Citation Nr: 1314624 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-21 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of cataract surgery, right eye. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from June 1965 to July 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. In March 2011, the Veteran testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. During that hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. In January 2013, the Board requested an expert medical opinion from an ophthalmologist at the Veterans Health Administration (VHA) regarding the Veteran's Section 1151 claim. In February 2013, Dr. B.R.S., Acting Chief, ophthalmology section submitted a VHA opinion. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After review of the record, to include the supplementary opinion obtained from VHA during the appeal process, it has been determined that further evidentiary development is necessary before the Board can adjudicate the Veteran's 1151 claim. As an initial matter, the Board finds that outstanding VA treatment records should be obtained. In denying the Veteran's claim, in the April 2010 Statement of the Case, the RO indicated that it had reviewed treatment records from the Bay Pines, Florida VA Medical Center (VAMC) dated from June 2007 to March 2010 and the Miami, Florida VAMC dated from February 2006 to February 2009. However, a review of the paper claims file, as well as a search of the Veteran's Virtual VA electronic claims file, shows that the most recent records from the Bay Pines and Miami VAMC are dated in March and June 2008, respectively. Moreover, none of the Veteran's VA treatment records have been associated with his electronic file. Thus, the Veteran's outstanding VA treatment records should be must be secured on remand. See 38 C.F.R. § 3.159(c) (2), (c)(3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Next, in statements submitted in support of his claim and testimony before the Board, the Veteran reiterated his assertion that his current residuals of cataract surgery of the right eye, including a retinal hole and decreased visual acuity are a result of VA surgical procedures performed in December 2006. With regard to the issue of whether the Veteran's currently diagnosed visual disorders of the right eye, including retina abnormalities, in February 2013, Dr. B.R.S. opined that is not likely that they were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination. He also opined that the formation of the Veteran's retinal hole was an event that was not reasonably foreseeable prior to December 6, 2006 and that there is no evidence to determine that a retinal and/or macular hole may have existed prior to the surgical procedure on December 6, 2006. Therefore, it is unlikely that a preexisting eye disorder was aggravated as a result of the surgical procedure. With regard to the issue of whether any current decrease in the Veteran's visual acuity was the result of either surgical procedure performed by VA in December 2006, Dr. B.R.S. opined that it is not possible to determine if a current decrease in visual acuity was the result of one or both surgical procedures without resorting to speculation. He noted that during the postoperative examination in April 2007, diabetic retinopathy was documented which is an independent disease process that was not the result of either surgical procedure. Dr. B.R.S. also that the procedures performed on December 6 and 12, 2006 are both associated with the increased risk of cystoids macular edema, which can result in long term reduction of visual acuity even after resolution of the macular edema or other maculopathy as a direct result of one or both of the surgical procedures. However, this was not supported by the records and is therefore both speculative and unlikely. While it is clear that the VHA expert was attempting to comply with the Board's request, the evidentiary record remains essentially the same as it was before the requested opinion. Specifically, it remains unclear whether the Veteran sustained additional disability, to specifically include decreased visual acuity, as a result of either surgical procedure performed by VA on December 6 or December 12, 2006. Thus, the Board is unable to render a fully informed decision based thereon without all the available evidence assembled and evaluated. Therefore, while the Board regrets any additional delay in the adjudication of this claim, a remand is necessary to obtain an examination and clarifying opinion as to whether the Veteran's loss of visual acuity was due to either procedure performed by VA in December 2006. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA outpatient treatment records for the period since March 2008 from the Miami and Bay Pines, Florida VAMCs. If such records do not exist or are otherwise not available after reasonable efforts, such circumstances shall be fully documented in the claims file. 2. After obtaining the above records, the Veteran should be scheduled for VA examination to be conducted by an ophthalmologist or other appropriate examiner. Review of the entire claims file must be accomplished. The specialist is requested to address the following: (a) Describe the Veteran's visual acuity. Is it at least as likely as not (at least a 50 percent probability) that there has been a decrease in visual acuity subsequent to the hospital care, medical or surgical treatment on December 6, 2006 and/or December 12, 2006, or examination? Why or why not? (b) If yes, is it at least as likely as not that any additional decrease in visual acuity was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment on December 6, 2006 and/or December 12, 2006, or examination? Why or why not? (c) If the answer is no, is it at least as likely as not that any decrease in visual acuity an event that was not reasonably foreseeable? Why or why not? A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).