Citation Nr: 22017159 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-05 094A DATE: March 24, 2022 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional right eye disability is remanded. REASONS FOR REMAND The Veteran had active naval service from July 1963 to November 1964. This matter comes before the Board of Veterans' Affairs (VA) on appeal from a March 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2022, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board finds that additional development is required before the issue on appeal is decided. In this case, the Veteran maintains that his right eye blindness was caused by cataract surgery performed at the August VA Medical Center (VAMC) on August 26, 2013, and either was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or was an event not reasonably foreseeable. See 38 U.S.C. § 1151. Initially, the Board notes that a remand is necessary to obtain outstanding VA and private records. VA treatment records dated in June 2013 and August 2013 indicated that informed consent was obtained prior to the surgery and that the full consent documents can be accessed through Vista Imaging. Those documents, however, have not been associated with the claims file. In addition, while the August 26, 2013, VA operation report was obtained, the surgical and nursing notes have not been associated with the claims file. The Board also notes that the Veteran received non-VA care on a fee basis. On October 21, 2013, he was seen at the Retina Eye Center, and the medical records were scanned into the Computerized Patient Records System (CPRS). He was also seen by a private ophthalmologist in August 2014 and March 2017. Those records were also scanned into CPRS but have not been associated with the claims file. Furthermore, the Board finds that a remand is necessary for an additional VA medical opinion. In January 2021, a VA examiner noted that the Veteran had optic neuropathy of the right eye. She initially opined that the claimed condition was not caused by the cataract surgery, but then stated as rationale that there was loss of vision due to cataract surgery. In a June 2021 addendum opinion, she opined that the cataract surgery did not cause the blindness in the right eye and that the blindness was due to optic atrophy, which occurred prior to cataract surgery. She provided only conclusory rationale for her seemingly contradictory opinions. In January 2022, a private ophthalmologist, Dr. D.M., opined that "[the Veteran] suffered ischemic optic nerve damage in his right eye while undergoing cataract surgery in the right eye. The retrobulbar anesthetic injection just before surgery caused the supplying arterial supply of nutrients and oxygen to be so severely compromised to cause optic nerve infarction. This was certainly not expected outcome with cataract surgery, and one must conclude that the anesthesia care giver must have placed the end of his needle either inside the nerve or very close to the nerve." As the January 2021 VA examiner did not provide adequate rationale for her opinions and did not address the January 2022 opinion by Dr. D.M., the Board finds that an additional VA medical opinion is necessary. Finally, the Veteran has argued lack of proper skill and raised questions as to the qualifications of the surgeon who performed the surgery. His representative indicated that the physician who performed the surgery was not licensed until July 10, 2014, after the surgery was performed. The evidence indicates that the surgery was performed by Dr. S.G., an ophthalmology resident, and that an attending surgeon, Dr. D.K., was also present. Therefore, the Board finds that a remand is necessary to obtain information regarding their qualifications and to provide that information to the Veteran and his representative. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with information regarding the qualifications of the physicians who performed and attended the August 26, 2013, surgery, including Drs. S.G. and D.K. Information should include copies of their curriculum vitae (CV), licensure information, or other information regarding their qualifications. If the information requested is not available, then the Agency of Original Jurisdiction (AOJ) should advise the Veteran and note the reasons for such in the record. 2. Contact the Augusta VAMC and obtain and associate with the claims file all outstanding records of treatment pertaining to the Veteran's right eye cataract surgery, to include: a) all informed consent documents pertaining to the August 26, 2013, cataract surgery (June 2013 and August 2013 full consent documents may be accessed from the Tools menu in Vista Imaging Display); b) all surgical and nursing notes pertaining to the August 26, 2013, cataract surgery; and c) non-VA care received on a fee basis in October 2013, August 2014, and March 2017 (documents located in CPRS Vista Imaging). 3. Then, obtain a VA medical opinion from an examiner with sufficient expertise to determine the nature and etiology of the Veteran's claimed right eye blindness. If possible, the opinion should be provided by an ophthalmologist. The claims file must be made available to and reviewed by the examiner. Based on a review of the record, the examiner should state whether the Veteran has an additional right eye disability as a result of the August 26, 2013, cataract surgery. If there is additional disability, the examiner should state whether the additional disability was: 1) due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or, 2) an event not reasonably foreseeable. In rendering the above opinion, the examiner should specifically address the January 2022 private ophthalmologist's opinion that the Veteran suffered ischemic optic nerve damage in his right eye as a result of the August 2013 surgery; that the retrobulbar anesthetic injection caused the arterial supply of nutrients and oxygen to be so severely compromised to cause optic nerve infarction; that it was not an expected outcome of the cataract surgery; and that the anesthesia care giver must have placed the end of his needle either inside the nerve or very close to the nerve. A rationale for all opinions expressed must be provided. 4. Confirm that the VA examination report, and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.