Citation Nr: 21029451 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-42 064 DATE: May 13, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness, to include detached retina, glaucoma, and cataract, due to VA medical treatment is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to September 1977 and from February 1978 to May 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In May 2019, the Board remanded the case to the RO for additional development. The Board recognizes that the Veteran's representative, in a March 2021 statement, attempts to raise a claim that the Veteran's right eye disabilities resulted from his service. Claims for service connection and claims seeking compensation under § 1151 are separate and distinct claims for VA benefits. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) (noting there is a legal distinction between filing a claim for service connection under 38 U.S.C. § 1110 and a claim for compensation under § 1151, and that an appellant may therefore have two separate claims for the same condition). Accordingly, if the Veteran wishes to pursue a claim for an eye disability directly resulting service, the Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. A previous remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2019 remand, the Board directed VA to obtain surgical records for the Veteran's right eye as well as complete, signed consents for such surgeries. After the remand, the RO has obtained some operation reports and some informed consents, not necessarily from the same operation. Crucially, there is no OR report and informed consent from the first operation in May 2010. In reviewing the record after remand, the Board notes that many of the surgeries, including the May 2010 operations, are available in VA's VISTA imaging system. It appears the surgeries occurred at private facilities, not VA facilities. Specifically, the surgeries may have been performed at facilities connected to Tulane University: Tulane Medical Center and Tulane Lakeside. The record contains one report from a 2011 operation at Tulane Medical Center, but it is not clear if other records are available. Therefore, upon remand, records from both Tulane Medical Center and Tulane Lakeside, including all operative reports and signed informed consents, should be obtained. Ongoing medical records should also be obtained. In addition, the VA examiner's opinion is incomplete. Although requested by the Board's remand, the examiner did not address the Veteran's contentions. This includes his testimony that, as far back as 2004, equipment malfunctioned at the VA Hammond Outpatient Clinic. This prevented his VA providers from obtaining pictures of the right eye. A private medical provider told the Veteran this resulted in a general delay in treatment and surgery and too much pressure in his eye built up. By the time the pressure was treated, it was too late to save the vision in his right eye. On remand, the September 2020 VA examiner stated the eye disabilities are progressive, but did not explain how any alleged delay did not cause or contribute the Veteran's right eye vision loss. As the Board understands the Veteran, he is asserting that had his care providers intervened earlier, his eye disabilities would not have progressed to the point where he lost his vision despite treatment. Further, the VA examiner stated the Veteran elected to address his cataracts first and then his detached retina. Based upon the Board's review, it appears the detached retina was addressed first, starting with the May 2010 operation, and then later, he received cataract treatment including lens replacement. The Board has therefore determined that new opinions should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his 1151 claim for right eye disabilities. All identified VA records should be added to the claims file. All other properly identified records, including records from Tulane Medical Center and Tulane Lakeside, should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the claims file should be sent to an appropriate examiner to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right eye had its onset as a result of VA related VA treatment and/or surgeries, to include retinal detachment, glaucoma, and cataract of the right eye. In offering the opinion, the examiner is asked to consider and discuss: a) Is it at least as likely as not that the Veteran incurred any additional right eye disability due to VA treatment and/or surgeries? If so, please describe the nature and degree of the additional disability. It would be helpful to the Board if the examiner provides the etiology of the Veteran's right eye retinal detachment, glaucoma, and cataract. b) If any such additional disability did result from the VA treatment and/or surgeries, was the proximate cause of any such disability or aggravation the result of either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment or (ii) an event not reasonably foreseeable. c). The examiner is asked to specifically discuss the Veteran's contentions including malfunctioning equipment at the Hammond Outpatient Clinic that malfunctioned or did not work for many years. According to the Veteran, this prevented pictures of his right eye demonstrating his disabilities. The examiner should also address whether there was a general delay in treatment and surgery which allowed the pressure in his eye to build up to the point where treatment could no longer prevent the right eye vision loss. The examiner should consider the Veteran's full history and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should render all medical opinions based on review of the record. If necessary, the examiner should review any operation reports and informed consents on Vista Imaging and so state in the report. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.