Citation Nr: 1807612 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-14 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability due to VA medical treatment. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Gentile, Associate Counsel INTRODUCTION The Veteran had active naval service from January 1966 until October 1969, receiving a Republic of Vietnam Campaign Medal with Device. This case comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the claim on appeal is decided. The Veteran asserts that his right eye disability was caused by poor medical care by the VA. In particular, the Veteran asserts that he was not aware that his right eye condition could become worse based upon the procedures that he underwent in February and March 2010. The Veteran asserts that he was not able to make an informed consent regarding the risks involved with his eye surgery. The Veteran was inpatient in a VA facility in Topeka, Kansas in February and March 2010 for alcohol treatment. The Veteran was transferred to the facilities for outpatient eye treatment and then returned to the VA facility where the Veteran was staying. The Veteran received fee based treatment for procedures on his right eye. The first procedure, a scleral buckling and cryotherapy, for a macula off retinal detachment was in February 2010 at the Shawnee Mission Medical Center in Shawnee Mission, Kansas. He then suffered a redetachment because of the development of proliferative vitreoretinopathy, which led to a second right eye procedure in March 2010, a vitrectomy and laser treatment, at the St. Francis Health Center. Complications developed in the right eye that led the Veteran to lose his eyesight in the right eye. In a December 2014 VA examination, the examiner opined that it is less likely than not that the disability or vision loss in the Veteran's right eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The examiner reported the Veteran had a macula off retinal detachment that he received treatment for in Topeka with scleral buckling and cryotherapy. He then suffered a redetachment which was treated with vitrectomy and laser. The retina then detached again because of the development of proliferative vitreoretinopathy. The examiner went on to further offer that redetachment of the retina following retinal detachment surgery is not rare and can be unavoidable despite the best efforts by the surgeon. The examiner further opined that he did not see any treatments that were outside of the standard of care. The Veteran's informed consent forms for both surgeries are not part of the Veteran's file. It does not appear that this information was reviewed by the examiner in making the opinion on the Veteran's standard of care. The Board finds the December 2014 VA examination to be inadequate for adjudication purposes. The VA examiner failed to consider separately if the Veteran's first treatment, with scleral buckling and cryotherapy, or if the Veteran's second treatment, by vitrectomy and laser, in anyway led to the Veteran's ultimate redetachment of the retina and loss of eyesight. The examiner did not offer an opinion as to each procedure. Also, the examiner failed to offer an opinion as to the care the Veteran received on his right eye by the VA before and after the procedures the Veteran had in February and March 2010 and if this care, both pre and post-surgery, led in any way to the Veteran's complications, including loss of eyesight in his right eye. Also, the examiner should review VAMC progress notes from February 2010, from shortly after the first procedure, where it was noted the Veteran would not let the staff help him with his eye patch and the Veteran needed to be advised by the staff nurse how to properly care for his eye post-surgery. An opinion should be offered as to whether or not post-surgery care led to complications in regards to the Veteran's right eye. The Veteran's informed consent forms for both surgeries are not part of the Veteran's file. It does not appear that this information was reviewed by the examiner in making the opinion on the Veteran's standard of care. Failure to review this information also makes this examination inadequate for adjudication purposes. Therefore, the Veteran should be afforded a new VA examination to determine entitlement to compensation based on the right eye disability. The examination must contain a separate opinion on the standard of care for each eye procedure independently, as well as the standard of care used by the VA pre and post-surgery while the Veteran was staying at the VA facility for alcohol treatment. All medical records relating to the care of the Veteran's right eye must be obtained and reviewed, including the informed consent forms signed by the Veteran before both procedures. The medical records for the first procedure in February 2010 indicate that the Veteran signed an informed consent form before being taken for the right eye surgery. Additionally, any outstanding current treatment records should be identified and obtained before a decision is made in this appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file, to specifically include records of any treatment the Veteran may have received in regards to his right eye detached retina both before and after his surgical procedures. If possible, the Veteran should obtain these records himself. 2. Then, schedule the Veteran for a VA medical opinion with an examiner of appropriate expertise to offer an opinion on whether the Veteran's right eye condition was caused or related to malpractice by the VA. The claims file must be made available to, and reviewed in conjunction with the examination by the examiner. Any indicated tests and studies must be performed. Following a review of the claims file and examination of the Veteran, the VA examiner should offer the following opinions with supporting rationale: (a) Did the Veteran receive a proper informed consent form before the February 2010 and March 2010 right eye procedures advising him that he could possible lose eye sight in that eye. (b) Is it more likely than not that any disability in the Veteran's right eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable by the VA in treating the Veteran's right eye before, during and after the two surgical procedures. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and medical opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, adjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board. 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. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).