Citation Nr: 1312148 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 11-31 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of trabeculectomy surgery on October 4, 2005. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim. the Veteran filed a notice of disagreement dated in November 2009, and the RO issued statement of the case dated in September 2011. The Veteran filed a substantive appeal in October 2011, in which he requested the opportunity to testify at a hearing before a Veterans Law Judge at the local VA office. In January 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's virtual claims file. In this regard, the Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, the Board notes that there appears to be relevant records missing from the Veteran's claims file. In this regard, the Board notes that the Veteran was afforded two VA medical opinions in connection with the claim, dated in August 2009 and June 2011. In these reports, each examiner noted the presence of an informed consent document in connection with the October 2005 surgery. This document has not been associated with the Veteran's claims file. In addition, the August 2009 examination noted that the Veteran had had cataract surgery with intraocular lens implant and combined with filtering surgery at a non-VA facility in April 2001. This record is also not part of the Veteran's record. Upon remand these records would be associated with the Veteran's claims file. The Veteran should also be afforded an opportunity to submit additional medical evidence in connection with his claim. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). 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. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him for his claimed disability. This should specifically include the informed consent document in connection with the October 2005 surgery and records related to April 2001 cataract surgery with intraocular lens implant and combined with filtering surgery at a non-VA facility. VA treatment records should also be updated. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). _________________________________________________ J. MARKEY 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).