Citation Nr: 22015087 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-43 068 DATE: March 16, 2022 REMANDED Entitlement to compensation for a bilateral eye disability, to include based on such disability being service-connected (incurred or aggravated is service) and/or (for a left eye disability) under U.S.C. §1151 (as resulting 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 a Veterans Law Judge (VLJ) who has since retired; a transcript is in the record. In a January 2022 letter, the Veteran was advised of his right to a hearing before a VLJ who would decide the matter. He did not respond and is considered to have declined an additional hearing. In September 2019, August 2020, March 2021, and July 2021, the Board remanded the case for additional development. Unfortunately, there has not been substantial compliance with the Board's July 2021 remand directives, and another remand is required. Stegall v. West, 11 Vet. App.268, 271 (1998). At the outset, the Board notes that in its July 2021 remand, it directed that the Veteran's record be forwarded to an ophthalmologist (other than the March 2021 consulting provider (who also provided the December 2020 opinions) for review and an advisory medical opinion regarding the likely etiology of his bilateral eye disabilities. However, as explained in more detail below, the Veteran's record was forwarded to the same provider, and the Board finds that the additional October 2021 opinions are, in part, individually inadequate and also cumulatively inadequate (when evaluated in conjunction with the previous opinions) due to internal inconsistencies and inconsistencies among the various opinions. Therefore, remand is necessary to obtain clarification regarding the findings in the December 2020, March 2021, May 2021, and October 2021 opinions. In a March 2021 remand, the Board indicated that the December 2020 provider 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 105mm 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 the 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 were found to be inadequate because they were contradictory, cursory, and relied primarily on the lack of documentation of eye problems during service. The Board also found, regarding the Veteran's left eye claim under 38 U.S.C. §1151, that the December 2020 opinions were inadequate because (as noted above) the Veteran was not asked to identify all current left eye problems he believed resulted from (were additional disability due to) his March 2016 VA left eye cataract surgery (and there was 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, a June 2016 VA treatment record notes that he reported a "bubble" and a noticeable drop in visual acuity between April and June 2016. A July 2021 Board remand notes that the March 2021 remand specified that the examiner should interview the Veteran (via telephone, if not in person), eliciting from him his theory of entitlement to service connection for bilateral eye disabilities (the manner by which any current eye disabilities are related directly to his service, to include whether he still maintains that worsening bilateral vision is from a "flash" from the 105mm gun (while looking through a 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 March and May 2021, and the provider did appear to review the Veteran's claims file, it was clear that the provider did not interview the Veteran (at the very least by phone) to elicit the above, critical, information. Regarding service connection for a bilateral eye disability, a consulting provider (in a March 25, 2021, opinion) opined that such disability was at least as likely as not related to the Veteran's service. She explained that the eye disabilities of bilateral vitreous detachment were a continuation of and at least as likely as not incurred or caused by the bilateral eye disability of posterior vitreous detachment noted in service. The provider then seemingly clarifies that opinion in an additional March 25, 2021, opinion opining that a left eye disability was at least as likely as not related to service, but a right eye disability was less likely than not related to service because it was more likely due to the natural aging process and not a result of the cataract surgery. However, in additional March 25, 2021, opinions, the provider opined that the Veteran's worsening bilateral vitreous detachment was less likely than not due to the flash from a 105 mm gun and from the reflection of the light off the ice and snow in winter making it hard to see but was at least as likely as not due to the March 2016 VA left eye cataract surgery. She explained that the onset of the eye disability was after the cataract surgery and that posterior vitreous detachment was more common after cataract surgery due to postoperative inflammation. The provider also opined that it was less likely than not that a left eye disability (posterior vitreous detachment following a VA surgical procedure) 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 as the onset of a posterior vitreous detachment is a common known sequalae with the natural aging process and post cataract surgery due to postoperative inflammation. The Regional Office (RO) sought clarification regarding the March 2021 opinions, and in an May 2021 addendum, the consulting provider indicated that the left eye diagnosis was posterior vitreous detachment which was a common sequala from cataract surgery (as noted in an article mentioned in the addendum) and was commonly due to the natural aging process. The opinions were found to be inadequate because they were conflicting, cursory, and lacked adequate explanation. The Board also found, regarding the Veteran's left eye claim under 38 U.S.C. §1151, that the March (and May) 2021opinions were inadequate because (as noted above) the Veteran was not asked to identify all current left eye problems he believes resulted from (were additional disability due to) his March 2016 VA left eye cataract surgery (and there was no indication that an attempt was made to interview the Veteran or that such interview was declined). Additionally, one of the opinions indicated that the onset of the eye disability was after the cataract surgery and that posterior vitreous detachment was more common after cataract surgery due to postoperative inflammation. However, in another March 2021 opinion, the provider contradicted her own opinion by opining that the eye disabilities of bilateral vitreous detachment were a continuation of and at least as likely as not incurred or caused by the bilateral eye disability of posterior vitreous detachment noted in service. A July 2021 Board remand also directed that a consulting provider was to 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 by which current eye disabilities are related directly to his service, to include whether he still maintains that worsening bilateral vision is from the "flash" of a 105mm gun (while looking through a range finder) and from reflection of light off 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. However, although an September 2021 eye disability benefits questionnaire (DBQ) appears to indicate that the Veteran appeared in person for the examination, the examiner only notes that the Veteran described poor vision that has resulted from cataract surgery that occurred in 2016 and that he felt that his procedure and follow up were not adequate. Therefore, it does not appear that the examiner was responsive to the Board's directives. Further, the examination was completed by an optometrist then the file was forwarded to an ophthalmologist who provided the October 2021 opinions based only on a review of the Veteran's record. In an October 2021 opinion, the provider opined that it was less likely than not that the Veteran had worsening bilateral vision from the flash of a 105 mm gun and reflection of the light off of ice and snow in winter (making it hard to see), as such diagnosis and symptoms would be temporary unless there were finding of solar retinopathy which he does not have. She further opined that it was at least as likely as not that the Veteran's left eye posterior vitreous detachment (PVD) was a result of the cataract surgery and most likely resulted from the cataract surgery, which was rather common and accounted for the reported floaters. However, it was also opined that the PVD would not account for the severe loss of acuity and visual field constriction as reported by the Veteran on the February 2020 examination and that no other diagnosis was a result of the 2016 left eye cataract surgery. In an additional October 2021 opinion, the provider indicated that the right eye cataract resulted in blurred vision and reduced visual acuity, the left eye pseudophakia was asymptomatic, the left eye epiretinal membrane (macular pucker) resulted in reduced visual acuity, and the right and left eye PVD might result in the symptoms of floaters or spots in both eyes. In separate October 2021 opinions, the provider opined that the right eye cataract and left eye pseudophakia were less likely than not due to the Veteran's service, that the left eye pseudophakia occurred after the 2016 cataract surgery, and that the left eye pseudophakia, left eye macular pucker, and right eye cataract were most likely due to natural aging progression. The provider further opined that the left eye PVD with symptomatic floaters was at least as likely as not due to the 2016 cataract surgery because PVD is a common and well-known occurrence due to cataract surgery, the PVD would not result in significant reduction in visual acuity or reduced visual field, and that the right eye PVD was most likely due to natural aging progression. In an additional October 2021 opinion that considered the Veteran's 38 U.S.C. §1151 claim, the provider opined that there was no left eye disability that was determined to be an additional disability shown (following or related to) VA surgical or medical treatment and that it was less likely than not 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. She explained that the left eye cataract implant was centered and aligned and showed no sign of any complications during cataract surgery, there was no documentation of any complications in the surgery report, none of the treatment during the surgery or after involved carelessness or negligence, and seemed to comply with the standard of care, and there did not appear to be any fault on the part of VA in the care provided. The provider further indicated that the left eye PVD and left eye macular pucker were foreseeable events that commonly occurred in patients that underwent cataract surgery. Regarding the Veteran's 38 U.S.C. §1151 claim, the provider further opined in another October 2021 opinion, that the left eye PVD was at least as likely as not reasonably foreseeable and was a consequence of the 2016 left eye cataract surgery since PVD is a common occurrence that may result in the symptom of mild floaters. The Board finds that the October 2021 opinions are inadequate for multiple reasons. It was noted that left eye macular pucker resulted in reduced visual acuity, and an additional opinion indicated that such macular pucker was not incurred in service but was due to natural age-related progression. However, another opinion notes that left eye macular pucker was a foreseeable event and also commonly occurred in patients who underwent cataract surgery, but additional symptoms were not addressed. Since the same provider notes that the left eye decreased visual acuity was due to the macular pucker, clarification is needed regarding the etiology and whether the severity of the decline in visual acuity is a reasonably foreseeable consequence of the left cataract surgery. The Board notes that in August 2016 (post March 2016 cataract surgery) the Veteran's visual acuity was 20/20 in both eyes with correction, and his visual acuity is currently 5/200 in each eye corrected and uncorrected. Also, regarding the Veteran's 38 U.S.C. §1151 claim, the provider opined that there was no documentation of any complications in the surgery report. However, as noted above, in a June 2016 VA treatment record, the Veteran reported a "bubble" and a noticeable drop in visual acuity shortly after the surgery, between April and June 2016, and such visual acuity appears to have continued to worsen since that time. See February 2020 and September 2021 DBQs. Therefore, remand is necessary to obtain addendum opinions that clarify the findings in the December 2020, March and May 2021, and October 2021 opinions. [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).] The matter is REMANDED for the following: Return the Veteran's record to the October 2021 VA consulting provider (or to another appropriate provider (preferably an ophthalmologist) if the October 2021 provider is not available) for further review and addendum medical opinions regarding the likely etiology of his 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 (preferably via telephone, due to his advanced age), specifically eliciting from him his theory of entitlement to service connection for bilateral eye disabilities (i.e., what he believes is the manner by which current eye disabilities are related directly to his service, to include whether he still maintains that worsening bilateral vision is from the "flash" of a 105mm gun (while looking through a range finder) and from reflection of light off ice and snow in winter (making it hard to see), (keeping in mind that the Veteran's STRs are fire-related and unable to be reviewed) 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 the Veteran declines to be interviewed (in person or by phone) the attempts to contact the Veteran must be clearly documented in his record]. (b) Note the Veteran's responses (specifically via interview and in the record) 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) Review the December 2020, March and May 2021, and September 2021 opinions and express agreement or disagreement (and explain the rationale for the agreement or disagreement) with the complete findings (pathology, manifestations, impairment) with respect to each eye, and identify the underlying diagnostic entity(ies) they reflect in each opinion. Account for all complaints elicited from the Veteran or shown by the record and/or reflected in each opinion. (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. Additionally, the provider should review the December 2020, March and May 2021, and September 2021 opinions (specifically the response to this directive in such opinions) and express agreement or disagreement (and explain the rationale for the agreement or disagreement) with the opinions. (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). Additionally, review the December 2020, March and May 2021, and September 2021 opinions (specifically the response to this directive in such opinions) and express agreement or disagreement (and explain the rationale for the agreement or disagreement) with the opinions. (f) Regarding all left eye disabilities (pathology, manifestations, impairment) found, opine (regarding each) whether they at least as likely as not are 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., and the Veteran's report of a "bubble" and a noticeable drop in visual acuity shortly after the surgery, between April and June 2016). Additionally, review the December 2020, March and May 2021, and September 2021 opinions (specifically the response to this directive in such opinions) and express agreement or disagreement (and explain the rationale for the agreement or disagreement) with the opinions. (g) Regarding any left eye disability that is determined to be additional disability shown 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. Additionally, review the December 2020, March and May 2021, and September 2021 opinions (specifically the response to this directive in such opinions) and express agreement or disagreement (and explain the rationale for the agreement or disagreement) with the opinions. (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 and 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 of whether the particular surgical risk was noted on an operative consent form signed). Specifically address whether the severity of the decline in visual acuity is a reasonably foreseeable consequence of the left cataract surgery and review the December 2020, March and May 2021, and September 2021 opinions (specifically the response to this directive in such opinions) and express agreement or disagreement (and explain the rationale for the agreement or disagreement) with the opinions. All opinions must include rationale that cites to factual/clinical data and medical principles and address the Veteran's stated allegations/beliefs. The provider 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. John R. Doolittle, II 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.