Citation Nr: 1301624 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-02 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for vision loss in the left eye, claimed as due to VA medical treatment in July 2001. REPRESENTATION Appellant represented by: Richard E. Geyer, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2010, the Board remanded the matter for additional development and it was returned to the Board. In October 2011, the Board denied the benefits sought on appeal. The appellant appealed the Board's October 2011 decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2012, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. In March 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for ptsosis in the left eye, claimed as due to VA medical treatment in July 2001 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See September 2010 statement. The Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The appellant claims that he has vision loss in his left eye due to a VA cataract operation in July 2001. A July 2001 VA operation report reflects that the appellant signed an informed consent form prior to the surgery in July 2001. However, a copy of the informed consent form is not in the claims file. In July 2003, the VA Regional Office denied the appellant's claim under the Federal Tort Claims Act (FTCA). In the denial, the RO specifically stated that "a signed consent form dated July 9, 2001, is contained in the medical records." In May 2010, the VA Appeals Management Center (AMC) requested all of the records reviewed in the July 2003 decision from the Columbia, South Carolina, General Counsel. The General Counsel sent a copy of the decision and claim, but no other records. The AMC made a second request for a complete copy of the records in August 2010. A negative response was not received from the General Counsel. In May 2010, the AMC also asked the Charleston, South Carolina, VA Medical Center (VAMC) for medical records, including a copy of the informed consent form. A negative response was not received. As the records, particularly the informed consent form, are pertinent to the claim, another attempt must be made to obtain the records from the Columbia RO General Counsel and Charleston VAMC, including a copy of the appellant's informed consent form. VA obtained a VA examination in May 2009. The VA examiner found that the appellant had a complication from the surgery that was considered "an unfortunate but occasional complication of cataract surgery where the posterior capsule tears and an anterior chamber intraocular lens needs to be implanted." As noted in the July 2012 JMR, the May 2009 VA opinion is inadequate because it did not address whether any additional disability, to include aggravated glaucoma or blindness, resulting from the July 2001 surgery at the Charleston VA Medical Center was reasonably foreseeable. Further, the VA examiner opined that it was at least as likely as not that the surgery aggravated the appellant's left eye glaucoma. However, the VA examiner did not address whether the appellant's aggravated glaucoma due to the July 2001 surgery caused the blindness in the left eye, or alternatively, whether the blindness would have occurred anyway as part of the natural progression of the preexisting glaucoma. Accordingly, a new VA opinion is necessary to address these issues and the claim must be remanded. When VA has actual notice that a claimant is receiving disability benefits from the Social Security Administration (SSA), the duty to assist requires VA to obtain a copy of the decision and the supporting medical records upon which the award was based. Murincsak v. Derwinski, 2 Vet. App. 363, 372-78 (1991). A December 2006 VA treatment record indicates the appellant received SSA benefits. No SSA records have been associated with the claims file. It does not appear that the RO attempted to obtain the records. As the records may be relevant to the claim, an attempt should be made to obtain the records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Attempt to obtain the appellant's Social Security Administration records from the Social Security Administration. If no records are available, the claims folder must indicate this fact. 2. Request all available records related to the appellant's Federal Tort Claims Act claim from the District Regional Counsel and/or General Counsel, including a copy of the appellant's informed signed consent form pertaining to the appellant's July 2001 eye operation. If the records are unavailable, a negative response is required. 3. Request a copy of the appellant's informed consent form from the Charleston, South Carolina, VA Medical Center (VAMC). If the record is unavailable, a negative response is required. 4. Following completion of the above and after any records received have been associated with the claims file, provide the claims file to the VA examiner who conducted the May 2009 VA examination, or if he is unavailable, a VA clinician with appropriate expertise. The VA clinician should note the appellant's history of eye disabilities both before and after the July 2001 surgery, and address disabilities documented in the record. The VA clinician should provide the following opinions: (a) Whether it is at least as likely as not (i.e. a 50 percent probability) that the complication of a posterior capsular tear, which resulted in an anterior intraocular lens needing to be implanted, was reasonably foreseeable. (b) Whether it is at least as likely as not (i.e. a 50 percent probability) that any additional disability, including aggravated glaucoma and/or blindness, resulting from the July 2001 surgery at the Charleston VAMC was reasonably foreseeable. (c) Considering that the May 2009 VA examiner opined that it was at least as likely as not that the cataract surgery aggravated the appellant's left eye glaucoma: (i) Is it at least as likely as not that the appellant's aggravated glaucoma due to the July 2001 surgery caused his left eye blindness, or (ii) Is it at least as likely as not that the left eye blindness would have occurred anyway as part of the natural progression of the preexisting glaucoma. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the VA clinician determines that an examination is necessary to provide the opinions, such should be accomplished. 5. Thereafter, readjudicate the issue on appeal of entitlement to compensation under 38 U.S.C.A. § 1151 for vision loss in the left eye, claimed as due to VA medical treatment in July 2001. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant 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 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. 2012). _________________________________________________ M. E. LARKIN 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).