Citation Nr: 21012912
Decision Date: 03/05/21	Archive Date: 03/05/21

DOCKET NO. 16-09 988
DATE: March 5, 2021

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for poor vision, residuals of right eye surgery is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1962 to December 1964.  This matter came before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned Veteran’s Law Judge during a February 2019 hearing.  The transcript of the hearing is of record.  June 2019 and September 2020 Board decisions remanded the issue on appeal for further development.

Entitlement to compensation under 38 U.S.C. § 1151 for poor vision, residuals of right eye surgery 

The September 2020 Board decision requested a new VA examination to address the etiology of the Veteran’s dermatochalasis and the fact that a facial nerve block was not performed during the right eye cataract surgery.  

A November 2020 VA opinion was provided by an optometrist.  The provider stated that dermatochalasis was likely due to age-related changes, but then stated that if any damage was caused by any nerve block, it was beyond his knowledge of the steps of cataract surgery “as I am not an ophthalmologist.”  

As the provider clearly stated that he did not have the necessary qualifications or familiarity with the process of cataract surgery to offer an opinion regarding the steps of cataract surgery and the role of a facial nerve block, the opinion is inadequate and remand for a new opinion from a qualified provider is required.  The November 2020 opinion also specifically indicated that his ability to offer an opinion on cataract surgery was limited because he was not an ophthalmologist.  The record therefore indicates that an opinion from an ophthalmologist is required, and this should be obtained upon remand.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an ophthalmologist.   The provider should review the file and provide a complete rationale for all opinions expressed.

Please indicate whether the Veteran’s right eyelid dermatochalasis was proximately due to 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.  

The opinion should specifically address the Veteran’s report that a facial nerve block was performed during his left eye surgery but not during his right eye surgery.  If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 

2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Arnold

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.