Citation Nr: 0813584 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 00-04 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of the right eye claimed to be the result of Department of Veterans Affairs (VA) medical treatment. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty from April 1945 to October 1945. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1999 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico that denied the appellant's claim of entitlement to disability compensation benefits pursuant to 38 U.S.C.A. § 1151 for additional right eye disability claimed to be due to VA medical and surgical treatment. The Board notes that, effective October 1, 1997, 38 U.S.C.A. § 1151 was amended. This amendment, however, does not apply to cases filed prior to the effective date. Pub. L. No. 104- 204, § 422(a)-(c) (1996). As the appellant's 38 U.S.C.A. § 1151 claim was filed in May 1998, after the effective date, the amended provisions must be applied. VAOPGCPREC 40-97. In August 2004, the Board advanced this case on the docket, pursuant to 38 C.F.R. § 20.900(c). The Board previously denied the appellant's right eye 38 U.S.C.A. § 1151 claim in a December 29, 2005 decision. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and, in April 2007, the parties filed a Joint Motion for Remand. The basis for the Motion for Remand was that medical documents relevant to the appellant's contention that he had not informed of the risks associated with his right eye surgery prior to the procedure were written in Spanish. In particular, it was indicated that it was unclear how the doctor who provided the February 2004 VA medical opinion could have made any determination given the fact that pertinent medical records were not in English. An April 2007 Order of the Court granted the Joint Motion and vacated the Board's decision. The 38 U.S.C.A. § 1151 issue on appeal was remanded for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below. In August 2002, a Board hearing was conducted at the RO before an Acting Veterans Law Judge who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. The Acting Veterans Law Judge who conducted the August 2002 Travel Board hearing is no longer employed at the Board. In January 2008, the Board sent a letter to the appellant's attorney to notify him of this and of the appellant' right to another Board hearing pursuant to 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.707. The attorney has not yet responded to this letter. A hearing on appeal must be granted when an appellant expresses a desire for it. 38 C.F.R. § 20.700(a). On remand, it should be determined whether or not the appellant desires another Board hearing, and if so, what kind of hearing he wants. As directed in the Joint Motion for Remand, the six pages of informed consent documents located in Volume II of the claims file should be translated from Spanish into English and associated with the claims file. The claims file should be returned to the physician who conducted the February 2004 VA examination for an addendum based on the added English medical records. In addition, the RO should be sure that all documents in Spanish in the claims file are translated into English. Effective October 1, 1997, 38 U.S.C.A. § 1151 was amended such that negligence by the VA would have to be shown for a claimant to obtain compensation under the statute. As noted above, the appellant's 38 U.S.C.A. § 1151 claim was filed in May 1998, so that the amended statute must be applied. Id. The provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2007) provide that compensation under chapter 11 of Title 38 of the United States Code shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. For the purposes of this section, a disability is a qualifying additional disability if the disability is not the result of the veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary of VA, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability was-- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable;... 38 U.S.C.A. § 1151 (West 2002 & Supp. 2007). The evidence of record includes a VA medical opinion rendered in February 2004. However, no medical opinion of record addresses the question of whether the post-surgery complications experienced by the appellant were reasonably foreseeable. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), the implementing regulations found at 38 C.F.R. § 3.159 (2007) and any other applicable legal precedent is completed. In particular, the AMC/RO should notify the veteran of the information and evidence yet needed to substantiate his 38 U.S.C.A. § 1151 claim and of what part of such evidence he should obtain, and what part the AMC/RO will yet attempt to obtain on his behalf, including VA records. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant should also be told to provide any evidence in his possession pertinent to his claim. 38 C.F.R. § 3.159 (2007). 2. The AMC/RO must inform the veteran that the Veterans Law Judge who conducted the November 2004 hearing is no longer employed at the Board and that he has a right to another Board hearing pursuant to 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.707. The letter should also state that if no response is received, it will be assumed that he does not want any additional hearing. 3. The documents identified in the Joint Motion as requiring translation should be translated from Spanish into English. The translations must be associated with the claims file. Any additional untranslated Spanish documents should also be translated into English and the translations must be associated with the claims file. 4. The AMC/RO should arrange for a comprehensive review of the veteran's claims file by the VA physician who provided the February 2004 opinion to determine the nature and etiology of the complications associated with the appellant's right eye medical and surgical treatment. If that physician is unavailable, the requested opinions should be furnished by an ophthalmologist. The reviewing doctor should furnish opinions concerning the following: (a) Whether the veteran was apprised of the risks associated with the surgical procedures performed on his right eye in a VA facility. The reviewer must cite to the informed consent documents and medical notes of record in making this determination; (b) The manifestations of right eye pathology present prior to the July 1983 intracapsular cataract extraction with sector iridectomy; (c) The manifestations of right eye pathology present prior to the January 1984 suture loosening; (d) The manifestations of right eye pathology present prior to the April 1984 anterior vitrectomy and secondary intraocular right eye lens implantation; and (e) Whether the veteran developed any additional identifiable right eye disability due to any VA treatment or care rendered in connection with the July 1983 intracapsular cataract extraction with sector iridectomy; with the January 1984 suture loosening; or with the April 1987 anterior vitrectomy and secondary intraocular right eye lens implantation. Specifically, the reviewer should address the questions of: (i.) whether the course of treatment the veteran received in VA facilities was in any way careless, negligent, lacking in proper skill, or reflective of error in judgment or similar instance of fault on the part of VA in furnishing the hospital care, medical surgical treatment, or examination. A discussion of the known limitations of the available procedures at the time in question would be helpful. It should also be noted whether any right eye pathology was the result of an event not reasonably foreseeable; (ii.) whether the course of treatment the veteran received related to the various right eye procedures was in any manner related to the development of any right eye pathology, including whether the care was untimely or inadequate; and (iii) whether the course of treatment the veteran received from VA related to his right eye between July 1983 and April 1987 was in any manner related to the cause of the veteran's additional claimed right eye disability, if any. (The reviewing physician must be advised that the question of negligence is at issue. The reviewer should identify the information on which s/he based the opinions. If a medically justified opinion is impossible to formulate, the reviewer should so indicate.) If the reviewer determines that an examination is needed before the requested opinions can be rendered, the AMC/RO should schedule the appellant for such an examination. 5. Upon receipt of VA reviewer's report, the AMC/RO should conduct a review to verify that all requested opinions have been provided. If information is deemed lacking, the AMC/RO should refer the report to the VA reviewer for corrections or additions. See 38 C.F.R. § 4.2. 6. Thereafter, the AMC/RO should consider all of the evidence of record, including the informed consent records, and re-adjudicate the 38 U.S.C.A. § 1151 claim. If any benefit sought on appeal remains denied, the appellant and his attorney should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).