Citation Nr: 1303679 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-11 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for bilateral eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from January 1962 to January 1965. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2012, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. 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 In February 2006, the Veteran filed a claim for VA compensation benefits pursuant to 38 U.S.C.A. § 1151, asserting that he had sustained an additional disability as a result of cataract surgery performed at the Montgomery, Alabama, VA medical center in 2004. At the September 2012 Travel Board hearing, a second theory of entitlement was raised, i.e., that he had sustained an additional disability as a result of VA's failure to provide proper treatment for a detached retina. Specifically, in a February 2006 statement, the Veteran indicated that he was diagnosed with cataracts in 2004, that he had surgery on his left eye first and then the right eye. The Veteran reported that he went back and told the VA physician that there was a problem with the right eye, and the physician told the Veteran that he needed glasses. Three to four months later while at home, his eye went completely black. The Veteran obtained an appointment with a private physician who determined that he had a detached retina. The physician called Emory Hospital to get him in with a surgeon. When the Veteran arrived at the hospital, he presented them with his VA card, and an attempt was made to obtain his records from VA Medical Center Montgomery. The Veteran contends that VA Medical Center refused to release his records to Emory, and after several hours, he was informed that there was nothing they could do and that he would have to go to the VA Medical Center to get the records. The Veteran alleges that after he arrived at the Atlanta (Decatur) VA Medical Center , he was required to complete a large amount of paperwork despite the fact that he suffered from a detached retina. After completing the paperwork the appellant reported being seen by four or five doctors and told that he would have to wait three days before he could be worked into a slot as his condition was not considered a life or death emergency. Ultimately, the surgery was done but by that point the retina had become completely detached resulting in partial loss of vision in the right eye as well as double vision. VA medical records indicate that the Veteran underwent a right eye cataract extraction on June 29, 2004, and a left eye cataract extraction on August 10, 2004. The Veteran was seen in September 2004 for an ophthalmological follow up. The assessment after physical examination was myopia presbyopia and pseudophakia. Eyeglasses were prescribed. On February 16, 2005, the Veteran was seen for complaints of "film" over both eyes since cataract surgery in the summer of 2004. After physical examination, diagnoses included pseudophakia of both eyes which appeared to be stable. The VA ophthalmology resident noted that there did not appear to be any significant posterior capsular opacification, or decentration or dislocation of the intraocular lenses. On April 13, 2005, the Veteran called to say that it seemed as if there was a dark film over his right eye that was spreading and was affecting his ability to see. The Veteran reported that he had been to the eye clinic and they said that there was nothing wrong with it but that he needed glasses. The Veteran reported that there was a film growing over his eye and he was depending on his left eye to see. An appointment was scheduled for Monday, April 18, 2005. Private medical records indicate that the Veteran was seen by Dr. Hall on April 16, 2005, with complaints that his right eye looked like a curtain pulled half way across his eye and was moving further across the eye. The Veteran underwent pars plana vitrectomy with membrane pool of the right eye and sclera buckle on April 21, 2005. Compensation shall be awarded for a "qualifying additional disability" in the same manner as if such additional disability was service connected if the disability was: (a) . . . not the result of the veteran's willful misconduct and-- (1) . . . was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary . . . 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 [VA] 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 2012). Thus, to obtain benefits under 38 U.S.C.A. § 1151(a) , a claimant must show: (1) a "qualifying additional disability," (2) directly caused by the treatment furnished by VA, and (3) a proximate cause that is either the result of a fault on the part of VA or an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(d) (1) (2012). To establish that the proximate cause of a qualifying additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (2) that VA furnished the care, treatment, or examination without the Veteran's informed consent. Id. The Veteran testified in September 2012 that he had a spontaneous loss of sight in April 2005 and went to see Dr. Hall the next morning, on a Saturday, at the Clark-Holder Clinic. The Veteran reported that he then went to the VA clinic the following Monday. The Veteran was asked if he was seen by anyone on Monday to which he answered, "No, they said - well, I saw - five people told me it was retinal detachment." The Veteran also testified that were not able to get him into surgery until Thursday. The day that the Veteran went to the VA clinic would have been April 18, 2005. As noted above, the Veteran had an appointment that day that he scheduled over the telephone. However, there are no medical records associated with the claims file for that date. Thus, it is the Board's opinion that VA treatment records for the Veteran's eyes on April 18, 2005, should be obtained and associated with the claims file. It is unclear when the Veteran sought medical attention for complaints associated with his retinal detachment either from VA or from Emory Hospital. Moreover, if there was a delay by VA in providing surgical care, the current record does not explain why that delay transpired, and if the delay occurred, whether the delay represented negligence. Thus, the Veteran should be requested to complete a VA authorization for to enable VA to obtain any records from Emory Hospital on April 18, 2005 if in fact he was seen by medical personnel. Finally, the Veteran has not been provided with a VA examination. It appears that the RO had intended to schedule an examination but were waiting for private medical records. In February 2007, the Veteran was asked to complete and return an authorization form to obtain private treatment records of Dr. Hall. As such, it is the Board's opinion that the Veteran be provided an appropriate VA examination to determine whether he has any additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with the necessary authorization forms for the release of any private treatment records from Dr. Hall, and Emory Hospital in April 2005. The Veteran should also be asked to provide the approximate dates and locations of VA medical treatment for complaints associated with his retinal detachment in April 2005. These records should then be obtained and associated with the claims folder. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After the above development has been completed, the Veteran should be scheduled for a VA examination by an ophthalmologist. The claims file and access to Virtual VA must be made available to the examiner for review in connection with the examination. All indicated studies should be performed, and all findings reported in detail. The examiner must then opine whether it is at least as likely as not that the Veteran suffered additional eye disability as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical treatment providers? Is it at least as likely as not that the Veteran suffered additional eye disability as a result of any delay in providing VA surgical corrective care following the appellant's report of a detached retina in April 2005? The examiner must provide a rationale for the conclusions reached to include, as appropriate, citation to specific evidence of record and/or medical authority. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ DEREK R. BROWN 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).