Citation Nr: 1325907 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 12-12 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for blindness of right eye and droopy eyelid with loss of peripheral vision due to VA treatment. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1945 to February 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the Veteran requested a hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence, dated in July 2012. The Veteran having withdrawn his hearing request, the Board will proceed to review the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. The Veteran contends that he has right eye blindness and a droopy eyelid with loss of peripheral vision following two surgeries in September 2006 at the VA Medical Center (VAMC) in Memphis, Tennessee. On September 5, 2006, the Veteran had cataract surgery on his right eye. Prior to his surgery, he was informed of the risks such as loss of vision and proceeded to have surgery. Surgery records indicate that approximately one eighth of the lens fell into vitreous. Anterior vitrectomy was preformed with complications. On September 13, 2006, the Veteran had a second surgery to remove the retained lens fragments. Treatment records after his surgeries show an initial improvement in visual acuity, then a subsequent worsening. A September 2009 private treatment record indicates that a loss of control of the lens during surgery was a known complication, but did not occur often. The Veteran contends that the loss of control of the lens demonstrates carelessness, negligence, lack of proper skill or error in judgment. See May 2012 substantive appeal. A VA examination has not been obtained to determine whether the Veteran has additional disability from his VA treatment; and, if so, whether the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. The Board finds that a remand is necessary to obtain a VA examination in order to render a decision in this case. Also, the most recent treatment records from the VAMC in Memphis, Tennessee are dated in July 2010. Accordingly, on remand, records of any ongoing VA right eye treatment that the Veteran may be receiving should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After obtaining the appropriate release of information forms where necessary, procure records of right eye treatment that the Veteran has identified. The Board is particularly interested in records from the Memphis VAMC since July 2010. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine whether he has any additional right eye disability from VA's September 2006 surgeries. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. After examining the Veteran and reviewing the claims file, the examiner should opine as to the following: a) Is it more likely than not (i.e., greater than 50% probability), less likely than not (i.e., less than 50% probability), or as likely as not (i.e., 50% probability) that the Veteran sustained additional disability as a result of VA's September 5, 2006, cataract surgery and September 13, 2006, removal of lens fragment surgery? If so, what is the additional disability? b) Is it more likely than not, less likely than not, or as likely as not, 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? c) Is it more likely than not, less likely than not, or as likely as not, that any additional disability was due to an event not reasonably foreseeable? The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment provided. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MILO H. HAWLEY 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).