Citation Nr: 1315265 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-46 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to compensation for loss of vision under the provisions of 38 U.S.C.A. § 1151 (West 2002). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to August 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 2010, the Board denied the claim for entitlement to compensation for vision loss under 38 U.S.C.A. § 1151. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In December 2011, the Court issued a memorandum decision that set aside the June 2010 Board decision and remanded the claim. The appeal was remanded in July 2012 and February 2013 for additional development. 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 Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND On previous remand, the Board directed the RO to determine whether any VA employees participated in the Veteran's care at the Creighton UMC when he underwent a coronary artery bypass graft in June 2008, to include a finding as to whether any staff worked at both facilities. Such development was not accomplished and must be done on remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also directs the RO to inquire with the Creighton UMC if, when a VA employee is working for Creighton, they are considered to be a Creighton employee or whether they maintain their VA employee status. In other words, whether they are considered to be an agent for Creighton or an agent for the VA while on duty at Creighton. In its memorandum decision, the Court directed the Board to determine whether the VA breached the duty of care expected of a reasonable health care provider by not adequately informing the Creighton UMC of the Veteran's history of a previous head injury upon transfer for surgery. Specifically, in 1949, the Veteran sustained a football injury leaving two holes in the Veteran's skull over the middle-meningeal artery. Service records state that he had an old frontoparietal encephalomalacia. However, the June 22, 2008, admittance record to the Creighton UMC, created one day before the surgery, notes the Veteran's past surgical history to include a "history of intracranial hemorrhage as a teenager, and patient had a burr hole surgery done at that time." Therefore, it appears that the Creighton UMC did have knowledge of the previous head injury. However, in order to comply with the Court's directives, the Board finds that a VA opinion should be obtained to determine whether VA was negligent in recommending a CABG in a patient with the previous head injury and whether the VA met its duty of care when relaying the Veteran's previous history of a head injury to the Creighton UMC. Accordingly, the case is REMANDED for the following actions: (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. Contact both the VAMC and the Creighton UMC, and inquire whether VA employees participated in the Veteran's care at the Creighton UMC, to include a finding as to whether any VA staff work at both facilities. All attempts to verify this information should be documented in the claims file. 2. Contact both the VAMC and the Creighton UMC and inquire as to whether, generally, in June 2008, VA staff who worked at the Creighton UMC were considered Creighton UMC employees or VA employees. All attempts to verify this information should be documented in the claims file. 3. Contact both the VAMC and the Creighton UMC and determine whether there exists a "shared staff arrangement" between the VAMC and the Creighton UMC. If so, obtain an explanation as to the meaning of that arrangement. All attempts to verify this information should be documented in the claims file. 4. Forward the claims file to a VA examiner to obtain an opinion as to whether the VA met its duty of care with regard to the events surrounding the Veteran's June 2008 CABG. The examiner should review the claims file and note that review. The examiner should provide a clear, well-explained opinion and rationale for the questions asked. The examiner should answer the following: a) From your review of the record, including the June 22, 2008, Creighton UMC admittance record, does it appear that VA informed the Creighton UMC of the Veteran's previous head injury? b) Generally, when a patient is transferred to a contract hospital for care, such as in the Veteran's case, what records and history are typically forwarded to the contract hospital? Does it appear that such records were sent to the Creighton UMC in this instance? c) Was there carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA by recommending the Veteran undergo a CABG when the VA had knowledge of his previous head injury? d) Was there carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in the amount of information provided to the Creighton UMC regarding the previous head injury? If so, should more information have been provided to the Creighton UMC of the previous head injury, such as warnings or advice to follow special precautions regarding the Veteran's blood pressure? 5. Readjudicate the claim on appeal. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). _________________________________________________ MILO H. HAWLEY 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).