Citation Nr: 21002847 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-06 441 DATE: January 15, 2021 REMANDED Entitlement to compensation for a right eye condition under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1967 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in September 2018. In April 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). Entitlement to compensation for a right eye condition under 38 U.S.C. § 1151 is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the September 2018 remand directives. See Stegall v. West, 1 Vet. App. 368 (1998). Specifically, in September 2018, the Board instructed the AOJ to obtain the Veteran’s VA treatment records from March 2002 to December 2015, including any informed consents. The record shows that the Veteran’s VA treatment records for such period have been associated with the claims file. See Cleveland VA Medical Center (VAMC) records, received July 2019 and November 2019 in CAPRI. However, while these records indicate that informed consents are available through Vista Imaging, no consents have been associated with the claims file. See id. As the Board cannot find substantial compliance with the September 2018 remand directives, a remand is necessary to allow the AOJ to the entirety of the Veteran’s VA treatment records, including any documents, such as informed consents, through Vista Imaging. Even if the Board could find substantial compliance with the September 2018 remand directives, a remand would nonetheless be necessary to allow the AOJ to obtain an adequate opinion regarding the Veteran’s right eye condition. In September 2019, the Veteran was afforded a VA examination in which the examiner opined that the Veteran’s right eye condition was less likely than not due to any of his laser surgeries or cataract surgery performed at Cleveland VAMC. In support of this opinion, the examiner noted that the Veteran had poor vision and retinal pathology prior to and after the cataract surgery and that there was insufficient evidence in the medical records to support a causal relationship between the surgeries and the right eye disability. The examiner also noted that the records are not indicative of when the Veteran’s vision significantly decreased and that there was insufficient evidence to indicate a causal relationship between any possible carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on VA’s part and the Veteran loss of visual acuity. However, the examiner also noted that records relating to the surgeries in 2005 and 2006 were not found. See September 2019 VA Eye Conditions Disability Benefits Questionnaire (DBQ); September 2019 VA Medical Opinion DBQ. In July 2020, an addendum opinion was obtained from the September 2019 examiner, in which the examiner opined that the Veteran’s right eye disability was not caused by his laser treatment but rather was a difficult clinical condition that progressed with time. In support of this opinion, the examiner stated that his vision was 20/25 in 2005 when he started laser treatment and was 20/60 by November 2006. The examiner also noted that there were no records from November 2006 until December 2011 when the Veteran presented with 20/200 vision. See July 2020 VA Addendum Opinion. However, a review of the Veteran’s VA treatment records reveals that the Veteran continued to undergo laser treatment through August 2007, the severity of his right eye vision loss was documented 17 times between November 2006 and December 2011, and that his right eye vision first presented as 20/200 in August 2007. See Cleveland VAMC records. As such, the September 2019 opinion, as well as the July 2020 addendum thereto, appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Further, an opinion is inadequate when, as indicated here, the examiner fails to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Moreover, as discussed above, relevant VA medical records have not been associated with the claims file. As such, the examiner was unable to consider the entirety of the Veteran’s prior medical history and, therefore, the September 2019 opinion and July 2020 addendum thereto are inadequate. See id. For these reasons, the Board finds the September 2019 opinion and July 2020 addendum opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the Veteran’s claim of entitlement to compensation for a right eye condition under 38 C.F.R. § 1151. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, to include any documents through Vista Imaging, including informed consents. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, as well as any additional development warranted by the record, return this matter to the September 2019 examiner for an addendum opinion regarding the Veteran’s right eye condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the September 2019 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran’s lay history, including onset and progression of symptomatology. (b.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran has an additional disability due to his VA treatment for a right eye condition from February 2005 through November 2007. (c.) Opine as to whether the Veteran’s right eye condition underwent an incremental increase (aggravated), regardless of permanence, due to his VA treatment from February 2005 through November 2007. 1. The examiner should consider, VA treatment records that show the Veteran underwent laser treatment through August 2007 (the severity of his right eye vision loss was documented 17 times between November 2006 and December 2011, and that his right eye vision first presented as 20/200 in August 2007). See Cleveland VAMC records. (d.) If, and only if, the Veteran’s right eye condition underwent an incremental increase or otherwise has additional disabilities due to his VA treatment, address the following: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA’s part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider). ii. Based upon the specific facts and circumstances of this Veteran’s case, was such additional disability a reasonably foreseeable outcome of the Veteran’s VA treatment. iii. Whether a reasonable healthcare provider would have considered the Veteran’s additional disability to be an ordinary risk of the treatment provided and would have disclosed such risk related to the treatment, regardless of what risks the treating physician foresaw and disclosed in any informed consent forms. (e.) In formulating the requested opinions, the examiner is asked to consider and explicitly address the following: i. The use of carrying power levels in laser treatments, specifically the use of: 85 megawatts (mW) on April 6, 2005; 450 mW on April 29, 2005; 360 mW on June 2, 2005; 100 mW on February 1, 2006; 80 mW on March 14, 2007; and 50 mW on August 8, 2007; ii. Right eye scars noted on July 26, 2005, September 26, 2005, and March 4, 2009; and iii. Any informed consents. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. The AOJ must review the claims file and ensure that the foregoing development action hs been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.