McNair: Informed Consent

Andrea M. McNair v. Eric K. Shinseki, Opinion Number 09-1813, decided November 18, 2011 involved a remand of the veteran’s claim for compensation for neuralgia of the breast (focal nerve damage) after a surgery at a VA facility.

The patient underwent a breast reduction at a VA facility which resulted in nerve damage and pain. She sought compensation under the theory that she was not informed of the chance of this type of pain occurring as a result of the surgery. The Board found no evidence of negligence or fault in the surgery and that the patient was provided with informed consent prior to surgery. The VA pointed to a signed generic informed consent form and applied the presumption of regularity to find the patient was properly informed of risks.

The issue in this case was the signed generic informed consent form versus the patient’s testimony that she was not informed of the possibility of continuing pain post-surgery.

The Court specifically found the presumption of regularity did not apply “to the scope of the advice and information given by a doctor to his patient” and that “such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not ‘the product of a consistent, reliable procedure,’ which is the ‘root’ of the presumption of regularity in our caselaw.”

The Court noted the Board found the preponderance of the evidence was against the patient’s assertion she was not informed of the possibility of neuralgia but that the reasons or bases of the determination was inadequate.

The Court also considered if the possibility of neuralgia would have been a minor deviation. 38 CFR Section 3.361(d)(1)(ii) states a finding of informed consent will not be defeated by a minor deviation that is “immaterial under the circumstances of the case”. A deviation is minor if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.

The Court found the Board did not discuss what a reasonable person would have done or the consequences of surgery as opposed to foregoing surgery.

The case is important in that begins to circumscribe the limits of the presumption of regularity while demonstrating a failure to provide adequate reasons or bases for a decision. It also fleshes out the concept of a minor deviation from in the informed consent context.

Decided by Chief Judge Kasold, Judges Hagel and Moorman.

Breniser: A Primer on Special Monthly Compensation (SMC)

George W. Breniser v. Eric K. Shinseki, Opinion Number 09-0728, decided September 19, 2011 involved a veteran already receiving SMC for loss of use of both feet seeking a higher SMC rate based on his need for aid and attendance, when the need for aid and attendance was a result of the loss of use of both feet.

This case is a good primer on SMC for anyone confronted with a question of SMC for the first time. Essentially, section 1114 (l) grants a higher rate ($3,075) than total disability for a veteran who has a service connected loss of use of both feet, or one hand and one foot, or some types of blindness, or is permanently bedridden. Section 1114(m) grants $3,392 for a veteran with a service connected loss of use of both hands, or both legs at such a level as to prevent natural knee action with a prosthesis, or one arm and one leg, or some types of blindness, all of which renders the veteran in need of regular aid and attendance. Section (n) grants $3, 860 for loss of use of both arms at levels preventing natural elbow action with prosthesis, or anatomical loss of both legs near the hip so as to prevent the use of prosthetics, or loss of one arm and one leg, or some types of blindness. Section (o) grants $4,313 for veterans who have suffered a disability under conditions which would entitle him to 2 or more of the rates provided in 1114(l)-(n), but “no condition being considered twice in the determination”. Section (p) offers half or full step increases to the next rate for a veteran whose condition exceeds the requirements of the rate they are at, but does not qualify for the higher rate. Section (r) allows an additional aid and attendance allowance when a veteran is rated per Section (o) and is in need of regular aid and attendance.

The veteran was basically arguing the need for aid and attendance was the qualifying condition when that need arose from the veteran’s only service-connected disability pursuant to section 1114(l). The Court considered language in section 1114(o), which prohibits a condition from being considered twice, and found it a valid interpretation and then applied it to conclude that a veteran cannot establish entitlement to a higher rate of SMC under section 1114(o)—unless the need for aid and attendance arises from a disability other than that for which the veteran is already in receipt of SMC.

However, the Court did remand the case because the VA did not even consider Section (p) in its analysis.

Chief Judge Kasold dissented and pointed to the plain language of section 1114 (o) and said the veteran had loss of both feet and was in need of aid and attendance. He explains the term “no condition being considered twice” was meant to prevent a veteran from seeking a higher rating for loss of both legs by arguing this was covered by both 1114 (l) and (m).

Decided by Judges Lance and Schoelen with a dissent in part by Chief Judge Kasold.