Citation Nr: 1619278	
Decision Date: 05/12/16    Archive Date: 05/19/16

DOCKET NO.  11-25 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to compensation under 38 U.S.C. § 1151 for trigeminal neuralgia as a result of dental treatment at a VA facility. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1980 to May 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied entitlement to compensation under 38 U.S.C. § 1151 for trigeminal neuralgia, also claimed as temporomandibular joint (TMJ) dysfunction.

The Veteran testified at a videoconference hearing before the undersigned in June 2014, and a transcript of that hearing is of record.

In December 2014, the Board remanded the case for further development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Although the Board sincerely regrets the additional delay, another remand is required in this case.  

The claim for entitlement to compensation under 38 U.S.C. § 1151 for trigeminal neuralgia as a result of dental treatment at a VA facility must be remanded again to the AOJ due to noncompliance with remand directives articulated by the Board in December 2014.  The remand directives instructed the AOJ to obtain copies of the Veteran's complete VAMC dental treatment records, to include informed consent documentation provided to the Veteran in relation to his VAMC dental treatment.  VAMC dental treatment records were subsequently obtained, which specifically note that the Veteran signed informed consents prior to a March 2009 tooth extraction and a March 2009 mass or lump excision from the scalp.  These records note that the complete consent can be seen on VISTA.  The Board does not have access to VISTA and the claims file does not contain copies of the complete informed consent documents.  As such, there was not substantial compliance with the Board's remand directives and remand is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associated with the claims file any VA informed consent documentation provided to the Veteran in relation to his VAMC dental treatment, to specifically include any treatment that began in August or September 2008, and any treatment that began in 2009.

If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran and his representative.

2.  Re-adjudicate the appeal, and if the claim on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response.  Thereafter, return the appeal to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or 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 2014).



_________________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).