Citation Nr: 18145678 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 03-18 796A DATE: October 29, 2018 REMANDED The claim of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for loss of vision in the right eye due to VA surgical treatment is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from May 1966 to March 1968. By way of background, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for further development in April 2006, March 2008, October 2008, and in September 2010. In May 2012, the Board denied the Veteran’s § 1151 claim. In April 2013, the Veteran appealed the Board’s May 2012 decision of the § 1151 claim to the United States Court of Appeals for Veterans Claims (Court). In January 2014, the Court issued a Memorandum Decision, vacating the Board’s May 2012 decision of entitlement to compensation pursuant to § 1151 for loss of vision in the right eye, and remanded the matter for further consideration and instructions consistent with the Court’s opinion. Thereafter, the Board remanded the instant claim on appeal in September 2014, December 2015, and in January 2018. The issue has returned to the Board. The record reflects that the Veteran has been afforded several hearings before the Board. In September 2005, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). In July 2008, the Veteran testified at another hearing before a second VLJ. The Veteran was afforded a third hearing in February 2011 before a third VLJ. The Board notes that the VLJ who conducted the September 2005 hearing retired from the Board. Accordingly, pursuant to 38 C.F.R. § 20.707, a letter was sent to the Veteran in November 2011, offering him the opportunity to testify at a hearing before another VLJ who would participate in the panel decision. In December 2011, the Veteran waived his right to appear at an additional hearing before the Board. As the VLJ who conducted the second hearing in July 2008 also retired from the Board, the Veteran was provided another letter in August 2014, which offered him the opportunity to testify at another Board hearing. In September 2014, the Veteran waived his right to appear at another hearing before the Board. Similarly, the VLJ who conducted the third hearing retired from the Board; thus, the Veteran was provided a letter in November 2017, offering him the opportunity to testify at another Board hearing. No response was received from the Veteran, and as such, it is determined that he does not desire an additional hearing. While the record reflects that the Veteran did not respond to the November 2017 letter, the Veteran was most recently afforded a hearing before the undersigned VLJ in August 2018. A transcript of the hearing has been associated with the Veteran’s electronic claims file. As a final matter, the Board notes that prior to his current representation, the Veteran was represented by the Disabled American Veterans (DAV). The Department of Veterans Affairs (VA) received a signed VA Form 21-22a in August 2018, changing representation from the DAV to Attorney John E. Tuthill.   REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran believes that he should be compensated for the additional vision loss in his right eye as a result of treatment provided by VA. Throughout the period on appeal, the Veteran has indicated that he presented for follow-up treatment for a left eye condition, and during that appointment, the VA doctor determined that he needed immediate surgery for a right eye condition. The record reflects that the Veteran underwent surgery to the right eye in October 1998. The Veteran asserts that following the October 1998 surgery, he underwent several other procedures with VA for the right eye. The Veteran asserts that following the October 1998 surgery and subsequent treatment, his vision worsened to the point of blindness in the right eye. The Veteran asserts that he never signed a consent form for the October 1998 surgery. However, the record includes a consent form for the October 1998 right eye surgery signed by the Veteran on September 1998. See September 1998 consent form. The Board notes that in June 2017, the Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case, which noted that signed consent forms dated October 21, 1998, and October 22, 1998, were also reviewed; thus, the record reflects that additional consent forms exist. After a review of the claims file, the Board finds that the consent forms dated October 21, 1998, and October 22, 1998, have not been associated with the claims file. Accordingly, in the January 2018 remand, the Board requested the local Regional Office (RO) to make all necessary attempts to locate these consent forms. In February 2018, the RO made two separate requests for the informed consent forms. The RO was notified that the informed consent forms sought were located at the Bay Pines VA Medical Center (VAMC). In an August 2018 correspondence, the RO was informed that the Bay Pines VAMC was in receipt of the RO’s record request, and that additional time was needed to complete the processing of the request. The record does not reflect that the RO has received the requested informed consent forms from the Bay Pines VAMC. Furthermore, the record does not reflect that the RO has received a status update of its pending request from the Bay Pines VAMC. Thus, on remand, the RO should follow-up with the Bay Pines VAMC as to the status of the pending request for the informed consent forms. If a negative response is received, the RO should associate with the record a formal finding of unavailability. Additionally, during the August 2018 hearing, the Veteran indicated that he received private medical treatment from a Dr. G. from St. Luke’s. The Veteran testified that he was advised by Dr. G. that nothing could be done to fix the damage done to his right eye by the treatment received from VA. The Board notes that private medical records from St. Luke’s have been associated with the Veteran’s claims file; however, treatment records from Dr. G. do not appear to be included. During the hearing, the Veteran’s representative indicated that he would submit these records with the claims file. It does not appear that these records have been submitted. As these medical records are potentially relevant ot the instant issue on appeal, the RO must take all appropriate action to locate and obtain these outstanding records. The Veteran is invited to provide these records himself. The Board finds that in light of the outstanding informed consent forms and the forthcoming medical evidence, a new VA examination for the issue on appeal is warranted. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran’s claims folder). Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically the private medical records from Dr. G. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Contact the Bay Pines VAMC and inquire as to the status of the pending record request for the informed consent forms from October 1998. The Board notes that an August 2018 letter from the Bay Pines VAMC indicates that additional time was needed to complete the processing of the record request. No further correspondence has been received from the Bay Pines VAMC. If all attempts to locate the informed consent forms from October 1998 are unsuccessful, the RO should associate with the record a formal finding of unavailability. 3. After obtaining any outstanding records, schedule the Veteran for an examination by an ophthalmologist. The examiner must review the claims file and all previous VA examination reports. The examination report should also show consideration of the Veteran’s documented medical history and assertions/complaints. All indicated studies, should be completed, and all clinical findings reported in detail. The examiner is requested to provide an opinion addressing the following: (a) Identify all pathology of the Veteran’s right eye. (b) For all identified right eye pathology, the examiner should provide an opinion as to whether it was proximately related to VA surgical treatment in October 1998. (c) If the answer to subpart (b) is positive, the examiner should provide an opinion as to: 1) Whether any diagnosed condition of the right eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or 2) If there was no fault on the part of VA, whether any identified right eye condition was due to an event not reasonably foreseeable. 4. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel