Citation Nr: 21025100 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-50 392A DATE: April 27, 2021 REMANDED Entitlement to benefits under 38 United States Code § 1151, for additional disability resulting from left eye cataract eye surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to December 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to benefits under 38 United States Code § 1151, for additional disability resulting from left eye cataract eye surgery is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery, to include detached retina and decreased vision. The Veteran asserts entitlement to compensation for residuals of a left eye cataract surgery, to include detached retina and decreased vision in the left eye, under provisions of 38 U.S.C. § 1151. The Veteran contends that he has residuals of left eye cataract surgery that were the directly caused by VA treatment. The evidence of record shows that the Veteran had cataract surgery on the left eye in September 2010, at the VA Medical Center in Chicago. Subsequently, in December 2010, the Veteran began noticing progressive visual field loss in the left eye and was found to have retinal detachment. Corrective surgeries were performed in December 2010. The Veteran was scheduled for silicon oil removal in May 2011, where silicon oil was removed, and choroidal drainage of left eye was performed. In July 2017, VA requested a medical opinion regarding whether it is at least as likely as not that the claimed disability of residuals of left eye cataract surgery was caused by or became worse as a result of VA treatment; resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; resulted from an event that could not have reasonably been foreseen by reasonable healthcare providers; or resulted from a failure on the part of VA to timely diagnose and/or properly treat the claimed disability. Subsequently, in a July 2017 medical opinion, after review of the claims file, the examiner opined that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable health care provider. The examiner explained that retinal detachment can occur after cataract surgery, especially in the elderly. Retinal detachment was treated with silicone that was later removed. In 2014, the left eye was painful, with film in vision and excessive tearing. In 2016, the Veteran complained of double vision. In, July 2017, left eye vision was 20/100. The Board finds the July 2017 medical opinion to be incomplete as the examiner did not address all of the necessary questions regarding the § 1151 claim. While the examiner discussed whether or not the claimed disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare providers, the examiner did not address the claim as it pertains worsening as a result of VA treatment; carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; or failure on the part of VA to timely diagnose or properly treat the claimed disability. Therefore, the July 2017 VA examination is incomplete. The Board finds that is a pre-decisional duty to assist error. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Because the Veteran may have a disability that is related to VA treatment, the Board finds that remand is necessary to obtain a medical opinion to determine the nature and etiology of any left eye disability. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for the claimed left eye disabilities on appeal, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA eye examination with an appropriate clinician to assist in determining the etiology of any left eye disabilities, and any relationship to VA treatment. The examiner must review the record, including this Remand, the Veteran’s March 2021 hearing testimony, and VA clinical documentation dated in September 2010 establishing the diagnosis of and treatment for left eye cataract surgery, and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has any additional left eye disability, to include decreased vision and/or detached retina, as a result of VA treatment? (b.) Is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment to the Veteran? (c.) Is it at least as likely as not (50 percent or greater probability) that the additional eye disability is the result of an event not reasonably foreseeable? The examiner must discuss the significance of the September 2010 left eye cataract surgery as it pertains to the December 2010 left eye retinal detachment. Whether the proximate cause of any additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.