Citation Nr: 1819909 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-17 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for right eye injury and difficulty retaining right eye prosthesis resulting in surgery. ATTORNEY FOR THE BOARD T. Matta, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1953 to December 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In his April 2014 substantive appeal, the Veteran requested a Travel Board hearing; in March 2018 correspondence, he withdrew his request for a hearing. There are two appeals currently before the Board that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will adjudicate all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). The issues of entitlement to compensation under 38 U.S.C. § 1151 for right eye injury and difficulty retaining right eye prosthesis resulting in surgery will be addressed in this decision. The issues of entitlement to service connection for hepatitis, hypertension, and vision loss, to include bilateral contacts, will be addressed in a separate decision (as the Veteran is unrepresented in this matter, but is represented by a private attorney in the other matters). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND While further delay is regrettable, the Board concludes that additional evidentiary and procedural development is necessary prior to adjudication. The Board specifically notes that the medical evidence associated with the record is incomplete. Particularly, although this issue stems from multiple surgeries resulting from a right eye injury and subsequent difficulty retaining a right eye prosthesis, the complete informed consent forms are not of record. Additionally, a September 2011 VA treatment record noted that the Veteran saw a doctor in New Jersey for an eye prosthesis; to date, those records have not been requested. Additionally, the most recent VA treatment records associated with the record are from October 2014, more than three years ago. As VA and/or private treatment records are likely to contain pertinent information (and VA treatment records are constructively of record), they must be obtained. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to identify the provider(s) of all evaluations and treatment for his right eye (records of which are not already associated with the claims file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation, to specifically include medical authorizations for the physician he saw in New Jersey for an eye prosthesis. 2. Obtain and associate with the file all records and informed consent forms completed in connection with the Veteran's right eye surgeries, and all records of VA treatment related to his right eye surgeries (i.e., update to the present all records of VA evaluations and treatment for his right eye from all VAMCs). 3. Thereafter, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to assess any additional disabilities related to his right eye surgeries in April 2007, February 2008, January 2009, and December 2009. The entire file, including a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should specifically address the following questions: a. Does the Veteran have any additional disability that was caused by hospital care, medical or surgical treatment, or examination either by a VA employee or in a VA facility pursuant to his April 2007, February 2008, January 2009, and December 2009 right eye surgeries and subsequent treatment? The Board notes that the VA examiner should evaluate whether the Veteran has, or had, an additional disability at any time during the pendency of the issue on appeal following the right eye surgeries. IF AND ONLY IF THE VETERAN HAS AN ADDITIONAL DISABILITY, THE VA EXAMINER SHOULD ANSWER THE FOLLOWING QUESTIONS: b. Is it at least as likely as not (a 50 percent probability or higher) that any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment? c. If the Veteran incurred an additional disability as a result of VA medical care, but such disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not (a 50 percent probability or higher) the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the additional disability to be an ordinary risk of the Veteran's right eye surgeries. The examiner should discuss the pertinent evidence of record, to include the Veteran's assertions that his prosthesis implants have not functioned or remained in place due to unsuccessful VA procedures/surgeries. If the examiner cannot provide any opinion without resorting to speculation, the examiner must explain why that is so, sufficiently explaining the reasons for that inability. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. 4. The AOJ should then review the record and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252. This remand is a preliminary order and not an appealable decision. 38 C.F.R. § 20.1100(b) (2017).