Citation Nr: 1302076 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-21 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to April 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals a November 2011 SHARES Print Screen showing that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since November 1991 with a disability onset date of January 1980. The remaining records are duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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, D.C. VA will notify the Veteran if further action is required. REMAND In his claim for compensation under 38 U.S.C.A. § 1151, the Veteran notes that he underwent surgery on his left eye in April 1995 at Menorah Medical Center, a private facility, under the direction and payment of VA. Thereafter, in July 1995 the Veteran underwent surgery for his left eye once again at the Kansas City VA Medical Center. The Veteran contends that Dr. B told the Kansas City VA Medical Center that the Veteran was not to receive any further laser treatments on his left eye but that the surgeon at the Kansas City VA Medical Center refused to abide by Dr. B's request and used a laser which, according to the Veteran, resulted in permanent damage to the left eye subsequently resulting in loss of all vision in the left eye. In connection with this claim, the agency of original jurisdiction (AOJ) requested and obtained what appear to be all available VA treatment records pertaining to the 1995 treatment for the Veteran's left eye, including the April 1995 operative report from Menorah Medical Center and the July 1995 operative report from the Kansas City VA Medical Center. However, in January 2010 correspondence the Veteran indicated that he also received treatment at the University Kansas Medical Center. Therefore, in an August 2012 letter, the AOJ requested that the Veteran complete an authorization form so as to allow VA to obtain such records. However, the Veteran did not respond and there are no records from University Kansas Medical Center in the claims file. As such records are relevant to the claim on appeal, the Veteran should be provided with another opportunity to submit such records or authorize VA to obtain them. Also, it appears that there may be outstanding VA treatment records. A review of the claims file shows that the Veteran sought VA treatment from April 1986 through August 2011 but there appear to be large gaps of VA treatment records missing from the claims file, notably from August 1986 through January 1995, from October 1996 through July 2011, and from August 2011 through the present. Given the need to remand for other reasons, the AOJ should also attempt to obtain any outstanding VA treatment records for these time periods. Additionally, a review of the claims file shows that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since November 1991, with a disability onset date of January 1, 1980. However, neither a decision regarding this award nor any of the medical records used in the decision are associated with the claims file. As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Finally, the Board notes that the AOJ obtained an opinion in October 2008 in connection with the Veteran's claim for benefits under 38 U.S.C.A. § 1151. After reviewing the file and noting the Veteran's pertinent medical history with respect to his left eye, the examiner determined that the appropriate treatment was provided in a timely manner and, as relevant to laser surgery performed by VA, the laser was appropriately placed. Furthermore, he indicated that the Veteran had severe disease, which would limit his visual prognosis with no apparent misoperation done. However, as VA is obtaining additional records, the claims file should be returned to the October 2008 VA examiner so that he may review the newly received records and offer an updated opinion. 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. Notify the Veteran of the necessity of obtaining treatment records from University Kansas Medical Center and inform him that he may submit these records himself or authorize VA to obtain them on his behalf. After securing any necessary authorization from him, obtain records from University Kansas Medical Center. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request all outstanding VA treatment records dated from August 1986 through January 1995, from October 1996 through July 2011, and from August 2011 through the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Contact the SSA and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits in November 1991. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, request that the October 2008 VA examiner, or another appropriate VA examiner if the October 2008 VA examiner is unavailable, review the claims file along with any newly submitted medical records and offer an addendum opinion. A new VA examination is not warranted unless deemed so by the VA examiner. The VA examiner should specifically comment on the following: (a) Whether there is any additional disability (to include decreased vision) as the result of the use of lasers to treat the Veteran's left eye disorder in July 1995. Any additional disability must be specifically identified. (b) If there is additional disability, the examiner should provide an opinion as to whether it is at least as likely as not that the proximate cause of any such additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment; or whether such disability was due to an event not reasonably foreseeable. The examiner's attention is specifically directed toward VA treatment records dated from January 1995 to October 1995 as well as any newly obtained medical records. A complete rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation the examiner should so state and also explain why such an opinion cannot be made. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).