Citation Nr: 1301591 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-17 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection (or compensation under 38 U.S.C.A. § 1151 based on VA surgery in July 2000) for a left eye disability manifested by a small pupil. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1966 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, the current issue was remanded for additional development and to satisfy notice requirements. In September 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). The issue on appeal is characterized as stated on the preceding page to reflect more precisely the benefit being sought. In May 2009, the Board denied service connection for a left eye disability manifested by a cataract and a drooping eyelid. Consequently, this matter is no longer on appeal before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND The Veteran asserts that his left eye small pupil resulted either from an in-service shell fragment wound sustained near the vicinity of his left eye in July 1968, or from VA left eye cataract surgery in July 2000. The July 2000 surgery took place at the VA Medical Center (VAMC) in Chicago, Illinois. While the hospital admission report and operation report are both of record, there are no informed consent forms or a hospital discharge summary of record. (The operative report specifically states that "after obtaining informed consent" the Veteran was sedated.) Such VA records, specifically to include all electronic or paper (scanned) Forms SF-522 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures), have a bearing on the instant claim (and are constructively of record), and therefore they must be secured. In a January 2004 statement (received by VA in February 2005), the Veteran asserted that after his July 2000 left eye cataract surgery at the Chicago VAMC, he was seen at the VAMC in Salt Lake City, Utah, where his providers told him that "the eye was not set right. The pupil is off set." The Veteran alleged that his eye doctor at the Salt Lake City VAMC then tried laser surgery which did not help. VA records relating to such treatment and laser surgery are not associated with the record available for review; they may have a bearing on the instant claim (and are constructively of record), and therefore they must be secured. In the September 2012 advisory medical opinion from the VHA, the opining physician noted the following, in pertinent part: "Based on the information provided and since there is no clear evidence that a pupil problem existed prior to cataract surgery it seems most likely that the resultant pupil abnormality was a result of the [July 2000 VA] cataract surgery....Change in pupil size is common after cataract surgery. It is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the surgery. Pupil size changes after cataract surgery can be either an event which is expected (usually resulting from the need to increase pupil size to remove the cataract) or in this case more likely an event not reasonably foreseeable since his pupil may have constricted after surgery." The Board notes that the evidentiary question of whether the Veteran's post-surgery pupil size change was "an event which was expected" or "an event not reasonably foreseeable" cannot be answered until the informed consent forms have been reviewed and associated with the record. Accordingly, the case is REMANDED for the following: 1. The RO should secure complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disability, to specifically include the informed consent forms and hospital discharge summary for the Veteran's July 2000 left eye cataract surgery, all electronic or paper (scanned) Forms SF-522 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures), and any records of treatment and laser surgery following his July 2000 surgery. If any records requested are unavailable, the reason must be explained for the record. 2. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by additional evidence received, and then re-adjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The purpose of this remand is to ensure that all necessary development is completed. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ GEORGE R. SENYK 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) (2012).