Citation Nr: 21029310 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-05 535A DATE: May 13, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left eye condition due to VA medical treatment is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran entitlement to compensation under 38 U.S.C. § 1151 for a left eye condition. A Board hearing was held in September 2019. A transcript is of record. In December 2019 and June 2020, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Specifically, the Board remanded for additional records and a VA examination. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2020 remand, the Board instructed the AOJ to request and obtain all pre-operative records, to include all consent forms signed prior to the surgery. The AOJ added these records to the evidentiary record in June and July 2020. The Board also instructed the AOJ to obtain another opinion as to the Veteran's theory of entitlement. On remand, a clinician was to provide an opinion after a review of the record, to include informed consent documents and medical records indicating a complication by infection. Though a clinician provided an opinion after a review of the record in August 2020, the Board finds the opinion inadequate as inconsistent with medical records. Generally, the clinician opined that the Veteran's additional disability was less likely than not caused by his November 2009 surgerya shunt implant. See August 2020 VA examination report. He explained that: (a) the Veteran had uncontrolled glaucoma which has led to several glaucoma surgeries, cornea transplant, and vision loss; (b) edema is a common complication of uncontrolled glaucoma and glaucoma surgery; and (c) the Veteran's visual acuity worsened due to edema, improved after the cornea transplant, and worsened some time thereafter. Id. The examiner acknowledged the post-surgical complication described as an infection but stated that it "occurred more than 10 weeks" after the surgery. Id. However, the Veteran told his private physician and his VA physician that he had redness and pain in his left eye since the surgery. See April 2016 VA treatment records, January 2016 private medical records. The examiner does not explain why these symptoms were not indicative of an infection or edema within those 10 weeks. The examiner also stated that there "was no evidence [that the Veteran] followed up the next day as advised" and that the Veteran did not return for treatment until February 2010. See August 2020 VA examination report. However, VA treatment records show that the Veteran did come back for treatment the day after surgery, the week after surgery, and several times prior to February 2010. See April 2016 VA treatment records. As it appears that the examiner's opinion was not based on a full review of the medical record, a new opinion is needed. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriately qualified clinician an ophthalmologist, if possible. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: (a) Is it at least as likely as not that the Veteran's decreased visual acuity was the result of VA's failure to exercise the degree of care that would be expected of a reasonable healthcare provider? (b) If not, is it at least as likely as not that the Veteran's decreased visual acuity was the result of an event that was not reasonably foreseeable? Whether the proximate cause of a Veteran's claimed disability was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen and disclosed in connection with informed consent procedure as to the particular Veteran. The clinician must discuss (1) the Veteran's report of waking during the November 2009 surgery; (2) the documented post-surgical left eye infection; (3) the April 2013 private treatment records of Dr. M.M.; (4) the April 2010 entry describing that the post-operation course was "complicated by an infection;" and (5) the post-surgery follow-ups in the April 2016 VA treatment records, to include reports of pain and redness. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.