risks” and “side effects.”
Compare STEDMAN’SMEDICALDICTIONARY 398 (28th ed. 2006) (defining”
complication” as “a morbid process or event
that occurs during the course of a disease that is not an essential part
of that disease, although it may result from it or from
independent causes”), with DORLAND’S at 1649 (defining “risk” as “a danger
or hazard, the probability of suffering harm
or other unfavorable outcome”), and id. at 595 (defining “side effect” as “
a consequence other than the one(s) for which
an agent or measure is used, as the adverse effects produced by a drug,
especially on a tissue or organ system other than
the one sought to be benefitted by its administration”).
6
6

somehow inadequate.” R. at 6. To the extent that this statement was a
determination by the Board
that informed consent was not at issue on appeal, the Board ignored Mr.
Puckett’s June 2012
testimony before the Board. Specifically, the veteran stated that nurses,
rather than the surgeon who
operated on him, conducted the consent meeting and that they “explained
. . . everything [he] could
face except some of the paralysis and the details.” R. at 31 (emphasis
added). This testimony
reasonably raises the issue whether his consent was informed, and the
Board therefore should have
addressed that issue. See Szemraj, 357 F.3d at 1373; McNair, 25 Vet.App.
at 106-07; Brannon,
12 Vet.App. at 34; see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008
) (“[T]he duty to assist
applies to the entire claim, which might require assistance in developing
more than one theory in
support of that claim.”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009); Dela
Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (stating that the Board must
address all relevant
evidence favorable to a claimant).
The Court expresses no view on the merits of the inadequacies Mr. Puckett
alleges, but the
absence of Board findings in this regard prevents the Court from
considering the propriety of the
matter. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (“It is the
responsibility of the [Board],
not this Court, to assess the credibility and weight to be given to
evidence.”); see also Hensley v.
West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (noting “the general rule that
appellate tribunals are not
appropriate fora for initial factfinding”).
The Secretary, pointing to the Board’s notation of Dr. Drumm’s statement
that Mr. Puckett
acknowledged complications that “may have resulted in his neural
compromise” (R. at 13), asserts
that the Board did adequately address the issue of informed consent.
Secretary’s Br. at 24. The Secretary is in error. The Board quoted this statement in the context of
evaluating whether the complications the veteran suffered were reasonably foreseeable. Reasonable foreseeability and informed consent are distinct avenues toward obtaining section 1151 compensation and entail different considerations. See, e.g., Schertz v. Shinseki, 26 Vet.App. 362, 370 (2013) (noting that a consent form should “reflect[ ] what would be disclosed by the ‘reasonable health care provider’ primarily responsible for the patient in a given case, which may vary depending on the patient’s physical condition, age, or other individual factors”); McNair, 25 Vet.App. at 104 (observing that the question of informed consent is predicated on “the unique
characteristics of each patient and each
7

medical procedure”). In other words, one line in the Board’s reasonable foreseeability analysis does not adequately address the reasonably raised issue of whether Mr. Puckett’s consent was informed.
Moreover, the portion of Dr. Drumm’s opinion cited by the Secretary appears to address
whether the veteran was informed of “complications” that might result from the surgery. See R. at
91 (“[E]ach of those possible etiologies which could have caused the veteran’s upper extremity
paralysis were possible complications of the veteran’s surgery, and were made known to the veteran prior to his surgery . . . .” (emphasis added)). This statement does not address whether the veteran was informed of risks or side effects as required by § 17.32(c). See
supra note 6 (establishing a distinction between risks, side effects, and complications). Thus, despite the Secretary’s arguments, whether Dr. Drumm adequately addressed the issue of informed consent is, as previously noted, a matter for the Board to make in the first instance. See Hensley, 212 F.3d at 1263; Owens, 7 Vet.App. at 433; see also Kahana v. Shinseki, 24 Vet.App. 428, 442 (2011) (“Fact finding is a responsibility that is ultimately committed to the Board.”).
Effective judicial review of whether there was informed consent is also complicated by the
fact that the Board appears not to have reviewed the consent forms at  issue but relied on Dr.
Drumm’s descriptions of them. The consent forms, the Board indicated,were “not of record”; rather, the Board relied on Dr. Drumm’s description of those forms. See R. at 6.
It is not clear how the Board could have evaluated, without reviewing the forms themselves, Mr.
Puckett’s claim that he was not informed of the risk of paraplegia. R. at 31; see 38 C.F.R. § 17.
32(c) (stating that the practitioner performing the procedure “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, [and] complications or side effects” and that the patient “must be given the opportunity to ask questions, to indicate comprehension of the information provided”). Indeed, it is evident from the consent forms of record that the terms paralysis or paraplegia are not mentioned in the sections entitled “What are the known risks of this treatment/procedure?”; paralysis is listed as a risk only of not undergoing a surgical procedure and as a “rare” complication associated with anesthesia. R. at 1017, 1019, 1036.
Thus, because the Board failed to address the reasonably raised issue of
whether Mr. Puckett’s consent was informed, its decision must be set aside
and the matter remanded for additional
8

development, if necessary, and readjudication. See Tucker v. West, 11 Vet.
App. 369, 374 (1998)
(holding that remand is the appropriate remedy “where the Board has
incorrectly applied the law,
failed to provide an adequate statement of reasons or bases for its
determinations, or where the
record is otherwise inadequate”); see also Schertz, 26 Vet.App. at 370 (
remanding the matter for the
Board to provide adequate reasons or bases regarding informed consent).
On remand, Mr. Puckett is free to submit any additional evidence and
arguments in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See
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.
B. Other Matters
The Court need not resolve Mr. Puckett’s other allegations of error at
this time because he
may raise them before the Board on remand. See Dalton v. Nicholson, 21 Vet.
App. 23, 35-36
(2007). In particular, Mr. Puckett’s contention that the two articles Dr.
Drumm cited do not support
his opinion regarding reasonable foreseeability because they make no
reference to paraplegia or
paralysis as a possible complication to surgery(Appellant’s Br. at 10) is
one that this Court is unable
to consider. See Hensley, 212 F.3d at 1263; Owens, 7 Vet.App. at 433. The
veteran’s observation
might be correct, but it does not necessarily mean that the cited articles
fail to support Dr. Drumm’s
opinion. AlthoughneithertheBoardnorthis Court is qualified to employour
own medical judgment
to resolve this issue, see Colvin v. Derwinski, 1 Vet.App. 171, 172 (1999),
the Board has the
discretion to seek an advisorymedical opinion when necessaryto resolve a
complex or controversial
medical issue, 38 U.S.C. § 7109(a); 38 C.F.R. § 20.901(d) (2013). The
Court has no similar
authority. Likewise, Mr. Puckett might seek to support his argument that
paraplegia was not a
reasonably foreseeable risk of the procedure he underwent by submitting
medical articles or treatise
evidence, see 38 C.F.R. § 3.159(a)(1) (2013); see also Hensley, 212 F.3d
at 1265; Rucker v. Brown,
10 Vet.App. 67, 73-74 (1997), but this Court cannot consider this kind of
evidence in the first
instance, see Jones v. Shinseki, 26 Vet.App. 56, 64 (2012). In sum, the
remainder of Mr. Puckett’s
arguments are best addressed to the Board in the first instance.
9

III. CONCLUSION
Upon consideration of the foregoing, the August 10, 2012, Board decision
is SET ASIDE,
and the matter is REMANDED for additional development, if necessary, and
readjudication
consistent with this decision.
DATED: May 12, 2014
Copies to:
Mark R. Lippman, Esq.
VA General Counsel (027)
10

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