Citation Nr: A19002041 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190503-8465 DATE: October 17, 2019 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for loss of vision in the left eye due to claimed carelessness and neglect relating to attending VA personnel is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from July 1964 to June 1966. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. See May 2018 Ramp Opt-In Election Form. This matter comes before the Board of Veterans’ Appeals (Board) on appeal originally from an October 2015 legacy system rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran filed a notice of disagreement (NOD), and then opted into the RAMP program, via the Supplemental Claim lane, thereby withdrawing his active appeal. The RO issued the RAMP decision in February 2019. Then, in May 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). On the Decision Review Request Board Appeal (NOD) VA Form 10182, received in May 2019, the Veteran requested appellate review by the Board through the direct review lane. He acknowledged that direct review would entail the Board reviewing the evidence of record at the time of the prior decision, with no evidence submission or hearing requests. REASONS FOR REMAND The issue of entitlement to compensation under 38 U.S.C. § 1151 for loss of vision in the left eye due to claimed carelessness and neglect relating to attending VA personnel is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. Entitlement to compensation under 38 U.S.C. § 1151 for loss of vision in the left eye due to claimed carelessness and neglect relating to attending VA personnel is remanded. The Board finds deficiencies in the October 2015 VA medical opinion of record. The opinion focuses on the treatment and care provided by VA for the Veteran’s blurred vision of the left eye from 2012 to 2014; however, it fails to address the crux of the Veteran’s contention that he suffered additional left eye injury because of a delay in referring him to a retina specialist, as stated in his June 2015 statement. Thus, the Veteran’s theory is that VA was careless and negligent when it delayed referring him to treatment by a retina specialist for his left eye, causing additional disability. The October 2015 VA examiner did not address this theory. Thus, the Board finds that a remand for a VA addendum medical opinion in consideration of the Veteran’s lay statements and all pertinent medical evidence is necessary. Additionally, a review of the claims file reveals that there are outstanding records. The February 2019 rating decision states that medical evidence from the Valley Coastal Bend VA Medical Center (VAMC) from May 2011 through February 2019 were considered. However, these records are not included in the claims file. A review of the Veteran’s medical records shows that the most recent VA treatment records associated with the Veteran’s claims file are dated through February 2017; more recent VA treatment records have not been associated with the Veteran’s claims file. These VA records are considered part of the record on appeal since they are within VA’s constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As these records are potentially probative and are deemed to be constructively of record, and because they are not currently available, they must be obtained. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated through February 21, 2019 (the date of the rating decision on appeal). All attempts to obtain this record should be documented in the claims file. If the record is determined to be unavailable, that should be noted in the record. If the record cannot be obtained after reasonable efforts have been made, notify the Veteran and his representative. 2. After completing the above development, obtain from the VA examiner who authored the October 2015 medical opinion (or if he is not available, from another appropriately qualified clinician) to provide an addendum opinion with regard to the Veteran’s § 1151 claim. The Veteran contends that a delay in referring him to a retina specialist resulted in an additional disability to his left eye. First, the examiner is asked to determine whether the Veteran has any additional disability in his left eye following VA treatment beginning in October 2012. In other words, the examiner is asked to address the likelihood of whether any delay in referring the Veteran to a retina specialist from the time he first sought treatment for his left eye at VA in October 2012 resulted in an additional disability of the left eye. If so, was this delay in treatment an act of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA, or by an event not reasonably foreseeable, in furnishing medical care. The clinician is instructed to consider the Veteran’s competent lay statements and supporting medical evidence, including any treatment records provided by his private treating physician. 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. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.