Citation Nr: 21041199 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-01 000 DATE: July 8, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for optical headaches, to include as secondary to the eye disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1981 to July 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. Although the Veteran's VA treatment records indicate that the consent forms for his eye procedures are available in VistA Imaging, the forms have not been associated with the claims file. Upon remand, these consent forms should be associated with the claims file. The record also indicates that the Veteran received private eye treatment from Dr. R.C. in approximately June 2009. A July 2014 VA treatment note indicates that he received treatment from a private ophthalmologist, but that a scanned report was available. Upon remand, an attempt should be made to obtain these and any other relevant private treatment records. The Veteran's representative has stated in a March 2021 brief that not all of the documents submitted in connection with the Veteran's May 2016 correspondence are included in the record. Upon remand, the Veteran should be asked to re-submit any documents that are not associated with the record, as referenced in the brief. The VA examinations of record do not clearly provide the opinions necessary to decide these claims. The August 2014 VA examination found that it is at least as likely as not that the Veteran's current found bilateral eye condition was proximately caused by or the result of the eye surgical care at the Durham VA Medical Center, but has not discussed whether the period of time when the Veteran was on a wait list unable to get the eye care he requested, as opposed to the surgeries themselves, proximately caused the Veteran's eye disabilities. A May 2015 VA examination found that it has been determined that the medical and surgical care provided to this patient met the usual and customary standard of care and that there was no breach of care, only loss of vision, after multiple ocular surgeries for retinal detachment and cataract. However, the examiner did not address the Veteran's contention that he was forced to wait many months for an appointment. This is particularly unfortunate considering that the examiner noted that the Veteran's prognosis was limited due to not seeking care earlier. Upon remand, a supplemental opinion should be obtained that considers this and the Veteran's other specific contentions. 3. Entitlement to compensation under 38 U.S.C. § 1151 for optical headaches, to include as secondary to the eye disabilities is remanded. The January 2015 VA examination declined to provide the requested opinion because of the examiner's lack of expertise in the area. The May 2015 examination briefly noted that severe headaches have no relation to retinal detachment surgery or cataract surgery, but did not clearly provide the requested opinion. Upon remand, a new opinion should be obtained that indicates whether the Veteran's headaches are a disability sustained as a result of the eye care and surgery provided by the VA, including the wait of many months between when the Veteran sought treatment and when he was able to get an appointment. The matters are REMANDED for the following actions: 1. Obtain the informed consent documents from any VA eye procedure performed on the Veteran, including the October 2006, February 2007, July 2007, January 2009, and August 2009 informed consent documents noted in the VA treatment records as accessible through VistA Imaging. 2. Obtain any scanned records for non-VA eye care, including the private ophthalmology treatment referenced in a July 2014 VA treatment note. Associate these records with the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for Dr. R.C., the specialist referenced in a June 2009 VA treatment note and any other relevant eye treatment, including any private treatment whose records are not obtained from the VistA Imaging record. Make two requests for the authorized records from any facility identified by the Veteran unless it is clear after the first request that a second request would be futile. 4. Request that the Veteran re-submit documents accompanying his May 2016 correspondence that have not been associated with the claims file, as indicated by the March 2021 brief by the Veteran's representative. 5. After completing the above, obtain an addendum opinion as to whether VA treatment, including a delay in providing the Veteran an appointment, caused additional disability. The clinician is asked to answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran sustained additional right and/or left eye disability as the result of VA medical treatment, to include failure to provide the Veteran with an eye appointment until nine months after he requested one? The clinician is advised that the record reflects that the Veteran was put on a wait list for an eye appointment in January 2006, a second request for an eye exam in May 2006 was met with the response that the Veteran was on the wait list, and the Veteran was not seen at the eye clinic until October 2006. In October 2006 the Veteran reported flashes for at least one year. The clinician is asked to reconcile his or her opinion with the May 2015 medical opinion stating that the Veteran's prognosis was limited due to his not seeking care earlier when the flashes developed and that retinal detachment surgery has the best outcome when performed as soon as possible after the retina detaches. (b.) If additional disability is found due to the period of time on a wait list before the Veteran obtained treatment, is it at least as likely as not (50 percent or greater probability) that any such additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing medical treatment, OR due to an event not reasonably foreseeable? The clinician must reconcile his or her opinion with the December 2012 opinion from Dr. J.T. stating that it appears VA was negligent in responding in a timely manner to the Veteran's request for an eye exam. (c.) If the answer to questions (a) or (b) are no for any additional eye disability, the clinician is asked to provide an opinion regarding the Veteran's surgical care itself as opposed to the delay in treatment. An August 2014 medical examination found that it is at least as likely as not that the Veteran's current found bilateral eye condition was proximately caused by or the result of eye surgical care at the Durham VA Medical Center. With respect to the eye surgeries themselves, as opposed to delay in treatment, the clinician is asked to determine if the Veteran's additional found bilateral eye condition is at least as likely as not (50 percent or greater probability) the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing medical treatment, OR due to an event not reasonably foreseeable? The clinician must address the Veteran's specific contentions, including: i) that in October 2006 he was only examined by an inexperienced resident who he believes was not properly supervised, and did not see an attending physician; ii) that this resident incorrectly stated that the Veteran would go blind if he did not have surgery in spite of the fact that the Veteran believes the record reflects his eye injury had healed on its own at that point, and that the resident badgered the Veteran into having an unnecessary surgery; iii) that the surgeries were more complex than the resident's examination had indicated, resulting in a more complicated procedure than expected; and iv) that the Durham VA Medical Center did not communicate effectively with the Duke Clinic that provided some of the Veteran's treatment. Each opinion offered must be supported by a complete rationale. 6. After completing instructions 1-4, obtain an addendum opinion from a qualified clinician regarding the Veteran's optical headaches. The clinician is asked to provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran sustained additional disability of optical headaches as a result of VA medical treatment, to include i) a delay in treatment between January 2006, when the Veteran first requested an eye examination and was put on a wait list, and October 2006, when the Veteran was seen at an eye appointment; or ii) the eye surgeries that the Veteran received at VA? (b.) If any additional headache disability is found, is it at least as likely as not (50 percent or greater probability) that any such additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing medical treatment, OR due to an event not reasonably foreseeable? The clinician must address the Veteran's specific contentions, including: i) that VA negligently put the Veteran on a wait list in January 2006 but did not provide him an eye examination until October 2006; ii) that in October 2006 he was only examined by an inexperienced resident who he believes was not properly supervised, and did not see an attending physician; iii) that this resident incorrectly stated that the Veteran would go blind if he did not have surgery in spite of the fact that the Veteran believes the record reflects his eye injury had healed on its own at that point, and that the resident badgered the Veteran into having an unnecessary surgery; iv) that the surgeries were more complex than the resident's examination had indicated, resulting in a more complicated procedure than expected; and v) that the Durham VA Medical Center did not communicate effectively with the Duke Clinic that provided some of the Veteran's treatment? Each opinion must be supported by a complete rationale. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.