Citation Nr: 20060669 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 16-05 826 DATE: September 15, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness due to surgery is remanded. REASONS FOR REMAND The Veteran served in the Navy from August 1956 to June 1960. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2018. A transcript of that hearing is associated with the claims file. In May 2019, the Board remanded this appeal for development. The Board finds that there was substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Regrettably, more development is still necessary for the Veteran’s claims of compensation under 38 U.S.C. § 1151 for right eye blindness due to surgery. The Veteran contends that VA is responsible for the right eye blindness he claims onset following a March 2004 cataract surgery performed at a VA facility because “they refused to allow treatment for the retinal repair” that was scheduled at a hospital in April 2004, and “VA failed to give advi[c]e to seek any emergency care when my retina detached, resulting in blindness in my right eye.” See February 2016 VA Form 9. In the September IHP, the Veteran contends that VA did not “establish causability of additional disability resulting in blindness in his right eye when they refused to allow treatment for the retinal repair [at a private hospital,] in Asheville, after a VA doctor scheduled the repair.” The Veteran also contends that there are inconsistencies in the record concerning the care he received. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Surgical treatment performed without informed consent that results in additional disability also entitles a claimant to compensation under 38 U.S.C. § 1151 (d)(1)(ii). Here, in August 2019, the examiner provided a medical opinion opining that it is less likely than not (less than 50% probability) that VA failed to timely diagnose and/or properly treat the Veteran’s post-cataract surgery retinal detachment, allowing it to continue to progress to blindness. The examiner responded to the Veteran’s assertion that the VA failed to give advice to seek any emergency care when his retina detached as follows: This statement is faulty in several ways: 1) Both before and after the initial March 8, 2004 cataract surgery, the precautions and possible sequela of cataract surgery to include retinal detachment and endophthalmitis were reviewed with the veteran, 2) On March 17, 2004, both before and after the IOL repositioning procedure, the precautions and possible sequela of cataract surgery to include retinal detachment were reviewed with the veteran, 3) The patient was provided all appropriate post-operative follow-up visits and subsequent warnings of the possible sequela to include retinal detachment, and 4) the veteran was provided a follow-up visit on March 31, 2004. On April 1, 2004, the veteran after a nap noticed that the vision in the OD had become significantly worse. The veteran was examined soon thereafter and found to have a retinal detachment. The veteran then had retinal detachment surgery on April 5, 2004, and 5) the Consent Form specifically notes “...the associated risks and benefits involved, and the possibility of complications have been fully explained to me.” The examiner provided a thorough explanation of the pre-operative and post-operative literature, including the fact that complications can arise for patients having cataract surgery. However, the examiner did not address the Veteran’s other contentions about the timing of the treatment. In the October 2018 Board hearing, the Veteran testified that he woke up from a nap and was blind, so he called the Durham facility, and they told him that because it was raining so hard he should go to the Asheville emergency room. The doctor at Ashville indicated that his conditions was “to extent for me,” and sent him to Western Carolina Retina Associates. But, after lining up all the equipment he needed, and scheduling the procedure, he called the VA, and they indicated they would not pay for it, so he had to go to the Durham VAMC. However, Durham indicated it would not operate on him for a week, and so he would be blind for the rest of his life. The Board cannot make a fully informed decision on the issue of his right eye blindness because no VA examiner has opined whether the four day delay in obtaining surgery caused the Veteran to lose his sight. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should answer the following inquiry. (a.) Whether it is at least as likely as not (50 percent or greater probability) that the four-day delay in obtaining surgery was a factor in the Veteran losing his eyesight in his right eye. (b.) Whether it is at least as likely as not (50 percent or greater probability) VA failed to timely diagnose and/or properly treat the Veteran’s post-cataract surgery retinal detachment, allowing it to continue to progress to blindness? In so opining, the examiner is to address the Veteran’s assertions: i. The Veteran asserts that VA would not authorize him to receive necessary treatment that could have saved his vision in his right eye, and that if he had been able to receive treatment from a private medical provider it would have most likely occurred within approximately 24 hours of the Veteran waking up from a nap blind from his detached retina. ii. The Veteran asserts that VA did not provide him timely care for his right eye. Specifically, if the VA would have scheduled an earlier surgery at a VA facility, he may still have his eyesight in his right eye. iii. The Veteran asserts that VA did not provide him any advice (at the time he sought treatment for retinal detachment) explaining the significance of his condition, and the necessity of obtaining timely care in order to preserve his eyesight in his right eye. 2. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran’s theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 289 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained). 3. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 4. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.