Citation Nr: 21063228 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-49 527 DATE: October 13, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right eye vision loss due to cataract surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to January 1971 and from July 1972 to September 1980. Entitlement to compensation under 38 U.S.C. § 1151 for right eye vision loss due to cataract surgery is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. Specifically, the Board finds that additional records need to be associated with the claims file, and a new VA opinion is needed. A review of the record indicates that there are pertinent treatment reports that have not yet been associated with the claims file. Notably, there are VA treatment records indicating that additional records had been scanned into the VistA Imaging portion of the Veteran's VA treatment records but have not yet been associated with the claims file. See February 2014 Informed Consent/IMED (indicating that the Veteran gave informed consent for his cataract surgery at 8:13 AM on February 13, 2014, and the "full consent document can be accessed through VistA Imaging.") Additionally, there are numerous references in the Veteran's VA treatment records to surgical and follow-up eye care provided by Dr. S.K. and Dr. G.B. in 2014. It appears as if a portion of Dr. S.K.'s reports have been scanned into the Vista Imaging portion of the Veteran's file. See September 2014 NonVA Care Consult Note. On remand, efforts to obtain all available VistA Imaging records should be made, as well as any additional treatment records from Dr. S.K. and Dr. G.B. Additionally, the Veteran underwent VA examination in March 2015; however, the VA examiner provided no opinion regarding the nature and etiology of the Veteran's eye disability but did note that the Veteran had undergone a second surgery performed by Dr. S.K. In an April 2015 addendum opinion, the VA clinician stated that it had to be "clearly noted" that he was an optometrist and not an ophthalmic surgeon. The VA examiner noted that VA treatment records did not indicate any infection following the Veteran's surgery and that vitreous hemorrhage, uveitis, and AC intra-ocular lens are known complications of cataract surgery with blurred vision and scratchiness being normal postoperative sequelae. He opined that there was no indication that the Veteran's reduced visual acuity was the result of negligence, carelessness, or lack of skill on the part of the surgeon or VA. However, the Board notes that the examiner failed to answer several questions posed by the agency of original jurisdiction (AOJ) regarding foreseeability, worsening, and failure to timely diagnose or properly treat. Accordingly, remand for a new VA opinion is necessary. In so finding, the Board also acknowledges the Veteran's representative's objection to the May 2015 VA opinion that it was proffered by an optometrist and not an ophthalmologist. See September 2020 Informal Hearing Presentation. Without making a determination on the validity of this objection, the Board, nevertheless, will request upon remand that the new opinion be authored by an ophthalmologist or ophthalmic surgeon. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2017 to the present, as well as all available Vista Imaging records (to include February 2014 Informed Consent Form and September 2014 NonVA Care Consult Note.) If such records are unavailable, this should be made clear. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. S.K. and Dr. G. B. if these records cannot be obtained as part of the Veteran's above-requested VA treatment records. If necessary, make two requests for the authorized records from Dr. S.K. unless it is clear after the first request that a second request would be futile. 3. Upon completion of the above, obtain an opinion from a qualified ophthalmologist or ophthalmic surgeon to address the etiology of the Veteran's claimed right eye visual impairment due to cataracts surgery. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. The VA clinician is asked to address whether it is as likely as not that the Veteran has an additional disability that: (a.) was not the result of the Veteran's willful misconduct; and (b.) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title [38 U.S.C. § 1701 (3)(A)]; and (c.) the proximate cause of the disability was either: (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. In drafting the opinion, the VA clinician should also address the following: (d.) Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider and whether the Veteran received informed consent pursuant to 38 C.F.R. § 17.32 for all applicable VA care. (e.) The Veteran's claim that his vision was better prior to his VA treatment. (f.) All pertinent treatment by the VA, as well as any follow-up treatment or eye procedures performed by VA, Dr. S.K., and Dr. G.B. (Continued on the next page) A complete rationale must be provided for all opinions expressed. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.