Citation Nr: 18142946 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 14-27 752 DATE: October 17, 2018 ORDER The appeal of entitlement to compensation under 38 U.S.C. § 1151 for heart condition is dismissed. The appeal of entitlement to compensation under 38 U.S.C. § 1151 for tremors is dismissed. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of infection in the left heel is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for damage, left eye is remanded. FINDING OF FACT In March 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal on the claim of compensation under 38 U.S.C. § 1151 for a heart condition and tremors. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the substantive appeal with respect to compensation under 38 U.S.C. § 1151 for heart condition are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. 2. The criteria for the withdrawal of the substantive appeal with respect to compensation under 38 U.S.C. § 1151 for tremors are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to December 1970 and March 1974 to August 1974. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. Entitlement to compensation benefits under 38 U.S.C. § 1151 a heart condition and tremors The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In testimony before the Board in March 2018, the Veteran withdrew his claim of entitlement to compensation under 38 U.S.C. § 1151 for heart condition and tremors. Hence, there remain no allegations of errors of fact or law with respect to those issues. Accordingly, the Board does not have jurisdiction to review the appeals, and dismissal is warranted. REASONS FOR REMAND 1. Entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of infection in the left heel is remanded. The Veteran contends that he is entitled to compensation for residuals of a left heel infection under 38 U.S.C. § 1151. The Veteran asserts he developed additional disabilities of loss of sensation in his left foot and problems with balance as a result of that infection and its subsequent surgical treatment. The Veteran asserts that the initial misdiagnosis of his infection, delay in treatment, and surgery (which resulted in a cut tendon) caused these additional disabilities. VA treatment records show the Veteran was treated at the VA medical center (VAMC) in Memphis on October 28, 2011 for a complaint of left heel pain. The discharge summary shows he was treated for what was believed to be gout and discharged on October 30, 2011. The summary noted that clinically, his picture looked more like gout than cellulitis or osteomyelitis. Uric acid was 8.7, and noted to compatible with gout. In November 2011, within days of his discharge, the Veteran returned with complaints of continued left foot pain and edema. He was diagnosed with cellulitis and abscess of the left foot which eventually required surgery. In May 2012 a VA examiner opined that the Veteran’s left foot condition was at least as likely as not caused by the initial misdiagnosis in October 28, 2011. Specifically, the examiner indicated that the Veteran suffered a clear worsening and eventually necessitated surgery on the left foot due to the delay in diagnosis. However, the examiner did not explain whether the delay in diagnosis was related to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. In July 2012 a VA examiner opined that the left foot condition is at least as likely as not proximately due to or the result of the Veteran’s diabetes (a nonservice-connected disability), and diabetes impaired his immune system’s ability to fight off the foot infection. Considering the state of the record, there is insufficient medical evidence to resolve this issue and another medical opinion would be most helpful. 2. Entitlement to compensation under 38 U.S.C. § 1151 for damage, left eye is remanded. The Veteran contends that he is entitled to compensation for left eye damage under 38 U.S.C. § 1151 due to treatment for a left eye cataract and detached retina at the Hamilton Eye Clinic. The Veteran asserts he developed an additional disability of loss of vision in his left eye as a result of an injection and laser treatment due to a lack of skill of the VA providers. See March 2018 Board Hearing. Previously, the Veteran asserted the failure to diagnose and treat diabetic complications in a timely fashion led to additional disability in his left eye. See December 2011 Report of General information. VA treatment records show the Veteran received laser eye treatment in November 2009. He was found to have diabetic retinopathy and macular edema. He underwent a left eye panretinal photocoagulation in August 2010. He later underwent an injection of Avastin ® (bevacizumab) into the left eye to treat age-related macular degeneration in December 2011. At a VA examination in May 2012, the examiner concluded that there were no signs of negligence in the care of the Veteran’s left eye. The examiner noted that the Veteran’s eye treatment was complicated by treatment for his other conditions, to include a heart condition in September 2011 and left foot infection in December 2011. The examiner indicated that the ophthalmologists were aggressive in their treatment and care. However, the examiner did not specifically address the Veteran’s assertion that failure to diagnose and treat diabetic complications in a timely fashion led to additional disability in his left eye. As such, an addendum opinion should be obtained. The matter is REMANDED for the following action: 1. Ensure all pertinent Memphis VAMC and treatment records from Hamilton Eye Clinic treatment records are associated with the claim file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s left foot infection. The examiner should review the file and a copy of the remand. A physical examination is left to the examiner’s discretion. The examiner should address the following: a. Did the VA fail to properly diagnose and/or treat the Veteran’s left foot infection in October 2011? b. If so, was the delay in diagnosis of the left foot infection the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part? c. Was the loss of foot sensation and balance problems following surgery in November 2011 the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part; or due to an event not reasonably foreseeable? A complete rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s left eye disability. The examiner should review the file and a copy of the remand. A physical examination is left to the examiner’s discretion. The examiner should address the following: a) Is the Veteran’s loss of left eye vision proximately due to laser eye treatment in November 2009; or, left eye panretinal photocoagulation in August 2010; or, and/or an injection of Avastin ® (bevacizumab) into the left eye to treat age-related macular degeneration in December 2011? b) If so, was the loss of left eye vision following laser eye treatment in November 2009; left eye panretinal photocoagulation in August 2010; and/or an injection of Avastin ® (bevacizumab) into the left eye to treat age-related macular degeneration in December 2011 the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part; delay in diagnosis; or due to an event not reasonably foreseeable? In addressing this opinion, the examiner is asked to also discuss the Veteran’s assertion that failure to diagnose and treat diabetic complications in a timely fashion led to the loss of vision in his left eye. (Continued on the next page)   A complete rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel