Citation Nr: 0006437 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-10 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a fracture of the right hip in August 1991 as a result of medical treatment by the Department of Veterans Affairs. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the right face, including persistent right facial pain and tempomanibular joint syndrome as the result of surgical treatment by the Department of Veterans Affairs in May 1994. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bur hole defect of the left side of the skull or any additional cranial disability as the result of surgical treatment by the Department of Veterans Affairs in July 1994. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from December 1943 to March 1944. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in September 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The case was previously before the Board in March 1999, at which time it was Remanded to afford the veteran a hearing and a medical examination, to include obtaining certain medical opinions. The veteran subsequently withdrew his request for a hearing, and the case is once again before the Board for appellate consideration of the issues on appeal. REMAND Apart from affording the veteran an opportunity for a hearing, the Board notes that no attempt was made to substantially comply with the Board's remand, which was also intended to secure medical opinion evidence regarding the relationship of any currently shown claimed disabilities with VA medical treatment. The United States Court of Appeals for Veterans Claims (hereinafter, "Court") has underscored the role of agencies of original jurisdiction in carrying out the instructions in Board Remands. As noted by the Court, the duties of the agencies of original jurisdiction in this regard are mandatory, and, furthermore, the Board is obligated to insure compliance with the instructions in Remands. Stegall v. West, 11 Vet. App. 268 (1998). A veteran has, as a matter of law, the right to compliance with that remand, and the Board must ensure that the instructions of a remand are complied with because failure to do so would constitute error on the part of the Board. Id. Consequently, in order to ensure that the veteran is given an opportunity to appear for an examination, and to fulfill the duty to assist to the fullest extent possible, another remand is required. The Board also notes that, since the earlier Remand, additional hospitalization records from September 1998 have been associated with the claims file, which have not been considered by the RO in the evaluation of the veteran's claims. Since there is no waiver of RO review of this additional evidence, such evidence must be considered by the RO, and a supplemental statement of the case reflecting such review must be issued to the veteran. 38 C.F.R. §§ 19.31, 19.37(a) (1999). The appellant is hereby notified that it is his responsibility to report for any examination; to cooperate in the development of the case; and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (1999). Accordingly, while the Board regrets the delay, in order to assure that the evaluation of the veteran's disability is a fully informed one and that due process considerations have been fulfilled, the case is REMANDED for the following: 1. The RO should arrange for the veteran to be examined by an appropriate specialist, who should also review the veteran's medical records in the claims file prior to preparation of his/her report. The reviewer is requested to list all current diagnoses and demonstrated symptomatology associated with the veteran's right hip, right face and bur hole defect of the left side of the skull. The examiner should also offer an opinion on the following questions: (a) Whether it is at least as likely as not (a 50 percent or more likelihood) that VA-prescribed Tegretol caused the veteran to have ataxia in October 1991, when he fell and fractured his right hip; and if so, whether ataxia was certain to occur from taking Tegretol for several years; (b) whether it is at least as likely as not (a 50 percent or more likelihood) that a trigeminal vascular decompression and nerve section on the right, performed at a VA facility in May 1994, caused the veteran to have pain at the temporomandibular joint and a burning sensation of the lips, tongue, and mouth; and, if so, whether such results of the VA surgery were certain to occur; and (c) whether it is at least as likely as not (a 50 percent or more likelihood) that VA surgical evacuation of a subdural hematoma in July 1994 caused any additional disability; and, if so, whether such additional disability was either intended to occur or certain to occur as the result of the surgical procedure. 3. Upon receipt of the examination report, the RO should make sure that the questions posed above have been answered in full and, if not, return the report to the examiner for completion. Following completion of these actions, the RO should review all the evidence, including hospital records from September 1998, and determine whether the veteran's claims may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The purposes of this REMAND are to afford the veteran due process of law and to obtain clarifying medical information. By this REMAND the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice from the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).