Citation Nr: 1320118 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-26 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for postoperative residuals of a detached right retina. REPRESENTATION Veteran represented by: Lauren Murphy, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from July 1965 to October 1965 and from January 1971 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In February 2009, the Veteran presented testimony relevant to the appeal before a Decision Review Officer (DRO) at a hearing held at the RO. A transcript of the hearing is associated with the record. This case was previously before the Board in July 2010 and was remanded for issuance of corrective notice and further evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has contended that he is entitled to § 1151 compensation benefits on the basis that his VA primary care physician at the Dallas VA Medical Center (VAMC) did not refer him to an eye specialist for a thorough evaluation of his complaint of deteriorating vision in the right eye for a period of four years and, as a result, his detached retina went undiagnosed and untreated during that time. The Veteran asserts that VA's failure to timely diagnose the right eye retinal detachment contributed to the severity of the condition and resulted in the blindness to the right eye. The Board notes that the Veteran's agent, in a September 2011 letter, wrote that the Veteran first sought treatment in 2002 for vision loss in the right eye from his VA primary care provider, and complained at least six times to the primary care provider of increasing vision loss of the right eye during the period from 2002 to 2006. While there are some treatment records reflecting the Veteran's primary care treatment from 2003 to 2007, it is not clear whether all records pertinent to the Veteran's complaint and treatment for right eye problems during the period have been obtained. Additionally, there are no treatment records dated from 2002 pertaining to the Veteran's primary care treatment through VA included in the record; therefore, a remand is warranted in order to obtain all outstanding VA treatment records from 2002 to 2007 pertaining to the Veteran's primary care treatment and/or complaint of right eye problems at the Dallas VAMC and, thereafter, obtain a supplemental VA medical opinion based on review of the additional records. The Board further notes that the Veteran submitted a VA Form 21-22 in September 2011 appointing Lauren Murphy of the Alpha Veterans Disability Advocates as his accredited agent to represent him in the matter on appeal. The form was submitted while the case was in remand status. Although an employee of the AMC noted that the new power of attorney had not been received in a timely manner in accordance with § 20.1304, the Board finds that the change in representation was proper. The Veteran has the right to change his representation while the case is in remand status despite the prior certification and transfer of the case to the Board. See generally Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's agent has not been provided with a copy of the August 2012 Supplemental Statement of the Case; therefore, a copy should be mailed to the agent on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding treatment records pertaining to the Veteran's primary care treatment and/or complaints of right eye problems from January 2002 to August 2007 at the Dallas VA Medical Center in Dallas, Texas. Once obtained, the treatment records should be associated with the record. All negative responses should be properly documented in the record, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e). 2. After any additional records are associated with the record, obtain a VA medical opinion by an ophthalmologist. A medical examination is not necessary unless needed to provide the requested opinion. All relevant documents must be made available to and reviewed by the reviewer in rendering the opinion. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, the reviewer must explain why an opinion cannot be provided to include a full rationale for that conclusion. The reviewer must answer the following questions: (a) Was there a failure to timely diagnose and properly evaluate and treat the Veteran's right eye retinal detachment which proximately or directly caused the continuance or natural progress of the right eye vision loss? (b) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider from 2002 to 2007, to include a failure to evaluate the Veteran's right eye complaints and provide timely diagnosis of and proper and timely evaluation and treatment of retinal detachment? (c) Was the Veteran's additional right eye disability caused by (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (ii) an event which is not reasonably foreseeable? 3. A copy of the August 2012 Supplemental Statement of the Case should be mailed to the Veteran's properly appointed agent, Lauren Murphy of the Alpha Veterans Disabilities Advocates. The Veteran should be carbon-copied on the correspondence. 4. After any additional notification and/or development deemed necessary is undertaken, the Veteran's § 1151 claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and the agent should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and the agent. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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 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). _________________________________________________ K. J. ALIBRANDO 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).