Citation Nr: 20038099 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 17-05 535A DATE: June 3, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left eye condition due to VA medical treatment is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran entitlement to compensation under 38 U.S.C. § 1151 for a left eye condition. A Board hearing was held in September 2019. A transcript is of record. In December 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded for additional records and a VA examination. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2019 remand, the Board instructed that “all available records from the Veteran’s November 2009 left eye surgery” were to be added to the evidentiary record. The Board added that “all pre-operative records should be requested and obtained, to include all consent forms signed prior to the surgery.” Attempts to request and obtain these records were to be recorded in the evidentiary record. The Board also remanded for a VA examiner to opine on whether the Veteran’s additional disability was the result of either: (1) VA’s failure to exercise the appropriate degree of care or (2) an event that was not reasonably foreseeable. In addressing an event that was not reasonably foreseeable, the Board explained that the determination is “based on what a reasonable health care provider would have foreseen and disclosed in connection with informed consent procedure.” Additionally, the Board instructed the examiner to “discuss . . . the documented post-surgical left eye infection.” The AOJ did not substantially comply the Board’s December 2019 remand instructions. As such, remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s primary contention is that the absence of a written consent form does not in itself presume that complications of surgery or whether foreseeable outcomes were disclosed to the Veteran. See December 2019 Appellant’s Brief. The record shows that the AOJ added medical records to include notes from the November 2009 surgery. See January 2020 VA medical records. However, several entries state that documents were scanned and only made available through Vista. Id. (multiple notes dated in November 2009). Though the Board instructed that all available records from the November 2009 surgery were to be associated with the evidentiary record to include consent forms, no attempts were documented that the scanned documents were ever pursued. In March 2020, a VA examiner opined that the Veteran’s loss of vision was ultimately due to his glaucoma treated with multiple surgical attempts. See March 2020 VA examination report. The examiner stated the surgery was documented as uncomplicated and performed with a local anesthetic. Id. Importantly, the examiner stated he was unable to find a full informed consent document, and that the document was “most likely” available elsewhere. Id. The examiner did not discuss the documented post-surgical eye infection, did not opine on the degree of care used during surgery, and did not opine on whether the Veteran’s condition was either foreseeable or likely to have been disclosed in an informed consent document. The Board notes that while the March 2020 examiner noted an “uncomplicated” surgery, the medical records describe that the post-operation course was “complicated by an infection.” See January 2020 VA medical records (April 2010 entry). On remand, the examiner must address the contradictory evidence. The deficiencies described above must be addressed on remand. The matter is REMANDED for the following action: 1. Request all available records from the Veteran’s November 2009 left eye surgery that are not already of record, to include all consent forms signed prior to the surgery and documents uploaded into Vista related to the November 2009 left eye surgery. All efforts to obtain the identified records should be clearly documented in the evidentiary record and the Veteran should be accorded the opportunity to furnish such records directly to the VA. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician – an ophthalmologist if possible. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s decreased visual acuity was the result of either: (a) VA’s failure to exercise the degree of care that would be expected of a reasonable healthcare provider; or (b) an event that was not reasonable foreseeable Whether the proximate cause of a Veteran’s claimed disability was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen and disclosed in connection with informed consent procedure as to the particular Veteran. The examiner must discuss (1) the Veteran’s report of waking during the November 2009 surgery, (2) the documented post-surgical left eye infection, (3) the April 2013 private treatment records of Dr. M.M., and (4) the April 2010 entry describing that the post-operation course was “complicated by an infection.” The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.