Citation Nr: 23005294 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 10-22 681 DATE: January 27, 2023 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right eye blindness, emergency surgery, pneumonia, and/or staph infection is remanded. REASONS FOR REMAND The Veteran had active service from September 1986 to July 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. In August 2019 and November 2019 correspondences, the Veteran was informed that the VLJ who conducted his hearing was no longer employed at the Board, and was asked to respond within 30 days if he desired another Board hearing. As no response was received the Board has assumed that the Veteran does not desire another hearing. In January 2020, September 2020, March 2022, and August 2022, the Board remanded the Veteran's claim for additional development; it now returns for further appellate review. In the August 2022 remand, the Board referred the issues of service connection for right eye blindness on a secondary basis. In this regard, the issue of entitlement to service connection for right eye blindness as secondary to service-connected sinusitis was raised in an undated statement. Additionally, as noted in the September 2016 and January 2020 Board remands, the issue of entitlement to service connection for right eye blindness as secondary to sarcoidosis was reasonably raised by the record. Accordingly, the issue of entitlement to service connection for right eye blindness, to include as secondary to service-connected disabilities, was referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Still, no evidence of record indicates that the AOJ has begun to adjudicate this referred issue. Accordingly, on remand, the issue should be adjudicated by the AOJ in the first instance. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right eye blindness, emergency surgery, pneumonia, and/or staph infection. Unfortunately, there still has not been substantial compliance with the Board's previous remand directives. In pertinent part, the March 2022 remand requested addendum opinions addressing whether the Veteran's right eye blindness, emergency surgery, pneumonia, and staph infection were the result carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA and/or due to an event not reasonably foreseeable. While addendum opinions were obtained in April 2022 and May 2022, the August 2022 remand noted that further clarification was required. Specifically, the opinions did not, as directed, acknowledge or address the evidence cited in the remand and several of the opinions contained typographical errors such as missing words that made the opinions ambiguous. Accordingly, the Board remanded for further clarification. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thereafter, addendum opinions were obtained in November 2022; however, such did not remedy any of the prior inadequacies identified in the last remand. Such opinions contain similar grammatical and syntactic errors to the previous opinions, to include incomplete sentences and missing words. It appears that either parts of the opinions were not included or the examiner failed to fully formulate the opinions. Next, the opinions only discussed the Veteran's right eye condition and failed to mention the emergency surgery, pneumonia, and staph infection as was required by the August 2022 Board remand instructions. Finally, the instructions required that the examiner should reconcile the apparently conflicting diagnoses of ischemic optic atrophy, ischemic optic neuropathy, optic neuritis, and retinal artery occlusion. However, the examiner's discussion centered around whether the Veteran's current eye condition constituted ischemic optic neuropathy or a manifestation of sarcoidosis, rather than one of the other conflicting diagnoses of record. Further, the August 2022 Board remand identified the possibility of outstanding relevant VA treatment records. In this regard, VA treatment records from August 18, 2015, June 23, 2011, December 16, 2010, October 27, 2010, December 7, 2007, September 28, 2007, June 26, 2007, April 4, 2007, October 17, 2007, October 12, 2006, October 11, 2006, September 29, 2006, September 23, 2006, September 20, 2006, December 21, 2005, and November 16, 2004, April 16, 2015, October 3, 2008, December 2, 2010, September 21, 2010, November 15, 2007, September 26, 2007, June 22, 2007, April 2, 2007, October 16, 2007, September 28, 2006, October 6, 2006, September 23, 2006, September 19, 2006, December 21, 2005, and November 15, 2004 ophthalmology, triage notes, consent documents, and medication records had been scanned into VistA Imaging. While three of these records (from December 2010, September 2007, and October 2006) were added to the record while on remand, it still does not appear that most of the referenced records have been associated with the claims file. Accordingly, the Board finds that there has not been substantial compliance with the Board's remand directives and, as such, another remand is required. Stegall, supra. Finally, as noted in multiple remands and supra, the issue of entitlement to service connection for right eye blindness has been raised by the record and must be adjudicated by the AOJ. As a decision on the referred issue could significantly affect the 38 U.S.C. § 1151 claim, the issues are inextricably intertwined. In this regard, the part of the Veteran's 38 U.S.C. § 1151 claim concerning right eye blindness will be moot if service connection for right eye blindness is granted on the secondary basis. The AOJ should take this into account and develop these claims accordingly. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records from November 2004 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. After adjudicating the referred service connection claim for right eye blindness, readjudicate the Veteran's 38 U.S.C. § 1151 claim. Forward the claims file to a clinician with the appropriate expertise to an appropriate examiner other than the November 2022 clinician for an opinion regarding the Veteran's claim for entitlement to benefits pursuant to 38 U.S.C. § 1151. If the clinician determines that an examination would be beneficial, one is to be provided. The clinician should opine on the following: (a) Is any residual of the Veteran's claimed right eye blindness, emergency surgery, pneumonia, and/or staph infection, a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment in September 2006? In offering this opinion, if the Veteran's right eye blindness has not been service-connected on a secondary basis, the clinician should clarify the diagnosis responsible for the Veteran's right eye blindness. Specifically, the clinician should reconcile the seemingly conflicting diagnoses of ischemic optic atrophy, ischemic optic neuropathy, optic neuritis, and retinal artery occlusion. (b) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (c) Was the proximate cause of the Veteran's right eye blindness, emergency surgery, pneumonia, and/or staph infection due to an event not reasonably foreseeable? In formulating the requested opinions, the clinician must consider all competent lay and medical evidence of record, including: (i) the VA medical records from September 2006 to the present; (ii) the medical records from Gwinnett Hospital System; (iii) the November 2006 Vision Impairment Residual Functional Capacity Questionnaire; (iv) the Veteran's competent lay statements regarding the onset and continuity of his symptomatology and his first-hand experience with VA medical treatment from September 2006 forward. Specifically, the clinician should address the Veteran's May 7, 2008, and May 17, 2010, assertions that VA failed to render timely treatment, that he was placed in a room with three other patients despite having a weakened immune system from being on steroids that affected his immune system, and that he was released from a VA facility with pneumonia and a staph infection without being properly checked out despite his reported symptoms; and (v) the January 2010 VA opinion noting that there was a rather large drop in the Veteran's vision between follow up in December 2006 when his vision was 20/300 and his next visit in 2007 where he had only light perception, followed by no therapeutic change or restarting of steroids in January 2007, which the Veteran claims might have prevented his vision loss. A complete rationale should be provided for all opinions and conclusions expressed. 3. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period should be allowed for response before the case is returned to the Board. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.