Citation Nr: 20006915 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-40 609 DATE: January 28, 2020 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a left eye disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1944 to May 1946. He died in March 2017, and the appellant is continuing the appeal as his substitute claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2015. A transcript is of record. In December 2015 and November 2016, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. The Veteran was afforded a VA examination in January 2017. However, the examiner’s medical opinion is unclear and appears to be internally inconsistent. In this regard, the examiner stated that it was difficult for her to comment as an authority as to whether the Veteran’s scleral tear and globe perforation were foreseeable complications because she was not an anesthesiologist or nurse anesthetist. Nevertheless, the examiner opined that, based on her review of the literature and over 30 years of professional experience, she “would say no.” However, she also stated that globe perforations are the second most commonly reported complication of a retrobulbar block, which seems inconsistent with her opinion. In addition, the examiner opined that there was no evidence of negligence, lack of skill, or error of judgment that resulted in the unfortunate chain of events and subsequent left eye blindness. However, she further stated “I do not believe could not have been foreseen and prevented.” For these reasons, a remand is necessary to obtain a clarifying VA medical opinion. The Board also notes that the Veteran’s VA medical records reference October 2011 surgical anesthesia records located in the Vista Imaging System that do not appear to be associated with the claims file. Therefore, on remand, the Agency of Original Jurisdiction (AOJ) should obtain any outstanding VA medical records. The matters are REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for the Veteran’s left eye disorder that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. The AOJ should specifically ensure that a complete copy of all surgical records pertaining to the Veteran’s October 2011 surgery have been associated with the claims file, including any records located in the Vista Imaging System. See, e.g., October 2011 VA medical records (noting that intra-operative anesthesia and post anesthesia care unit records were scanned to Vista Imaging). 2. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion for the issue of entitlement to compensation under 38 U.S.C. § 1151 for a left eye disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran and the appellant are competent to attest to factual matters of which they have first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran or the appellant, the examiner should state this with a fully reasoned explanation. The examiner should address the following questions: (a) Did the Veteran have any additional left eye disability following his October 2011 VA surgery? To determine whether the Veteran has additional disability, the examiner should compare the Veteran’s condition before the VA surgery in October 2011 to the Veteran’s ophthalmological condition after the VA surgery. Specifically, the examiner should review the October 7, 2011, West Haven VAMC ophthalmology records showing a ruptured globe as a complication arising during the cataract surgery, the November 3, 2011, West Haven VAMC ophthalmology procedure note showing vitreous hemorrhage and subluxed intraocular lens, and the July 2014 private treatment records from Retina Consultants referring to a prior scleral buckle to repair a horseshoe tear and retinal detachment. (b) If the Veteran had additional disability, was the additional disability caused by or made worse by the October 2011 VA surgery and/or anesthesia administered during such surgery? (c) If the Veteran had additional left eye disability that was caused by or made worse by VA surgery and/or anesthesia, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? In providing this opinion, the examiner should address the Veteran’s contention that he developed additional disability due to the injection of too much fluid into his left eye. He or she should also consider the medical literature submitted by the appellant pertaining to ocular injuries and anesthetic for cataract surgery. (d) If the Veteran had additional disability that was caused by or made worse by VA surgery and/or anesthesia, notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of this Veteran’s case, was any additional left eye disability a reasonably foreseeable outcome of the October 2011 surgery? In rendering this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional disability to be an ordinary risk of the hospital care provided and would have disclosed such a risk in connection with the treatment, regardless of the risks the treating physician actually foresaw and disclosed in any informed consent form. In answering the above questions, the examiner should consider the VA pre-operative, operative, and post-operative treatment notes dated since September 2011, as well as the private treatment records. A VA informed consent form dated on September 27, 2011, is also of record. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.