Citation Nr: 21071973 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-31 086A DATE: December 1, 2021 REMANDED The issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a June 2008 surgery of the right eye is remanded for further development. REASONS FOR REMAND The Veteran served on active duty from September 1967 to July 1970, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file presently resides with the St. Petersburg, Florida RO. In May 2012, the Veteran testified at a VA RO before a Decision Review Officer (DRO). Thereafter, in August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings are of record. Compensation under 38 U.S.C. § 1151 Although the Board regrets the additional delay, it finds that remand is warranted prior to adjudication of the issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a June 2008 surgery of the right eye. Specifically, the Board notes that the Veteran has yet to be afforded a VA medical opinion regarding whether he experienced additional disability of the right eye because of the June 2008 surgery and, if so, (1) whether the additional disability resulted from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or, (2) was an event that was not reasonably foreseeable. Accordingly, the Board remands the issue of entitlement to compensation under 38 U.S.C. § 1151 for the provision of a VA medical opinion. In remanding this issue, the Board emphasizes that a physical examination should not be scheduled unless it is determined by the selected clinician to be essential to the provision of the opinion. The matter is REMANDED for the following action: Send the Veteran's claims file to a VA specialist in ophthalmology (or another appropriate, related field) for the issuance of a medical opinion in connection with the Veteran's claim for compensation under 38 U.S.C. § 1151. The entire claims file, including a copy of this remand, must be made available to and must be reviewed by the specialist. If the specialist determines that a physical examination is absolutely necessary to provide the opinion, one should be scheduled. After reviewing the claims file, the specialist should address the following: (a.) Did the Veteran sustain any additional disability following the right eye cataract performed in June 2008? To determine whether the Veteran had additional disability, the specialist should compare the Veteran's condition before the procedure, to the Veteran's condition after the procedure, including his reports of symptoms and his treatment records. In answering this question, the specialist should directly address the findings of Dr. Levine reported in an Eye Conditions DBQ received in October 2021, and Remarks made in a June 2019 VA medical opinion concerning other eye conditions that the Veteran has a current diagnosis of hypotropia as a complication of right eye cataract surgery due to damage of the rectus muscle. (b.) If the Veteran sustained additional disability, was the additional disability caused by or made worse by the June 2008 right eye cataract surgery. (c.) If the Veteran sustained additional disability caused or made worse by the June 2008 procedure, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA? (d.) If the Veteran sustained additional disability caused or made worse by VA treatment, notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of this Veteran's case, was the additional disability a reasonably foreseeable outcome of the June 2008 right eye cataract surgery? In explaining any answers to subparts (c) and (d) please address the Veteran's contention that the anesthesia in connection with the June 2008 procedure was administered inappropriately, and the medical literature the Veteran submitted in support of this contention. Please provide thorough explanations and support for any opinions expressed, with a discussion of any relevant peer-reviewed literature referenced in formulating the requested opinion. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. The specialist must provide thorough explanations and support for any opinions expressed, with a discussion of any relevant peer-reviewed literature referenced in formulating the requested opinion. If he or she cannot provide the requested opinions without resorting to speculation, he or she must expressly indicate this and provide a supporting rationale as to why that is so. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.