Citation Nr: 0307201 Decision Date: 04/15/03 Archive Date: 04/24/03 DOCKET NO. 02-08 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than July 23, 1996, for an award of compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for additional disability (postoperative residuals of laryngeal carcinoma, status-post laryngectomy) due to medical treatment provided by the Department of Veterans Affairs (VA). 2. Entitlement to service connection for hypertension. 3. To be clarified. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active military service from April 1965 to April 1967. This matter comes before the Board of Veterans Appeals (Board) on appeal from adverse rating decisions issued by the VA Regional Office (RO) in Waco, Texas. REMAND In March 1998, the RO issued a rating decision granting entitlement to VA compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability attributable to VA's failure to timely diagnose and treat the veteran's squamous cell carcinoma of the larynx. A 100 percent evaluation was assigned for residuals of laryngectomy, and the veteran was also awarded special monthly compensation (SMC) in accordance with 38 U.S.C.A. § 1114 (k) for complete organic aphonia. This award was made effective to the date of the veteran's claim received on July 23, 1996. The veteran concurred with the allowance of the benefit, but disagreed with the assigned effective date, and has argued during pendency of this appeal that VA benefits should have been made payable to the time his carcinoma was discovered and/or surgically treated by laryngectomy. He has argued, and submitted documentary evidence in support, that he presented claims to VA, and asserted an administrative claim under the Federal Tort Claims Act which essentially duplicated the same substantive allegations contained in his later § 1151 claim. The Board has carefully reviewed the evidence on file and finds that the veteran's initial November 1989 claim for compensation or pension alleging disabilities of allergy, bronchitis, and respiratory problems did not reasonably raise a § 1151 claim in that there was no allegations that VA failed to properly diagnose or treat laryngeal cancer. There is, however, documentation on file which essentially raises the same substantive argument as that made in the veteran's 1996 formal § 1151 claim. Specifically, there is on file a Xerox copy a Department of Justice Standard (DOJ) Form 95, dated March 28, 1990, which appears to initiate an administrative Federal Tort Claim against VA, based upon the veteran's argument that VA medical personnel misdiagnosed and failed to timely treat his cancer. This record is shown to have been addressed to the "Veterans Administration, Regional Office, 2515 Murworth Drive, Houston, Texas." The date stamp on the reverse of this document indicates that it was received by the Clerk of the Federal District Court for the Northern District of Texas on December 30, 1991. That is, although this Federal Tort Claim form is facially addressed to the VA Regional Office in Houston, it is unclear whether VA actually ever received this document. Additionally, there is on file a Xerox copy of VA Form 21- 526, Application for Compensation and Pension, dated February 14, 1990, which specifically appears to allege the substance of a § 1151 claim "for misdiagnosis of illness and neglection (sic) of medical treatment." Again, however, there is no original of this February 1990 form on file, and the copy in the veteran's claims folder is date stamped on the reverse as having been received by VA on August 18, 2000. The evidence on file indicates that, shortly after the veteran was diagnosed and treated for laryngeal cancer, he initiated an administrative Federal Tort Claim. This claim was considered by VA, and initially resulted in a settlement offer, which was later withdrawn. Although the veteran later attempted to bring a tort action in Federal District Court, he failed to initiate such action within the applicable statute of limitations, and his complaint was dismissed with prejudice. It seems clear that the appropriate office(s) of VA District Counsel serving the Houston and/or Waco Regional Offices were involved in consideration of this Federal Tort Claim, as was VA General Counsel in Washington, DC. It will be necessary for the RO to conduct a search for original records to determine whether the veteran filed a formal or informal claim validly raising his § 1151 claim earlier in time than his later July 23, 1996, claim. The two documents referred to above, as well as any other documents in the possession of VA, may serve to substantiate the veteran's claim for an earlier effective date for the payment of VA compensation pursuant to § 1151. Although a Federal Tort Claim filed with the Department of Justice would not necessarily constitute a valid claim for VA compensation, it must be considered whether VA was fairly on notice of such claim on an informal basis in accordance with 38 C.F.R. § 3.155, triggering VA's duty to provide the veteran with the appropriate formal claim form for execution. Additionally, if the VA Form 21-526, dated February 14, 1990, was actually filed with and received by VA at or around the time the copy of that form on file is dated, that would certainly seem to constitute a formal claim for VA compensation in accordance with § 1151 from the date of its receipt. The veteran has also claimed entitlement to service connection for hypertension secondary to his VA compensation for postoperative residuals of laryngeal carcinoma ("as if" service connected). In denying this claim, the RO has indicated that it is apparent that the veteran's hypertension preceded the onset of his laryngeal cancer, but this is not entirely clear from the evidence on file. In accordance with VCAA, the Board finds that it would be useful to have the veteran examined for the production of an opinion on this question in accordance with 38 U.S.C.A. § 5103A (d) (2). In his June 2000 Notice of Disagreement, the veteran wrote that his postoperative residuals of laryngeal carcinoma had resulted in numerous side effects "such as hypertension, dizziness, chronic fatigue and shortness of breath." In adjudicating this, the RO treated the claim regarding hypertension as a claim of service connection, but treated the veteran's remaining claimed symptoms as a claim for an increased evaluation (in excess of the presently assigned 100 hundred percent plus SMC) for the residuals of postoperative laryngeal carcinoma. The Board finds that this issue requires additional clarification. The question presented is whether the veteran is in fact claiming entitlement to an increased evaluation, or whether he seeks additional awards of service connection for disabilities either attributable to service, or attributable to the post operative residuals of laryngeal carcinoma. For these reasons and bases, the case is REMANDED to the RO for the following actions: 1. With respect to the veteran's claim for an earlier effective date for the payment of § 1151 benefits, the RO should conduct a thorough search for any additional records which would be in the possession of any VA department, indicating that the veteran might have earlier filed either a formal or informal claim for § 1151 benefits prior to his July 23, 1996, formal claim. The Board identified two specific documents above which may be held in files maintained by VA District Counsel for the Waco and/or Houston VA Regional Offices. These documents have been tabbed in the veteran's claims folder for identification. One, is a February 14, 1990, VA Form 21-526, which specifically appears to raise the issue of a § 1151 claim against VA for failure to properly treat and/or diagnose laryngeal cancer. The second form is a March 28, 1990, DOJ Standard Form 95, addressed to the VA Regional Office in Houston, which also alleges a failure to diagnose cancer. Although this form appears to have been used to initiate an administrative Federal Tort Claim, it was addressed to VA and would apparently have constituted an informal claim for § 1151 benefits in accordance with 38 C.F.R. § 3.155. Additional records may be found with the VA District Counsel or VA General Counsel which constitutes formal or informal claims which might serve as the valid basis for the assignment of an earlier effective date as claimed by the veteran. The RO should conduct a search for such records, document the conduct of such search in the veteran's claims folder, and consider the veteran's claim for an earlier effective date in light of all records identified and collected. 2. In accordance with VCAA, the RO should request the veteran to provide a clarification with respect to his June 2000 Notice of Disagreement which stated that his "condition" had caused numerous side effects such as hypertension, dizziness, chronic fatigue and shortness of breath. Specifically, the veteran should be asked to explain whether he is seeking an evaluation in excess of the presently assigned 100 percent plus SMC for his VA compensation payable under § 1151 for postoperative residuals of laryngeal carcinoma, or whether he is seeking entitlement to service connection for additional disabilities either attributable to service or incurred secondary to postoperative residuals of laryngeal carcinoma. He should be offered the opportunity of submitting any additional evidence or argument he may have together with his clarification of exactly what it is he seeks in this regard and the RO should offer to assist him in collecting any evidence which the veteran reasonably identifies by properly completed medical release forms. After properly clarifying these issues, the RO should take whatever additional development actions are necessary and proper in accordance with VCAA and sound principles of adjudication. 3. The veteran should be provided a VA examination by a cardiologist for the purpose of determining the etiological origin of hypertension which is documented as a current disability. The veteran's claims folder should be made available to the doctor for review and the resulting reported examination must state that the veteran's claims folder was made available and reviewed in conjunction with the examination. The cardiologist should confirm that the veteran has a current valid diagnosis of hypertension and must provide an opinion, based on examination and review of the evidence on file, as to whether it is at least as likely as not that the veteran's hypertension originated as a result of VA's failure to timely diagnose and treat laryngeal cancer and the resulting laryngectomy in late 1989 and early 1990. After the performance of this examination, the RO should review the report to ensure that it contains the necessary opinion and should take any corrective action necessary should the opinion be lacking or absent. 4. The RO must ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 is completed. 5. After completing the above development, the RO should again address the issues pending appeal. If the benefits sought on appeal are not allowed to the veteran's satisfaction, the RO must issue a Supplemental Statement of the Case which provides a discussion of the relevant laws and regulations and compliance with the duty to assist and notify in accordance with VCAA. The veteran and his representative must be provided an opportunity to respond. The case should then be returned to the Board for further review after compliance with all appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. _________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2001), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).