Citation Nr: 1808460 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-32 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for a glaucoma, left eye, claimed as a left eye disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to February 1952. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks compensation under 38 U.S.C. § 1151 for glaucoma of the left eye, claimed as a left eye disability. The Veteran underwent VA surgery for cataracts in January 2012 and has been treated by private treatment providers for post-surgical glaucoma due to infection. In an October 2015 VA opinion, an examiner reported that the Veteran had an uncomplicated VA cataract surgery with lens implantation in the left eye and unfortunately developed late chronic endophthalmitis in the left eye which required antibiotics and eventually vitrectomy/lens exchange, with subsequent macular edema/elevation of glaucoma in the left eye. The examiner reported that infection was a known risk of cataract surgery, VA employed the currently-accepted best method of treatment, and the Veteran was treated with antibiotics post-surgery, pursuant to the standard of care. The examiner opined that it did not appear that there was negligence, carelessness, lack of skill, or other fault, and that the complication was not an event that could not be reasonably foreseen; and once identified, the complications were managed appropriately, as the Veteran was sent to see a private retina specialist right away to begin treatment. In a June 2016 statement, one of the Veteran's private treatment providers opined that the original VA cataract operation performed was the source of the infection in the left eye, and that it is commonly held that infections following cataract extraction, even in cases when the surgery is performed to the standard of care, typically originate from the ocular surface at time of surgery. In a May 2016 statement, the Veteran asserted that despite what had been reported, he was not put on antibiotics after his first surgery, the VA surgery, which caused his infection and complication. In a February 2017 statement, the Veteran asserted that even though every possible precaution was taken during his January 2012 VA surgery, a very persistent infection was inserted along with the lens used to surgically treat his cataracts, and that such resulted in glaucoma. In an October 2017 statement, the Veteran's daughter reported that she works in the medical field and the VA treatment provider who prescribed the Veteran's antibiotics related to his cataract surgery did not know about the mechanics of action of his hydroxyurea, as such slows mitosis and thus slows healing. She asserted that the VA treatment provider should have prescribed medications to be taken for a longer period of time, and that such was the mistake that enabled the infection to take hold and cause permanent glaucoma. In an October 2017 statement, the Veteran asserted that there was in error in judgment on the part of his VA treatment providers regarding his prescribed antibiotics and his hydroxyurea, and that his eye surgeon should have conferred with his oncologist. The VA examiner who submitted the October 2015 opinion did not have the opportunity to review the Veteran's assertions, and those of his daughter, regarding his hydroxyurea and antibiotic use as it relates to the antibiotics prescribed for his surgical treatment for left-eye cataracts. On remand, the AOJ should obtain an addendum medical opinion addressing these assertions. The most recent VA treatment records associated with the claims file are dated in October 2017. On remand, the AOJ should obtain the Veteran's updated VA treatment records. 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). Expedited handling is requested.) 1. Make arrangements to obtain the Veteran's VA treatment records dated since October 2017. 2. Forward the Veteran's claims file to the VA examiner who submitted the October 2015 opinion, or a suitable substitute. If any examiner determines that physical examination of the Veteran is required, so schedule the Veteran. (a) The examiner should opine as to whether there exists additional disability, including left-eye glaucoma, or any other left eye disability, when comparing the Veteran's condition immediately before undergoing VA surgery of his left-eye cataract in January 2012 to his condition after the surgery. (b) For any such additional disability, including, but not limited to, left-eye glaucoma, the examiner should opine as to whether VA exercised the degree of care in conducting the January 2012 surgery of his left-eye cataracts, considering the June 2016 private opinion that the source of the infection was the lens implanted during surgery, and the lay assertions of record as to his hydroxyurea and oncological treatment and the resulting impact of antibiotics that purportedly should have prompted review with the Veteran's oncologist. (c) For any such additional disability, including, but not limited to, left-eye glaucoma, the examiner should opine as to whether such was/were due to an event not reasonably foreseeable by a health care provider (VA). (d) For any such additional disability, including, but not limited to, left-eye glaucoma, the examiner should opine as to whether VA's action in prescribing antibiotics, at the dosage and duration prescribed, related to the Veteran's left-eye cataracts surgery while the Veteran was being treated for hydroxyurea was reflective of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examinations, and the examiners should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ S. L. Kennedy 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).