Citation Nr: 1327471 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 06-17 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection (or compensation under 38 U.S.C.A. § 1151 based on VA surgery in July 2000) for a left eye disability manifested by a small pupil. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1966 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, the case was remanded for additional development and to satisfy notice requirements. In September 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In January 2013, the case was again remanded for additional development. In May 2009, the Board denied service connection for a left eye disability manifested by a cataract and a drooping eyelid. Consequently, this matter is no longer on appeal before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND The Veteran asserts that his left eye small pupil resulted either from a shell fragment wound near the vicinity of his left eye sustained in service in July 1968, or from VA left eye cataract surgery in July 2000. The July 2000 surgery took place at a VA Medical Center (VAMC) (Lakeside, which is no longer a VAMC) in Chicago, Illinois. In a January 2004 statement (received by VA in February 2005), the Veteran asserted that after his July 2000 left eye cataract surgery at Chicago Lakeside VAMC, he was seen at the VAMC in Salt Lake City, Utah, where his providers told him that "the eye was not set right. The pupil is off set." The Veteran alleged that his eye doctor at the Salt Lake City VAMC then tried laser surgery which did not help. In its January 2013 remand, the Board instructed the RO to secure complete copies of the clinical records of all VA treatment the Veteran had received for his claimed disability, to specifically include the informed consent forms and hospital discharge summary for the Veteran's July 2000 left eye cataract surgery, all electronic or paper (scanned) Forms SF-522 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures), and any records of treatment and laser surgery following his July 2000 surgery. If any records requested were unavailable, the reason was to be explained for the record. In June 2013, the AMC documented a telephone call with the Chicago VAMC on a VA Form 27-0820, which stated the following: "This is to certify the unavailability that there [is] no signed informed consent form and discharge summary from [the] VAMC Chicago Healthcare System." However, no formal memorandum of unavailability was ever issued to the Veteran with regard to the informed consent forms and hospital discharge summary for the Veteran's July 2000 surgery. Furthermore, the Chicago VAMC did not comment on the availability of any electronic or paper (scanned) Forms SF-522 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures) for the Veteran's July 2000 surgery. In addition, the record reflects that VA obtained treatment records from the Salt Lake City VAMC beginning in June 2001; such records do not document any laser surgery which the Veteran allegedly underwent followed his July 2000 left eye cataract surgery. Furthermore, it was noted in a June 2001 VA treatment record that the Veteran last saw an ophthalmologist in October 2000; the treatment record of such appointment is not associated with the record (the record contains the report of a follow-up visit in November 2000). The aforementioned VA treatment records would have a bearing on the instant claim (and are constructively of record); therefore they must be secured. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992); see Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). If any records requested are unavailable, the reason must be explained for the record, and the Veteran must be so notified (through a formal memorandum of unavailability). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disability which are not already associated with the record, to specifically include the informed consent forms and hospital discharge summary for the Veteran's July 2000 left eye cataract surgery, all electronic or paper (scanned) Forms SF-522 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures), and any records of treatment and laser surgery following his July 2000 surgery (including from July 2000 to June 2001). If any records requested are unavailable, the reason must be explained for the record, and the Veteran must be so notified (through a formal memorandum of unavailability). 2. The RO should ensure that all development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claim on appeal. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ GEORGE R. SENYK 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).