Citation Nr: 1329002 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-10 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to 38 U.S.C.A. § 1151 compensation for brain damage, memory loss, and depression due to brain surgery at the Jackson VAMC in June 1995. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION 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). In July 2007 the Veteran filed a claim for 38 U.S.C.A. § 1151 compensation for the additional disability of subdural hematoma after surgery, including a right cortical mastoidectomy, at the Biloxi VAMC on February 3, 1995. That issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Veteran had active service from December 1961 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a decision in September 2011, the Board denied both claims. This was appealed. In a Memorandum Decision dated December 19, 2012, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's September 2011 decision and remanded the matter for further development. In June 2013 the Board remanded the matter for action pursuant to the Court's instructions. Unfortunately, further evidentiary development is needed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In the memorandum decision from the Court, the Board was instructed to attempt to obtain documentation of evidence, referenced by the Veteran's daughter in a September 2007 statement, that a physician had advised the claimed disabilities were due to the June 1995 surgery. Subsequent to the Board's June 2013 remand directives, the Veteran identified this person as a VA physician. On review of the claims file, it appears that this physician was the Veteran's provider during inpatient care from February 3, 1995, through February 16, 1995. The record also contains the report of a June-July 1995 neuropsychological evaluation, apparently done by a private psychologist and a private neuropsychologist on request from this physician, which relates diagnoses of "dementia due to subdural hematoma, mood disorder due to subdural hematoma with depressive features, and status post subdural hematoma; and which includes the physicians' recommendation that as per the VA physician's "suggestion, [the Veteran] should not be employed as a truck driver, particularly given his deficits in hearing, memory, and attention/concentration." Unfortunately, it does not appear that all medical records authored by this VA physician after February 16, 1995, are in the claims file, or that all relevant records leading up to the June 1995 surgery have been obtained. They should be sought. Thus, all of the Veteran's VA medical records, including clerical/administrative records, dating from February 1, 2005, to May 30, 1995; should be associated with the claims file. 38 C.F.R. § 3.159(c)(2). Again, because the outcome of the TDIU claim could turn on the outcome of the claim for compensation under section 1151, a decision on the TDIU claim is deferred. 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. Associate with the file, all of the Veteran's VA medical records dating from February 1, 1995, to May 30, 1995, including from the Jackson VAMC, and the Biloxi VAMC. This should particularly include all medical records authored by the VA physician identified in the Veteran's July 19, 2013 statement during this timeframe; and all tele-health records, radiology records, and the records pertaining to planned surgeries, during this timeframe. 2. After completion of all of the above, re-adjudicate the claim for Section 1151 compensation, and the claim for TDIU based on the entirety of the evidence. If either claim remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board, after according the Veteran an appropriate amount of time for response. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ MICHAEL E. KILCOYNE 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).