Citation Nr: 1325143 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-05 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder. 2. Entitlement to an effective date earlier than September 24, 2007 for the grant of compensation under the provisions of 38 U.S.C.A. § 1151 for major depressive disorder with psychotic features. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2008 and October 2012 rating decisions. In the January 2008 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, the RO denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for nerve fiber layer retinal infarcts/hypoperfusion/anemic optic neuropathy and residuals of stage III colon cancer surgery with disfigurement. In July 2010, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. During the pendency of the appeal, the case was transferred to the jurisdiction of the RO in Waco, Texas. In December 2010, the Waco RO granted compensation for loss of abdominal domain with ventral hernia, residual of left hemicolectomy, under the provisions of 38 U.S.C.A. § 1151, representing a full grant of the benefit sought with respect to that claim. The RO also granted compensation for major depressive disorder with psychotic features under the provisions of 38 U.S.C.A. § 1151 and assigned a 50 percent rating, effective July 6, 2010. The Veteran disagreed with the effective date of the grant of compensation for his psychiatric disorder. In an October 2012 rating decision, the RO granted an earlier effective date of September 24, 2007 for compensation for major depressive disorder with psychotic features. The RO indicated that the grant of this earlier effective date represented a full grant of the benefit sought; however, the Board finds that an even earlier effective date may still be warranted and, therefore, this claim is being remanded below for issuance of a statement of the case (SOC). The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the RO in the most recent supplemental statement of the case (SSOC) regarding the claim for compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder. Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. In June 2010, the Veteran filed a claim for transportation reimbursement for travel to the Temple VA Medical Center (VAMC). The issue of entitlement to transportation reimbursement for travel to the Temple VAMC has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. 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 The Veteran has been afforded two VA examinations in conjunction with his claim for compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder. However, as neither examination includes a medical opinion addressing all of the points necessary to adjudicate the claim, a supplemental medical opinion is necessary. Remand of this claim is also required to obtain outstanding evidence and to ensure compliance with VA's duty to notify the Veteran of what evidence would substantiate the claim, as identified below. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran and his representative an SOC as regards the claim for an effective date earlier than September 24, 2007 for the grant of compensation under the provisions of 38 U.S.C.A. § 1151 for major depressive disorder with psychotic features, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue. In preparing to issue the SOC, the AMC/RO must consider whether an effective date earlier than September 24, 2007 for the grant of compensation may be warranted pursuant to 38 C.F.R. § 3.400(i), as the claim for mental anguish related to the Veteran's April 2007 surgery and resultant disfigurement was filed within one year of the surgery. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here entitlement to an effective date earlier than September 24, 2007 for the grant of compensation under the provisions of 38 U.S.C.A. § 1151 for major depressive disorder with psychotic features -a timely appeal must be perfected within 60 days of the issuance of the SOC. 2. Provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder. 3. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his eye disorder. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) records from an optometrist who evaluated the Veteran for "angle closure" (as identified during VA treatment in May 2007) and (2) records from the Central Texas Veterans Health Care System, dated since December 2012. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 4. Obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits pertinent to the claim on appeal, as well as copies of all medical records underlying those determinations. 5. After all available records have been associated with the claims file, forward the claims file to the physician that conducted the September 2010 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The purpose of this additional opinion is to ascertain whether the Veteran has an eye disorder which is due to VA treatment in May 2006, and whether such disorder was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or, whether the eye disorder was the result of an event not reasonably foreseeable. a. The examiner is advised: i. The Veteran underwent coronary artery bypass graft (CABG) surgery on May 5, 2006 at the Houston VAMC. He remained hospitalized until May 19, 2006. A post-operative note from the date of surgery reflects that "CO and pressure" were OK and hemoglobin was stable. ii. The Veteran has asserted, as he is competent to do, that he started noticing that his vision was very blurry and he was seeing spots with empty spaces after his May 2006 CABG. iii. The Veteran asserted in a June 2006 statement that he told his doctors and nurses about what he was seeing, and they seemed concerned, but nothing was done. He added that his doctors and nurses later told him that a blood transfusion was needed, but he did not receive the transfusion until several days later. The Veteran argues that he should have been given a blood transfusion earlier. For example, during the July 2010 hearing, he testified that he was very anemic following the CABG, but did not receive a transfusion until seven days later. He also argued, in a May 2007 statement, that he has an eye disorder as a result of his blood pressure dropping too low during his May 2006 CABG. iv. Laboratory testing from May 6, 7, 8, 9, 10, and 11, 2006 reveals low red blood cell count, hemoglobin, and hematocrit. A May 11, 2006 inpatient note reflects that the Veteran had low hemoglobin and hematocrit. He was to be rechecked in the morning, at which time he would possibly have a blood transfusion. v. On May 12, 2006, the Veteran had a blood transfusion. vi. On May 14, 2006, the Veteran reported that he was having visual problems and could only see shadows. The following day, he reported that he had blurred vision, which he believed was related to pain medication. On May 16, 2006, he reported blurry and blotchy vision that began two days earlier. Another record from that day reflects that the Veteran complained of black floaters in both eyes for one week, which he noticed after the CABG surgery. vii. On May 24, 2006, a physician's assistant indicated that the Veteran had post-operative nerve fiber layer infarcts in both eyes, which was most likely secondary to hypoperfusion during the CABG. viii. A June 2006 VA treatment record includes an assessment of anemic/hypoperfusion induced ischemic optic neuropathy in both eyes with inferonasal visual field defect. The ophthalmologist indicated that the visual field defect was going to be permanent. ix. A September 2007 VA eye examination report states that visual field testing from that day and from June 2006 suggested that the Veteran had some type of nerve fiber layer retinal infarcts/hypoperfusion/anemic optic neuropathy to both eyes that occurred in the postoperative CABG period when he had low hemoglobin. Later that month, another physician examined the Veteran. This physician reported that he reviewed the Veteran's MRI of the brain and there are no compressive lesions. He added that the Veteran felt his vision had been stable. On examination, pupils were brisk and the optic nerves appeared normal. The physician commented that the Veteran's visual field defects were not from optic neuropathy. x. A February 2008 VA eye treatment record indicates that the Veteran had bilateral nasal visual field loss, of unclear etiology, but temporally related to his CABG. xi. The assessment following VA eye clinic treatment in September 2012 included a history of extensive cotton wool spots in each eye and pallor of both optic nerves. Eye examination showed a stable and normal nerve fiber layer in each eye. Visual field testing showed superior and inferior nasal defects in each eye, which are also unchanged compared to previous testing. Bilateral cataracts were also noted. b. After a review of the entire evidence of record, the examiner must answer the following questions: i. Given that additional evidence may be associated with the claims file and/or e-folder as a result of this remand, from the issuance of your September 2010 opinion to the present, has your opinion that the Veteran has severe binasal visual field loss to both eyes which is the result of an ischemic episode during or after CABG surgery in May 2006 changed? Please explain fully. If this opinion has changed, please address whether the Veteran has had an eye disorder at any time since his May 2006 CABG which was the result of VA treatment. ii. Is any eye disorder which resulted from VA treatment in May 2006 due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? The examiner MUST consider and address the Veteran's assertions that his blood pressure dropped too low during his May 2006 surgery and that he should have been given a blood transfusion earlier than seven days after this procedure. The examiner must address whether the Veteran's healthcare providers exercised the degree of care that would be expected of a reasonable healthcare provider. iii. Is any eye disorder which resulted from VA treatment in May 2006 a reasonably foreseeable result of the CABG? That is, would a reasonable health care provider have considered the eye disorder to be an ordinary risk of the treatment? An explanation MUST be provided for EACH opinion or conclusion expressed. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinions. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete explanation for all opinions expressed, should be set forth in the examination report. 6. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied the Veteran and his representative should be provided an SSOC. An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Vito A. Clementi 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).