Citation Nr: 20021113 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-02 132 DATE: March 24, 2020 REMANDED Entitlement to VA compensation under 38 U.S.C. § 1151 for a right eye retinal tear with vision loss as a result of a cataract surgery conducted by the VA is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to November 1971. In February 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board finds that a remand is necessary to provide the Veteran with a physical eye examination and to obtain an additional medical opinion. Notably, the RO obtained a March 2015 medical opinion from a VA ophthalmologist, which was based solely on review of the record and not a physical examination of the Veteran. The ophthalmologist opined that it is at least as likely as not that the current disability was the result of the cataract surgery performed at the VA and noted that according to medical literature it was a known potential complication of the procedure. The ophthalmologist further opined that based on review of the medical record and operative report, the condition was not due to negligence or poor care by VA. In this regard, the ophthalmologist noted that the Veteran’s post-operative vision and recovery was acceptable with visual acuity of 20/20 in the affected eye. The ophthalmologist added that the retinal tear following the surgical procedure did not have an effect on his post-operative visual acuity, which was evidence by a May 2014 visual acuity of 20/20. Lastly, the ophthalmologist opined that per the medical record the condition was properly and appropriately treated in a timely manner, which was based on the ophthalmologist experience in the field as well as standard of care expected for this condition. Upon review, however, the Board finds some deficiencies in the ophthalmologist opinion. First, the ophthalmologist noted that the Veteran’s vision acuity was normal; however, a review of the record shows multiple vision examinations that showed vision acuity in the right eye that was other than 20/20. Second, the ophthalmologist did not explain if the retinal tear in itself caused any other residuals. Third, the Veteran’s main allegation is that a student conducted the surgery contrary to his consent. Obtaining information regarding this allegation is necessary. To sum, the Board finds that physical examination is necessary to determine any currently diagnosed right eye disability as a result of the cataract surgery and to determine whether a qualifying additional disability was caused by the surgical treatment, and whether the proximate cause of the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment, or was the result of an event not reasonably foreseeable. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA eye examination by an appropriate examiner to help determine the likely etiology of any currently diagnosed right eye disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right eye disabilities, to include a retinal tear with reduced visual acuity. (b) For each currently diagnosed disability, provide an opinion whether it is at least as likely as (a 50 percent or higher probability) not caused or aggravated by the August 2013 cataract surgery at the VA. (c) If additional disability resulted, provide an opinion as to whether it was caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA? In doing so, address the Veteran’s assertion that he did not consent to a student conducting the surgery but specifically requested that the surgeon do it. (d) If additional disability resulted, also provide an opinion as to whether it was a reasonably foreseeable result of the VA’s cataract surgery, that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment(s) at issue? (Continued on the next page)   A complete rationale should be provided for all opinions. 2. Thereafter, readjudicate the remanded claim. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate 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.