Citation Nr: 20054615 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 18-43 068 DATE: August 18, 2020 REMANDED Entitlement to compensation for a bilateral eye disability, to include on the basis that such disability is service-connected (was incurred or aggravated therein) and (for a left eye disability) under U.S.C. § 1151 (on the basis that it is a result of left eye cataract surgery at the Salisbury VA Medical Center in March 2016) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1954 to February 1957. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, a videoconference hearing was held before the undersigned. In September 2019, the Board remanded the case to the RO for additional development. Entitlement to compensation for a bilateral eye disability, to include on the basis that it is service-connected), and (for a left eye disability) under 38 U.S.C. § 1151 (on the basis that it is a result of left eye cataract surgery at the Salisbury VA Medical Center in March 2016) Unfortunately, there has not been substantial compliance with the Board’s September 2019 remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand specified that an ophthalmological examination should be performed to determine the nature and etiology of the Veteran’s bilateral eye disabilities, but the February 2020 fee-basis VA examination was by an optometrist. Given the multiple conditions involving both of the Veteran’s eyes and the inquiry involving his left eye surgery, a specialty examination by a physician with that particular level of expertise was requested. Moreover, the February 2020 examiner’s opinion (that it was not likely that the claimed bilateral eye disability was incurred in service because there was no history in the medical records of any disease, injury, or complication during the Veteran’s period of military service and no record of any service-connected disability in either eye from the Veteran’s medical records) seemingly relied solely (and impermissively) upon the lack of documentation of any medical evidence of bilateral eye problems in, and after, service. Absence of documentation of complaints or treatment for a disability during or after service cannot be the sole basis for an opinion. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate, and a medical opinion is inadequate if it does not consider the Veteran’s reports of symptoms and history (even if recorded in the course of the examination)). [The Board acknowledges, although the examiner did not specifically note, that this is a fire-related case, and that the Veteran’s entire service treatment record is unavailable.] Additionally, in regard to eliciting from the Veteran his theory of entitlement to service connection for bilateral eye disabilities, as requested in the remand, the documented response in the examination report needs to be reconciled with other evidence in the file. That is, the examiner’s notation that the Veteran “did not mention to me or believe that any of his current ocular symptoms are related to his years of service” directly conflicts with the Veteran’s February 2015 (prior to left eye cataract surgery in March 2016) claim for service connection for bilateral eye disability and his May 2015 statements that his bilateral worsening vision could be from the “flash” from the 105 mm gun (while looking through the range finder) and from the light reflection off ice and snow in winter (making it hard to see). The matter is REMANDED for the following: Arrange for an advisory medical opinion by an ophthalmologist to determine the nature and likely etiology of the Veteran’s bilateral eye disabilities. The Veteran’s record must be reviewed by the examiner in conjunction with this examination. The examiner should interview the Veteran (via telephone, if not in person), specifically eliciting from him his theory of entitlement to service connection for bilateral eye disabilities (i.e., what he believes is the manner in which any current eye disabilities are related directly to his service, to include whether he still maintains that worsening bilateral vision could be from the “flash” from the 105MM gun (while looking through the range finder) and from the light reflection off the ice and snow in winter (making it hard to see), and all current left eye problems that he believes resulted from (are additional disability due to) his March 2016 VA left eye cataract surgery. If the physician deems another examination is necessary to enable the addendum opinion, such should be arranged. Upon examination and interview of the Veteran (if necessary) and review of his record, the examiner should: (a). Note the Veteran’s responses regarding his theory of entitlement to service connection for bilateral eye disabilities and all current left eye pathology and impairment he alleges has resulted from the March 2016 left eye surgery. (b). Note complete findings (pathology, manifestations, impairment) with respect to each eye, and identify the underlying diagnostic entity(ies) they reflect. Account for all complaints elicited from the Veteran. (c). Regarding each left and right eye disability entity diagnosed, opine whether it at least as likely as not (a 50 percent or greater probability) was incurred during the Veteran’s active service? The explanation for the opinion offered should account for the theory of entitlement elicited from the Veteran on interview. (d). If a diagnosed eye disability is found to not have been incurred in service, identify the etiology that is considered to be more likely (and explain why that is so). (e). Regarding all left eye disabilities (pathology, manifestations, impairment) found, opine whether they at least as likely as not (a 50 percent or greater probability) are an additional disability not shown prior to the Veteran’s left eye cataract surgery. Opine further whether they resulted from (are a consequence of) the surgery (specifically addressing the perceived changes in color vision, any changes in visual/fields of vision acuity, floaters, vitreous detachment, reports of flashing, etc.). (f). Regarding any left eye disability determined to be additional disability noted following/related to VA surgical or medical treatment, opine whether it is at least as likely as not (a 50 percent or greater probability) that the such disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care and surgical or medical treatment. (g). If the response to (f) is no (there was no VA fault in the care provided) opine further whether it is at least as likely as not that the additional left eye disability is NOT a reasonably foreseeable consequence of the surgery/postoperative care the Veteran was provided. A consequence that is not “reasonably foreseeable” need not be completely unforeseeable or unimaginable but is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise (regardless whether the particular surgical risk was noted on an operative consent form signed). All opinions must include rationale that cites to factual/clinical data and medical principles, and addresses the Veteran’s stated allegations/beliefs. The examiner should note that absence of documentation of complaints or treatment of an eye disability during or after service cannot be the only basis for rejecting a possible nexus to service, but that identifying a likely etiology (beyond any assertion that there was an absence of documentation of the disability in or after service) may overcome this. The consulting provider is advised that a lack of documentation of an eye disability during service (particularly given that the Veteran’s service treatment records are unavailable) is not fatal to the claim. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.