Citation Nr: 1412983 Decision Date: 03/27/14 Archive Date: 04/08/14 DOCKET NO. 10-35 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a right eye disability. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for loss of teeth. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of bilateral brow lift surgery. 4. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for nerve damage. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for an anxiety disorder. 7. Entitlement to service connection for a depressive disorder. 8. Entitlement to service connection for a left eye disability, to include blindness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from December 1971 to March 1973 and from December 1974 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. As to the Veteran's left eye claim, an August 2001 rating decision erroneously considered the claim a request to reopen a finally adjudicated claim and denied the claim on the basis of the failure to submit new and material evidence. In a subsequent April 2008 rating decision, the RO found the basis for the August 2001 rating decision denial to be erroneous and adjudicated the matter as an original claim, denying the claim based on the absence of any link between the current left eye disability and military service. Thereafter, the Veteran submitted a May 2008 Application for Compensation and/or Pension, asserting left eye blindness from 1971. The RO treated this submission as a new claim for benefits. In context, however, such a submission clearly could be construed as a notice of disagreement with the RO's April 2008 denial of entitlement to service connection for the same condition. Affording the Veteran the benefit of the doubt, the Board will consider the left eye appeal to stem from the April 2008 rating decision. Finally, the Board notes that the March 2012 Supplemental Statement of the Case (SSOC) erroneously listed the left eye issue as stemming from a claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veteran's Benefits Management System (VBMS) systems to ensure review of the totality of the evidence. The issues of entitlement to service connection for a left eye disability, PTSD, anxiety, and depression are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In March 2008, the Veteran was seen by Drs. C.E.B. and S.K. at VA for eye problems and diagnosed with bilateral eyebrow ptosis and mechanical entropion. 2. Thereafter, Dr. C.E.B. referred the Veteran to the Ohio State University Medical Center and Dr. S.K. for the bilateral eyebrow ptosis and mechanical entropion and, specifically, for a bilateral direct brow lift. 3. In April 2008, the Veteran underwent a bilateral direct brow lift at the Ohio State University Medical Center. 4. As a result of this procedure, the Veteran has experienced numerous problems, including nerve pain, loss of teeth, and increased vision problems in the right eye. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a right eye disability as a result of VA medical treatment have not been met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §§ 3.361 (2013). 2. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for loss of teeth as a result of VA medical treatment have not been met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §§ 3.361 (2013). 3. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of bilateral brow lift surgery as a result of VA medical treatment have not been met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §§ 3.361 (2013). 4. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for nerve damage as a result of VA medical treatment have not been met. 38 U.S.C.A. §§ 1151 (West 2002); 38 C.F.R. §§ 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's section 1151 claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in March 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. As discussed in greater detail below, the Veteran's service connection claims are being remanded to attempt to obtain private treatment records regarding the Veteran's "blindness" from a Dr. R. By contrast, the Veteran's section 1151 claims are not affected by these records, as the claims are denied as a matter of law and additional private treatment records would in no way alter the outcome of these claims. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). As will be discussed in greater detail below, the Veteran's section 1151 claims are denied because the April 2008 bilateral direct brow lifts were conducted at a non-VA hospital and by a physician not acting in his capacity as a VA employee, following a referral of his case by VA to that facility. Entitlement to compensation under the provisions of section 1151 is not warranted in such a situation. As such, a VA examination or medical opinion would serve no useful purpose. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Section 1151 Claims As noted above, the Veteran contends that he has current right eye problems, loss of teeth, nerve damage, and other residuals of an April 2008 bilateral direct brow lift performed at the Ohio State University Medical Center. Essentially, the Veteran questions why such a surgery was performed, particularly with respect to the left eyebrow, because he was already blind in the left eye and such surgery had no chance of improving his vision out of that eye. As an initial matter, compensation pursuant to 38 U.S.C.A. § 1151 is only warranted for treatment under the laws administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title. 38 U.S.C.A. § 1151(a)(1) (West 2002). A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. 38 C.F.R. § 3.361(e)(1) (2013). A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e)(2). Activities that are not hospital care, medical or surgical treatment or examination by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. 38 C.F.R. § 3.361(f) (2013). In this case, the Veteran was afforded a VA examination for his claim for entitlement to service connection for a left eye disability in March 2008. As a result of his findings, the VA examiner sent the Veteran for a consult with Dr. S.K., who the examiner specifically noted to be a VA employee. The following day, the Veteran was seen at a VA medical facility. The treatment record was signed by Dr. C.E.B. and co-signed by Dr. S.K. At that time, the Veteran's chief complaint was bilateral droopy eyes and that he felt like he needed to lift his eyelid in order to see out of the eye. The problem was getting progressively worse. Following examination, the listed diagnoses included bilateral brow ptosis with mechanical entropion. The plan included sending the Veteran to the Ohio State University for a bilateral brow lift. That day, Dr. C.E.B. entered an order for a consult request for a "NON-VA REFERRAL EYE OCULOPLASTIC" from the Ohio State University Medical Center and Dr. S.K. The Veteran's problem was noted to be bilateral brow ptosis and mechanical entropion and the specific question to be addressed was a bilateral direct brow lift. The service was to be rendered at the place of the consultant's choice. An April 2008 operation report from the Ohio State University Medical Center indicated that Dr. S.K. performed a bilateral direct brow lift. The operation report also indicated that, "After a lengthy discussion of the risks and benefits, [the Veteran] opted to move forward with bilateral direct brow lift" and that the Veteran provided "appropriate informed consent." Subsequent treatment records document numerous problems potentially related to the April 2008 surgery, including decreased right eye visual acuity, numerous lost teeth, and significant facial nerve pain. Based on the foregoing, the Board finds that the record presents no basis for the award of compensation benefits, pursuant to 38 U.S.C.A. § 1151, for claimed additional disability as a result of the April 2008 bilateral eyebrow surgery. Fundamentally, the governing statute clearly provides that the benefits sought are available only for additional disability resulting from VA hospital care, VA medical or surgical treatment, or examination. In this case, the Veteran's April 2008 surgery was performed at a non-VA facility, the Ohio State University Medical Center. The Veteran correctly points out that Dr. S.K. is a VA employee; however, the record also demonstrates that he is an employee of the Ohio State University Medical Center. In this case, it is clear that Dr. S.K. was not functioning in his capacity as a VA employee at the time of the surgery, as the March 2008 VA record clearly evidences that the matter was referred by VA to an outside medical facility and Dr. S.K. for the purpose of performing the brow lift surgery. Moreover, the Veteran has not contended and the evidence does not otherwise suggest that VA has any jurisdiction over the Ohio State University Medical Center, or that the facility is otherwise a "facility of the Department" as that term is defined by statute. The legal authority governing claims for compensation benefits under 38 U.S.C.A. § 1151 is clear and specific, and the Board is bound by such authority. Here, the surgery that the Veteran claims caused additional right eye, teeth, and nerve disability was conducted by a physician not acting as a VA employee and occurred at a private facility not under the jurisdiction or purview of VA. Thus, the claimed additional right eye, teeth, nerve, and any other associated disability did not arise in connection with any VA hospital care, VA medical or surgical treatment, or examination. On these facts, there is no legal basis for award of the benefits sought and the Veteran's claims must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a right eye disability is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for loss of teeth is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of bilateral brow lift surgery is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for nerve damage is denied. REMAND The Veteran also is seeking entitlement to service connection for a left eye disability, as well as for PTSD, anxiety, and depression. The Board finds that additional development is required prior to the adjudication of these claims. In that regard, in May 2008 the Veteran submitted a VA Form 21-4142 "Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)." Specifically, the Veteran noted private treatment for "Blindness" from a "Dr. Richards." The form included an address at which to contact Dr. Richards. It does not appear from the record that the RO sought these records. On remand, the opportunity must be taken to obtain and associate with the claims file VA treatment records from March 2012 to the present. Consideration of the Veteran's claim for entitlement to service connection for PTSD, anxiety, and depression remain deferred pending resolution of the Veteran's claim for service connection for his left eye. In that regard, the Veteran has contended that his psychiatric problems were caused in whole or in part by his left eye blindness and overall vision problems and, as such, the claims are inextricably intertwined with the left eye claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate treatment records from all VA medical facilities from March 2012 to the present. 2. Request records from Dr. Roberts in Columbus, Ohio, as identified in the May 2008 authorization. If current authorization is needed, this should be requested from the Veteran. All records obtained or any response received should be associated with the claims file. 3. After the above is complete, readjudicate the claims. If a complete grant of all benefits requested is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters 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. 2013). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs