Citation Nr: 21014193 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-43 068 DATE: March 11, 2021 REMANDED Entitlement to compensation for a bilateral eye disability, to include based on such disability is service-connected (incurred or aggravated is service) and (for a left eye disability) under U.S.C. §1151 (claimed to have resulted from left eye cataract surgery at the Salisbury VA Medical Center in March 2016), is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1954 to February 1957. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision. In September 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2019 and August 2020, the Board remanded the case for additional development. Unfortunately, there has not been substantial compliance with the Board’s August 2020 remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2020 remand specified that the examiner should interview the Veteran (via telephone, if not in person), specifically eliciting from him his theory of entitlement to service connection for bilateral eye disabilities (what he believes is the manner in which any current eye disabilities are related directly to his service, to include whether he still maintains that worsening bilateral vision could be from a “flash” from the 105 mm gun (while looking through the range finder) and from light reflection off the ice and snow in winter (making it hard to see), and all current left eye problems that he believes resulted from (are additional disability due to) his March 2016 VA left eye cataract surgery. Although multiple VA opinions were completed in December 2020, and the provider did appear to review the Veteran’s claims file, it is clear that the provider did not interview the Veteran (at the very least by phone) to elicit the above, critical, information. Additionally, regarding service connection for a bilateral eye disability, a consulting provider (in a December 10, 2020 opinion) opined that such disability was less likely than not related to service. She explained that a right cataract, left epiretinal membrane, and right eye posterior vitreous detachment developed during active duty and were related to normal aging progression. She indicated that left eye pseudophakia developed during active duty and was related to normal aging progression as a result of the development of an age-related cataract in the left eye that required treatment with cataract surgery, and left eye posterior vitreous detachment developed during active duty, was related to normal aging progression, and may have been aggravated into earlier onset by cataract surgery. In an addendum (December 24, 2020) opinion, the provider clarified her earlier service connection opinion and opined that a bilateral eye disability was less likely than not due to flash from a 105 mm artillery gun and from the light reflection off the ice and snow in winter (making it hard to see) because there was no evidence in service treatment records (STRs) to support this claim. She also indicated that it was at least as likely as not the diagnosed conditions are due to the normal aging process. The opinions are inadequate because they are contradictory, cursory, and rely primarily on the lack of documentation of eye problems during service. [The Board acknowledges, although the provider did not specifically note, that this is a fire-related case, and that the Veteran’s entire STRs are unavailable. When, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).] Regarding the Veteran’s left eye claim under 38 U.S.C. §1151, the December 2020 opinions are inadequate because (as noted above) the Veteran was not asked to identify all current left eye problems he believes resulted from (are additional disability due to) his March 2016 VA left eye cataract surgery (and there is no indication that an attempt was made to interview the Veteran and that such interview was declined). Additionally, one of the opinions indicated that a review of the records failed to show any signs of complications from the Veteran’s cataract surgery; however, he reported a “bubble” and a noticeable drop in visual acuity between April and June 2016. Therefore, remand for fully adequate medical advisory opinions regarding the etiology of his bilateral eye disability and addressing his claim under U.S.C. §1151 is necessary. The matter is REMANDED for the following: Arrange for the Veteran’s record to be returned to the December 2020 provider (if unavailable, to be forwarded to another ophthalmologist) for an advisory medical opinion to regarding the likely etiology of the Veteran’s bilateral eye disabilities. The Veteran’s record must be reviewed by the provider in conjunction with this medical opinion. The consulting provider is directed to: (a) Interview the Veteran (via telephone, if not in person), specifically eliciting from him his theory of entitlement to service connection for bilateral eye disabilities (i.e., what he believes is the manner in which any current eye disabilities are related directly to his service, to include whether he still maintains that worsening bilateral vision could be from the “flash” from a 105 mm gun (while looking through the range finder) and from reflection of light off the ice and snow in winter (making it hard to see), and to identify all current left eye problems he believes resulted from (are additional disability due to) his March 2016 VA left eye cataract surgery. [If another examination of the Veteran is deemed necessary to enable response to an opinion sought, such should be arranged.] (b) Note the Veteran’s responses stating his theory of entitlement to service connection for bilateral eye disabilities and all current left eye pathology and impairment he alleges has resulted from the March 2016 left eye surgery. (c) Note complete findings (pathology, manifestations, impairment) with respect to each eye, and identify the underlying diagnostic entity(ies) they reflect. Account for all complaints elicited from the Veteran. (d) Regarding each left and right eye disability entity diagnosed, opine whether it at least as likely as not (a 50 percent or greater probability) was incurred during the Veteran’s active service. The explanation for the opinion offered should account for each theory of entitlement elicited from the Veteran on interview. (e) If a diagnosed eye disability is determined to not have been incurred in service, identify the etiology that is considered to be more likely (and explain why that is so). (f) Regarding all left eye disabilities (pathology, manifestations, impairment) found, opine (regarding each) whether they at least as likely as not are an additional disability not shown prior to the Veteran’s left eye cataract surgery. Opine further whether they resulted from (are a consequence of) the surgery (specifically addressing the perceived changes in color vision, any changes in visual/fields or vision acuity, floaters, vitreous detachment, reports of flashing, etc.). (g) Regarding any left eye disability that is determined to be additional disability noted following/related to VA surgical or medical treatment, opine whether it is at least as likely as not (a 50 percent or greater probability) that such disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care and surgical or medical treatment. (h) If the response to (g) is no (there was no VA fault in the care provided) opine further whether it is at least as likely as not that the additional left eye disability is NOT a reasonably foreseeable consequence of the surgery/postoperative care the Veteran was provided. A consequence that is not “reasonably foreseeable” need not be completely unforeseeable or unimaginable but is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise (regardless whether the particular surgical risk was noted on an operative consent form signed). All opinions must include rationale that cites to factual/clinical data and medical principles, and addresses the Veteran’s stated allegations/beliefs. The examiner should note that absence of documentation of complaints or treatment of an eye disability during or after service cannot be the only basis for rejecting a possible nexus to service, but that identifying a likely etiology (beyond any assertion that there was an absence of documentation of the disability in or after service) may overcome this. The consulting provider is advised that a lack of documentation of an eye disability during service (particularly given that the Veteran’s STRs are unavailable) is not fatal to the claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.