Citation Nr: 0115328 Decision Date: 06/04/01 Archive Date: 06/13/01 DOCKET NO. 00-13 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for loss of vision due to treatment received at VA Medical Center in October 1994. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from October 1942 to October 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. 2. The veteran was hospitalized at a VA Medical Center (VAMC) in October 1994 for eye surgery. 3. Competent medical evidence showing a nexus between the veteran's VAMC treatment and his loss of vision is not of record. 4. There is no evidence that the veteran developed loss of vision as a result of carelessness, negligence, and lack of proper skill, error in judgment or similar instance of fault on the part of the VA in furnishing his treatment. CONCLUSION OF LAW The requirements for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for loss of vision claimed to have developed as a result of treatment at a VAMC in October 1994 have not been met. 38 U.S.C.A. § 1151 (West 1991 & Supp. 2000); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C. § 5107); 38 C.F.R. § 3.358 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, which applies to all pending claims for VA benefits and which provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA. In the instant case, the Board finds that the RO complied with the requirements of the statute. All relevant evidence identified by the veteran was obtained and considered. In addition, the veteran was afforded a VA examination to assist in determining his claim. With regard to the adequacy of the examination, the Board notes that the report of the examination reflects that the VA examiner recorded the past medical history, conducted a physical examination and diagnostic study, and reported the findings. The examiner also offered an opinion pertinent to this claim. For these reasons, the Board finds that the examination was adequate for rating purposes. The Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claim and the Board will proceed to consider the claim on the merits. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A). Initially, the Board notes that the statutory criteria applicable to claims for benefits under the provisions of 38 U.S.C.A. § 1151, underwent a significant revision effective October 1, 1997, for claims filed on or after that date. Here, the veteran's request for benefits under § 1151 was filed in September 1998; thus, this claim must be decided under the current, post-October 1, 1997, version of 38 U.S.C.A. § 1151. The provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 2000) provide, in pertinent part, that: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and - (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was-- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West Supp. 2000). Thus, under the new law, a claim for benefits under the provisions of 38 U.S.C.A. § 1151 must be supported by medical evidence of additional disability from VA hospitalization, or medical or surgical treatment, the results of which were not reasonably foreseeable. See Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993), Ross v. Derwinski, 3 Vet. App. 141, 144 (1992). In the alternative, it must be shown that there is additional disability due to VA treatment that was careless, negligent, or otherwise administered in some degree of error as set forth above. The veteran has contended that his vision has decreased and that this was due to his VA treatment in October 1994. The record shows that the veteran was admitted to a VA facility in October 1994 with a history of end stage glaucoma despite maximally tolerated medical therapy and Argon laser trabeculoplasty in both eyes. It was noted that the veteran had advanced optic nerve cupping with visual field loss and pressures that were too high for his nerves. The medical record report shows that the veteran was informed of the risks and benefits of the procedure of trabeculectomy and agreed to proceed with surgery in the left eye. On admission, his uncorrected vision was 20/50 in the right eye and 20/60 in the left eye with neither improving with pinhole. He had intraocular pressure of 17 mm. of Mercury bilaterally. The veteran underwent an uncomplicated trabeculectomy with Mitomycin C-0.2 cc. per cc. times two minutes. It was noted that the veteran tolerated the procedure well. On his first post-operative day, he had an uncorrected visual acuity of count fingers in the left eye with intraocular pressure of 2 mm. of Mercury. Private medical records show that the veteran underwent corneal transplantation of the left eye in December 1996. In a December 5, 1996, letter, a private examiner noted that the veteran had a past history of advanced glaucoma of both eyes, and that in 1992 he had undergone a cataract extraction of the right eye. It was reported that in 1994 he had undergone glaucoma surgery of the left eye and subsequent cataract extraction of the left eye at a VA facility. It was stated that the veteran realized that the glaucoma of the left eye might be more difficult to control after surgery. In a December 17, 1996, letter, a private examiner noted that one day prior, the veteran had undergone an uncomplicated penetrating keratoplasty of the left eye. In February 1997, he underwent a trabeculectomy with mitomycin of the right eye. In an August 1997 letter, a private examiner noted that the veteran's end stage open angle glaucoma appeared to be adequately controlled in the right eye and that his left eye remained fairly comfortable. In a May 1998 letter, a private examiner noted that the veteran was being seen for follow-up of his December 1996 left eye surgery. It was stated that the failed corneal graft of the left eye was discussed and that further intervention was not recommended. In April 1999, the RO requested that the veteran undergo a VA examination. The examiner was asked to render an opinion as to whether or not the procedure in October 1994 contributed to or caused any current condition shown. Records concerning the October 1994 surgery were enclosed with the request. The veteran was examined by VA in May 1999. The veteran's past ocular history was noted, including his surgery in October 1994. It was noted that he had undergone surgery of the left eye in May 1995 (an extracapsular cataract extraction with posterior chamber intraocular lens), and in 1996 (a penetrating keratoplasty in the left eye), with right eye surgery in 1997 (trabeculectomy with a phacoposterior chamber intraocular lens placement). On ocular examination, his visual acuity was hand motion in the right eye; light perception in the left eye. There was no improvement with manifest refraction. There was no evidence of diplopia. On pupil examination there was a direct response in the right eye; the examiner was unable to test left eye, secondary to an opaque cornea. Extraocular motilities were full. Intraocular pressure measured 12 in the right eye; 32 in the left eye with Goldman's tonometer. Goldman's visual field showed a small side of recentral island of vision in the right eye. Slit lamp examination showed an opaque cornea in the left eye, secondary to a failed penetrating keratoplasty. The right eye revealed a functional bleb with a peripheral iridectomy. The posterior chamber intraocular lens was clear and well-centered. Dilated fundus examination showed advanced cupping in the right eye, secondary to glaucoma, approximately of 0.99, macular periphery and were otherwise normal. The examiner was unable to view the left eye, secondary to an opaque cornea. The impressions were: 1. Advanced primary open-angle glaucoma, left eye greater than right eye; 2. A decrease in vision in the left eye due to the progression of glaucoma and a failed penetrating keratoplasty; 3. The hypotony and choroidal detachment, along with the progression of cataracts, were risks of the surgeries that were explained to the patient at length at the time of the surgeries. The examiner opined that the VA surgery did not cause a decrease in vision to the veteran. It was stated that his loss of vision was a progression of his primary open-angle glaucoma; and 4. Failed penetrating keratoplasty in the left eye. The veteran testified before a hearing officer at the RO in June 2000. He testified concerning his October 1994 VA surgery of the left eye. He stated that before the surgery, he could see pretty well--reporting that he could see 3 or 4 lines on an eye chart. He stated that he was told the surgery would prevent worsening of his eyesight. He reported that right after the surgery, his vision went out in his left eye. He testified that a physician told him at a private clinic that there was damage to the left eye that could not be repaired. The veteran stated that he believed that the glaucoma surgery caused bleeding post operatively. A complete transcript is of record. After review of the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for benefits under 38 U.S.C.A. § 1151. The evidence submitted by the veteran does not show negligence or lack of care by VA, and does not establish that the loss of vision was caused by treatment he received during his VA surgery in October 1994. It is noted that the record shows that he tolerated the procedure well and that the surgery was uncomplicated. While the veteran has contended that his vision loss in the left eye was due to his glaucoma surgery in October 1994, that is not confirmed by the clinical evidence on file. In addition, a VA examiner has specifically opined that the veteran's surgery did not cause a decrease in vision to the veteran. The examiner stated that the etiology of the vision loss was progression of his glaucoma. There is no medical opinion of record in this case which indicates that the veteran's loss of vision resulted from carelessness, negligence, lack of proper skill, error in judgment or similar fault by VA, or that it was an event not reasonably foreseeable. In fact, the medical evidence indicates that the etiology of the veteran's loss of vision is the progression of glaucoma. The Board notes that the veteran is competent to report on that which he has personal knowledge, that is, what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson, the veteran is not competent to provide the required medical nexus evidence. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) and Grottveit v. Brown, 5 Vet. App. 91 (1993). In this regard, the Board would point out that the veteran testified that he had been told by a private examiner that his loss of vision in the left eye was due to damage. However, he also stated that he was unable to remember the name of the physician, since he had only seen him once. Thus, as the veteran has not submitted medical, or otherwise competent evidence showing that he developed loss of vision as a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA in furnishing his treatment, or that his loss of vision was an event not reasonably foreseeable, the appeal is denied. ORDER Entitlement to VA disability compensation for loss of vision pursuant to the provisions of 38 U.S.C.A. § 1151 is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals