Citation Nr: 19136293 Decision Date: 05/10/19 Archive Date: 05/10/19 DOCKET NO. 16-05 826 DATE: May 10, 2019 REMANDED Entitlement to compensation under 38 U.S.C. 1151 for right eye blindness due to surgery is remanded. REASONS FOR REMAND The Veteran served in the Navy from August 1956 to June 1960. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2018. A transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). The Veteran contends that VA is responsible for the right eye blindness he claims onset following a March 2004 cataract surgery performed at a VA facility because “they refused to allow treatment for the retinal repair” that was scheduled at a hospital in April 2004, and “VA failed to give advi[c]e to seek any emergency care when my retina detached, resulting in blindness in my right eye”. See February 2016 VA Form 9. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Surgical treatment performed without informed consent that results in additional disability also entitles a claimant to compensation under 38 U.S.C. § 1151 (d)(1)(ii). In this case, the record VA and private treatment records. However, there is no informed consent form of record as the records from the Veteran’s 2004 cataract surgery at a VA facility appear to be missing from the record. Thus, a remand is necessary. Additionally, while the claims file contains a contemporaneous VA examination, a remand is further necessitated for an addendum opinion in lieu of the Veteran’s assertions. The Board cannot make a fully-informed decision on the issue of his right eye blindness because no VA examiner has opined whether it occurred due to a failure on the part of VA to timely diagnose and/or properly treat his retinal detachment, allowing it to continue to progress to blindness as the Veteran claims. The matter is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records relevant to the claim being remanded, to specifically include those containing the informed consent form associated with his 2004 cataract surgery. 2. Following completion of step one, obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should answer the following inquiry: Whether it is at least as likely as not (50 percent or greater probability) that VA failed to timely diagnose and/or properly treat the Veteran’s post-cataract surgery retinal detachment, allowing it to continue to progress to blindness? In so opining, the examiner is reconcile, to the extent possible, the Veteran’s assertion that “VA failed to give advi[c]e to seek any emergency care when my retina detached, resulting in blindness in my right eye”. The clinician is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the medical professional is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. (Continued on the next page)   3. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Associate Counsel