Citation Nr: 20046468 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 13-35 564 DATE: July 10, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left eye vision loss is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1962 to June 1969. He died in September 2010. The appellant is his surviving spouse. In December 2010, the agency of original jurisdiction (AOJ) granted the appellant’s October 2010 request for substitution (via Application for DIC, Death Pension, and/or Accrued Benefits). See 38 C.F.R. § 3.1010(c)(2) (2017). As the appellant has been properly substituted as the claimant in this case, the Veteran’s appeal is continued. See 38 U.S.C. § 5121A (2012). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.   In October 2016, the appellant and her son testified during a Board video-conference hearing before the undersigned; a transcript of that hearing is of record. In April 2017, the Board remanded the claim for additional development. In March 2018, the Board requested an independent expert medical (IME) opinion; a response was provided in June 2018. In October 2018, the Board again remanded the claim for an additional medical opinion. The appellant maintains that the Veteran experienced significant left eye vision loss due to the negligence of VA clinical staff during an August 2004 operation to treat left eye glaucoma. Further, the Veteran had contended that VA personnel failed to exercise due diligence by failing to advise him to stop taking “a blood thinner called Plavix,” prescribed for a heart condition, prior to and after the August 2004 operation. See October 2009 Statement. By way of history, in August 2004, the Veteran underwent an operation (combined phacoemulsification with intraocular lens implant and trabeculectomy with mitomycin) to treat his left eye glaucoma. See August 2004 VA Operation Report. The VA surgeon noted that the Veteran had been taking Plavix and aspirin at that time. During the operation, a complication arose due to intraoperative intraocular hemorrhage, which resulted in extensive bleeding and subsequent development of a retrolental blood clot. See November 2004 VA ophthalmology note. In November 2004, the Veteran underwent a corrective left eye operation (pars plana vitrectomy with posterior capsulotomy of the left eye) at a private medical facility. While subsequent VA ophthalmology treatment records dated through 2005 indicate that the Veteran’s left eye vision temporarily improved, see, e.g., December 2004 VA treatment note (reflecting left eye visual acuity of 20/50 with correction) and April 2005 VA treatment record (noting left eye visual acuity of 20/25 without correction), of record is a September 2009 letter from Dr. R.J.R., a   private physician, who reported that the Veteran’s “left eye ha[d] persistent poor vision recorded in the CF (a scale using “counting fingers” indicative of a very low vision) and that the private physician “[did] not expect the left eye to improve. An October 2009 VA treatment note documented an ocular problem list and noted a list of issues that the Veteran’s vision loss was secondary to; diabetes was not noted as an issue that caused his vision loss. An April 2010 VA examiner, in part, opined that the Veteran’s eventual loss of left eye vision “appear[ed] to be from uncontrolled diabetes leading to proliferative diabetic retinopathy and a severe form of glaucoma from diabetes,” rather than the August 2004 VA left eye operation. Given, in part, that the opinion was not supported by a rationale, the Board sought the June 2018 IME opinion. The June 2018 IME examiner opined that the Veteran did not have any additional left eye disability caused or worsened by VA clinical personnel’s failure to render reasonable medical care during the August 2004 left eye operation. In so doing, the June 2018 IME examiner’s extensive response, as to whether the Veteran incurred an additional left eye disability, was solely limited to a discussion of the Veteran’s temporary left eye vision improvement from 2004 through 2005. The IME expert did not address whether the Veteran’s significant left eye vision loss since the temporary left eye vision improvement, as reported by the Dr. R.J.R. in the September 2009 letter, constituted an additional left eye disability that was caused or worsened by VA clinical personnel’s failure to render proper care, as originally contended by the Veteran in his October 2009 statement. The October 2019 VA examiner opined that the left eye disability is less likely than not as due to the August 2004 left eye operation. The examiner walked through the progression of eye disease from just prior to the August 2004 left eye operation through the September 2008 left eye surgery for proliferative diabetic retinopathy and neovascular glaucoma. The examiner noted that bleeding is a known   complication of intra-ocular surgery and was addressed in the informed consent and considered the treatment for the bleed met the appropriate standard of care. The examiner concluded that the left eye vision loss was due to the progression of diabetic retinopathy, in agreement with the April 2010 VA examination. Though the examiner noted that the bleeding was a known complication of the surgery and that the treatment met the appropriate standard of care, the examiner failed to address those issues raised in the October 2018 Board remand. Specifically, the examiner was asked to consider a September 2009 letter from Dr. Rothman and to specifically address whether the VA staff’s failure to advise the Veteran to stop taking Plavix and/or aspirin prior to or after the August 2004 surgery constituted a failure to render proper care resulting in an additional left eye disability. In making this determination, the Board is cognizant that these matters stem from an April 2010 rating decision and have been the subject of multiple prior Board remands. However, VA has a duty to assist Veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2016). Accordingly, when VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the medical examination is inadequate, the Board cannot proceed with the merits of this claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). The matter is REMANDED for the following actions: 1. Obtain an addendum medical opinion from an appropriate ophthalmologist addressing the appellant’s claim for the Veteran’s left eye vision loss under U.S.C. §1151(2012). 2. The examiner should opine whether it is at least likely as not (a 50 percent or greater probability) that the Veteran had an additional left eye disability or disabilities caused or worsened by VA’s medical care. In order to avoid another request for this information, the examiner must provide a separate response using the standard described above in this paragraph for each inquiry posed below. In doing so, the examiner should specifically consider the September 2009 letter from Dr. R.J.R., which reflects that the Veteran’s “left eye ha[d] persistent poor vision recorded in the CF (a scale using “counting fingers” indicative of a very low vision) and that the private physician “[did] not expect the left eye to improve.” The examiner should also specifically address the October 2009 VA treatment note that documents several ocular issues that are contributing factors to Veteran’s vision loss. 3. The examiner should then opine whether it is at least likely as not (a 50 percent or greater probability) that such additional disability was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; 4. The examiner should then opine whether it is at least likely as not (a 50 percent or greater probability) that such additional disability was the result of such additional disability an event not reasonably foreseeable. In this regard, the examiner should specifically address whether VA clinical staff’s failure to advise the Veteran to stop taking Plavix and/or aspirin prior to or after the August 2004 surgery constituted failure to render proper care resulting in an additional left eye disability. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelsey Love, 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.