Citation Nr: 21073554 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-06 611 DATE: December 9, 2021 REMANDED Entitlement to compensation under 38 U.S.C. §1151 for right eye vision loss resulting from a May 2002 VA cataract surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to December 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 Regional Office (RO) rating decision. In June 2015, the Veteran testified before a Decision Review Officer (DRO) and in May 2021 he testified before the undersigned Veterans Law Judge (VLJ). The transcripts of those hearings are of record. Entitlement to compensation under 38 U.S.C. §1151 is remanded. Generally, compensation is payable for any disability which is caused by VA hospitalization, medical or surgical treatment, vocational rehabilitation, compensated work therapy program (CWT), or as the result of having submitted to a VA medical examination. 38 U.S.C.§ 1151. The evidence must show that the Veteran's additional disability is actually the result of VA care. Specifically, 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 must be shown; or the proximate cause of disability must be an event not reasonably foreseeable. Id. For training and rehabilitation services or compensated work therapy program, it must be shown that the Veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA proximately caused the disability. Id. Merely showing that a Veteran has additional disability is not sufficient to establish causation. Id. After reviewing the evidence of record, the Board that there has not been substantial compliance with the Board's prior remand directives. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). By way of background, in July 2021, this matter was remanded because there was a lack of clarity and consistency among the medical opinions regarding the etiology of the Veteran's central retinal vein occlusion (CRVO) and subsequent neovascular glaucoma (NVG), which resulted in the Veteran's right eye blindness. See July 2021 Board Decision. Specifically, the VA examiners opined that the Veteran's diabetes mellitus, hypertension, and coronary artery disease caused the Veteran's central retinal vein occlusion (CRVO) and subsequent neovascular glaucoma (NVG), not the May 2002 surgery. See VA Examinations dated February 2009, April 2016, August 2016, and October 2021. However, this finding contradicted Dr. N. Cardona's medical opinion, which concluded that the inflammation tissue damage and slight hemorrhage blocked the trabecular outflow, which initiated a rise of the intraocular pressure of the eye and caused the glaucoma. See June 2015 Private Medical Opinion. Because the VA examiners did not adequately address the Veteran's post-surgery complaints or clinical findings, on remand, the examiner was directed to address this evidence along with the timing of these symptoms and findings in relation to the May 2002 surgery. See July 2021 Board Decision. However, the October 2021 VA examiner did not specifically address the evidence as directed. Instead, the examiner stated that "all cited evidence has been reviewed and taken into account." However, the Board finds that this broad statement regarding the evidence does not comply with the Board's July 2021 remand directives because it does not provide any explanation regarding whether the post-surgery clinical findings and complaints may be considered to be "normal" following the May 2002 cataract surgery or whether the post-surgical manifestations led to the development of CRVO and/or NVG. Therefore, the Board finds that an additional remand is necessary. Additionally, the Board finds that it cannot adjudicate this claim without further clarification regarding the etiology of the Veteran's CRVO and NVG conditions. Specifically, it is still unclear whether the October 2021 VA examiner agreed with Dr. N. Cardona's finding that the rise in intraocular pressure caused the Veteran's conditions. See June 2015 Private Medical Opinion. If this is the case, further clarification is required regarding if the Veteran was directed by the VA to discontinue the steroids or stopped using them on his own. The Veteran was also diagnosed with CRVO and NVG in March 2003, but a September 2004 VA treating doctor found that there was no evidence of diabetic changes in his right eye. See September 2004 VA Treatment Record. Although the VA examiners continually opined that the Veteran's conditions are related to his diabetes condition, there was no finding of diabetic retinopathy until November 2005, more than three years after the surgery. See November 2005 VA Treatment Record. Therefore, the Board requires clarification as to whether if the Veteran's diabetes caused his CRVO and NVG conditions, there would be diabetic changes or diabetic retinopathy found his right eye prior to these diagnoses. Moreover, it is unclear whether the examiners opined that the Veteran's complaints of pain and blurred vision were normal residual effects of the May 2002 surgery or were early manifestations of his CRVO and NVG conditions, due to the May 2002 surgery. See VA Treatment Records dated May 2002, June 2002, July 2002, September 2002, and October 2002. Relatedly, it is unclear whether the VA examiners believe that the post-surgery clinical findings of dilation, cornea edema, scattered retinal hemorrhages with tortuous veins, macular edema, and rubeosis of the iris were related to the May 2002 surgery and were early manifestations of his eye conditions due to the May 2002 surgery. Id. Based on the foregoing deficiencies, the Board finds that the VA medical opinions are inadequate for adjudicative purpose. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008); see also Stegall, 11 Vet. App. at 268. Accordingly, the Board finds that an addendum opinion is warranted. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his right eye vision loss, CRVO, and NVG disabilities. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Obtain updated and/or outstanding relevant treatment records (VA and private) if any, dating since the May 2002 surgery. 2. Notify the Veteran that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. §5109 regarding the issue of entitlement to compensation under 38 U.S.C. §1151 for right eye vision loss associated with a May 2002 cataract surgery. 3. Then, pursuant to 38 U.S.C. §5109, forward the Veteran's claims file to a non-VA, independent medical expert in the field of ophthalmology. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. Thereafter, the expert should address the following: (a.) Is the Veteran's right eye vision loss, CRVO, or NVG the result of the May 2002 surgery? Please explain why or why not, specifically considering and discussing the relevant evidence of record. (b.) Is the Veteran's right eye vision loss, CRVO, or NVG proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? Please explain why or why not, specifically considering and discussing the relevant evidence of record, to include but not limited to that outlined below. (c.) If you find that the Veteran's right eye vision loss, CRVO, and NVG were not caused by the May 2002 surgery, please provide a well-explained etiology of these conditions. The expert should address the following: i. Please opine whether the Veteran's right eye vision loss, CRVO, or NVG were caused by or whether the risk of these conditions was increased due to a rise of intraocular pressure in the right eye. See June 2015 Private Medical Opinion and October 2021 VA Medical Opinion. ii. Please opine whether the rise in intraocular pressure was due to the Veteran's discontinuation of the use of steroids. See June 2015 Private Medical Opinion. iii. Please comment as to whether the Veteran was directed to discontinue the use of steroids or whether he stopped on his own volition. See June 2002 VA Treatment Record. iv. If you opine that the Veteran's right eye vision loss, CRVO, or NVG are related to his diabetes mellitus condition, please address why there were no diabetic changes or diabetic retinopathy found prior to his diagnosis of CRVO or NVG or immediately following the diagnoses. See September 2004 and November 2005 VA Treatment Records. (d.) The expert is also asked to specifically address the below listed evidence and opine whether i. the Veteran's complaints of eye pain and blurred vision, and findings of dilation, cornea edema, and "SINGLE FLAME HEMEOD RETINA" post operatively in May, June, and July of 2002, to include the timing of the complaints and findings with respect to the May 2002 surgery; ii. the findings of scattered retinal hemorrhages with tortuous veins, macular edema, and rubeosis of the iris in October 2002, to include the timing of those findings with respect to the May 2002 surgery; iii. the post-operative treatment, to include the significance of a June 2002 notation of abrupt withdrawal from steroids as contributing to the Veteran's complaints; iv. the February 2009, April 2016, and August 2016 VA opinions; and v. the June 2016 hearing testimony and opinion from a private ophthalmologist. A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.