Citation Nr: 1330548	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  09-37 751	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Los Angeles, California


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.

2.  Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. 
§ 1151, for residual loss of vision in the left eye resulting from 2006 and 2007 surgical treatment at a VA medical facility.


REPRESENTATION

Veteran represented by:	Paul Bradley, Agent


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel

INTRODUCTION

The Veteran had active duty service from October 1959 to August 1960.

This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, denied the Veteran's claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for residual loss of vision in the left eye resulting from 2006 and 2007 surgical treatment at a VA medical facility as well as a claim for TDIU.  In February 2009, the Veteran filed a notice of disagreement (NOD) with the denial of his claim under the provisions of 38 U.S.C.A. § 1151 as well as a claim for a TDIU.  A statement of the case (SOC) was issued in October 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. 

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the documents in such file reveals additional adjudicatory documents.

As a final preliminary matter, the Board notes that the claims file reflects that the Veteran was previously represented by James Brakewood, an Agent (as reflected in a February 2012 VA Form 21-22a, Appointment of Individual as Claimant's Representative).  In February 2013, the Veteran filed a VA Form 21-22a appointing Paul Bradley, an Agent, as his representative.  The Board recognizes the change in representation. 

The Board's decision as to the claim for a TDIU is set forth below.  The remaining claim on appeal is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran when further action, on his part, is required.




FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  As service connection has not been awarded for any disability, there is no basis for award of a TDIU.


CONCLUSION OF LAW

The claim for a TDIU due to service-connected disabilities lacks  legal merit.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

In connection with the claim for TDIU herein decided, the Veteran and his representative have been notified of the reasons for the denial of the claim, and have been afforded the opportunity to present evidence and argument with respect to the claim.  The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran.  As will be explained below, this claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).

Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

The central inquiry is 'whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.'  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Thus-notwithstanding the other regulatory requirements pertaining to the award of, or application for, a TDIU-the record clearly reflects that the Veteran has not been awarded service connection for any disability.  Furthermore, the Veteran has not alleged that service connection should be granted for any such disability(ies).

The pertinent legal authority governing entitlement to an award of TDIU (pursuant to 38 C.F.R. §§ 3.340, 3.341, 4.16) is clear and specific, and the Board is bound by such authority. As, in this case, there is no evidence or allegation that the Veteran has disability for which service connection has been awarded, the claim for TDIU must be denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 




ORDER

The claim for a TDIU is denied.


REMAND

The Board's review of the claims file reveals that further RO action in the claim for 
compensation benefits, pursuant to the provisions of 38 U.S.C.A. 
§ 1151, for residual loss of vision in the left eye, remaining on appeal is warranted.

The Veteran seeks section 1151 compensation for additional disability, namely the loss of vision in the left eye, as a result of surgeries conducted in 2006 and 2007.  Under 38 U.S.C.A. § 1151, compensation is awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected.  A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment or examination furnished under any law administered by VA, and the negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment; or (B) an event not reasonably foreseeable.  See 38 U.S.C.A. § 1151(a). 

VA treatment records document that the Veteran underwent various procedures to his left eye in November 2006, December 2006 and February 2007, after being referred to VA from a private facility.  The operative reports for these surgeries detailed the risks, benefits and alternatives to the procedures, and listed the risks of the procedures as including the loss of vision, persistent retinal detachment and the need for future surgeries.  In a February 2009 NOD, the Veteran wrote that his private physician had told him that VA performed too many operations and caused extreme trauma to his left eye, resulting in his loss of vision.

In this case, the Veteran has not been afforded a VA examination in connection with the claim for compensation benefits, pursuant under 38 U.S.C.A. § 1151.  In light of the medical evidence, the Board finds that a VA examination to obtain a medical opinion as to whether the Veteran has additional disability which was proximately caused by the 2006 and 2007 procedures would be helpful in resolving the matter on appeal.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Hence, the Veteran should be scheduled to undergo VA examination, by an appropriate physician, at a VA medical facility.  The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility.  

Prior to arranging for the Veteran to undergo a VA examination, to ensure that the record is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file.  

As for VA records, the claims file reflects that the Veteran had received treatment for his left eye disabilities from the West Los Angeles Healthcare Center and that records from that facility dated through January 2008 are associated with the file; however, more recent records may exist.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the RO should obtain all records of pertinent treatment from the West Los Angeles Healthcare Center (since January 2008) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities.   

The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A.        § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  The RO should specifically request that the Veteran furnish, or furnish an updated authorization to enable it to obtain, private treatment records from Good Samaritan Hospital (where the Veteran had undergone a procedure to his left eye prior to seeking treatment at VA) and from Dr. David Boyer (who the Veteran has generally identified as having treated him for his left eye disabilities.)
  
Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. 

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal.  The RO's adjudication of the claims should include consideration of all additional evidence added to the record since the RO's last adjudication of the claim.

Accordingly, this matter is hereby REMANDED for the following action:

1.  Obtain from the West Los Angeles Healthcare Center all outstanding, pertinent records of evaluation and/or treatment of the Veteran related to his left eye, dated since January 2008.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.  

2.  Send to the Veteran and his Agent a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record.  Specifically request that the Veteran furnish, or furnish appropriate, updated authorization to obtain, any pertinent, outstanding private records, to include any records from Good Samaritan Hospital and Dr. David Boyer.

Also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 

3.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, the Veteran should be scheduled to undergo VA examination, by an appropriate physician, at a VA medical facility.

The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. 

All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

The physician should identify all current impairment of the Veteran's left eye, to include any vision loss.  

Then, the physician should render an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran incurred additional disability as the result of the November 2006, December 2006 and/or February 2007 procedures.  If so, he or she should also opine as to whether the proximate cause of such disability was (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable.

The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report.

5.  If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.

6.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998). 

7.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority.

8.  If the benefit sought on appeal remains denied, furnish to the Veteran and his Agent an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).




______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs