Citation Nr: 0900575 Decision Date: 01/07/09 Archive Date: 01/14/09 DOCKET NO. 07-21 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right eye condition. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD S. A. Mishalanie, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right eye condition. The veteran filed a claim for this benefit in August 2003. In September 2006, the veteran testified at a hearing before a Decision Review Officer at the RO, and, in October 2008, he testified before the undersigned Acting Veterans Law Judge at the Board's office in Washington, DC. Transcripts of each hearing are of record. During the October 2008 hearing, the veteran submitted additional medical and lay evidence, along with a waiver of his right to have this evidence initially considered by the RO. The Board has accepted this evidence for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2008). FINDINGS OF FACT 1. Resolving all reasonable doubt in the veteran's favor, the use of oral prednisone to treat scleritis following a VA conjunctival biopsy was the precipitating cause of the central retinal vein occlusion of the right eye. 2. The central retinal vein occlusion of the right eye was not a reasonable foreseeable event from the use of oral prednisone. CONCLUSION OF LAW The criteria are met for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right eye condition. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.1, 3.6, 3.361 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Since the Board is granting the claim for § 1151 benefits for a right eye condition, the claim is substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Factual Background VA treatment records indicate the veteran had a history of a central retinal vein occlusion of the left eye in 1997, which resulted in visual acuity limited to light perception in the left eye. In April 2003, the veteran was treated for a conjunctival neoplasm of the right eye at the VA Medical Center (VAMC) in Asheville, North Carolina. His treating physician was Dr. W., a VA ophthalmologist. On April 15, 2003, the veteran underwent a surgical biopsy with cryo and was prescribed eye drops. On May 20, 2003, he complained of pain and light sensitivity in the right eye. An examination revealed elevated conjunctivae at the nasal edge with some new tissue beginning to extend onto an area of bare sclera. The diagnosis was autoimmune scleritis due to organic foreign body. He was prescribed oral prednisone and told to return in two weeks. On June 10, 2003, an examination revealed that the scleritis was a bit better and there was some scleral thinning. It was noted that he was healing very slowly from the April 2003 surgery. He was told to continue with eye drops and oral prednisone. VA treatment records indicate that on June 26, 2003, the veteran underwent surgical debridement of the scleritis of the right eye with a conjunctival flap procedure. On June 27, 2003, Dr. W. noted that the veteran had been using Tobradex eye drops and had not been taking prednisone. The doctor prescribed Maxitrol eye drops and oral prednisone. On July 11, 2003, the veteran reported that he stopped taking prednisone two days earlier and had lost his eye drops. He said his right eye was feeling better, but his left eye was hurting. That same day, the veteran was seen for concerns of diabetes (his brother had been diagnosed with diabetes). It was noted that a letter was mailed to him explaining that he had high HBA1C (blood glucose) and advising that he change his diet, exercise, reduce his weight, and quit smoking. On July 21, 2003, the veteran telephoned Dr. W. and complained of blurriness in his right eye. He said he could see at a distance for driving but could not see letters near and was concerned that he might be getting a vein occlusion in the right eye as he had previously had in his left eye. The doctor assured him that the lack of focus was most likely due to blood sugar fluctuations and suggested he try a pair of reading glasses from a drug store. The doctor said that a vein occlusion would affect both near and distance vision equally. On July 25, 2003, the veteran complained of spots in his vision and blurriness. The impression was venous stasis retinopathy (central retinal vein occlusion). On August 4, 2003, it was noted that he was being followed for non-ischemic central retinal vein occlusion of the right eye. In a record dated August 26, 2003, Dr. W. said that the veteran's smoking history and elevated glucose associated with prednisone use were contributing factors in the loss of vision in his right eye. The report of a June 2004 VA examination indicates Dr. B. examined the veteran and his claims file. Dr. B., a VA optometrist, opined that while oral prednisone may have increased the veteran's blood sugar, it would not have caused vein occlusion. Dr. B. also said that injected steroids and topical steroids likewise would not have caused vein occlusion. A June 2004 VA record indicates Dr. W. received a facsimile from Dr. S., a private physician, which indicated that the veteran tested positive for Factor V Leiden mutation (a hypercoagulability disorder that increases the blood's tendency to clot). Dr. W. noted that this test result could explain the veteran's bilateral ocular problems. In a June 2005 record, Dr. W. stated that he had reviewed several medical publications and concluded that while there was not unequivocal evidence that the oral prednisone caused the central retinal vein occlusion, it was the precipitating factor. Dr. W. stated that it was well-documented that oral steroids can cause elevated blood sugar, blood pressure, and intraocular pressure. The doctor also noted that smoking is associated with increased vascular risks (the veteran has a history of smoking). The doctor noted that the precise etiology of central retinal vein occlusion was unclear, but that patients with diabetes, systemic hypertension, and glaucoma are at a higher risk. The doctor noted that while the veteran was taking oral prednisone, he was found to have elevated blood glucose levels, blood pressure, and elevated intraocular pressure; the veteran was a smoker and also had the Factor V Leiden mutation. Dr. W. opined that these factors came together to cause the vein occlusion. The doctor said the veteran already had two risk factors - a history of smoking and the Factor V Leiden mutation, but oral prednisone added three additional risk factors - elevated blood glucose, blood pressure, and intraocular pressure. In a January 2006 record, Dr. W. added that the vein occlusion of the right eye was not a reasonably foreseeable result of prednisone treatment because it was not known at the time that the veteran had Factor V Leiden mutation. The report of a December 2006 VA examination provided by Dr. G., a VA ophthalmologist, indicates the veteran was examined and the claims file was reviewed. Dr. G. also reviewed the opinions provided by Dr. W. After reviewing the medical literature, Dr. G. opined that the Factor V Leiden mutation was not a risk factor for central retinal vein occlusion and cited four journal articles that did not show a positive correlation. With regards to Dr. W.'s opinion that the use of oral prednisone led to elevated blood glucose, blood pressure, and intraocular pressure that were additional risk factors for vein occlusion, Dr. G. stated that this was not substantiated by the clinical records. Dr. G. noted that the veteran did not, in fact, have elevated blood glucose, blood pressure, or intraocular pressure while he was taking prednisone. Dr. G. noted that on July 11, 2003, the veteran had a laboratory reading of glucose at 101, which was normal (the normal range is 74-118) and a hemoglobin A1C of 6.3, which was slightly elevated (the normal range is 3-6). Dr. G. said that the reading of 6.3 may have indicated higher glucose readings in the past 3 months, but that the course of prednisone had been relatively short and he was unable to substantiate that prednisone had an effect in causing elevated blood glucose. Furthermore, Dr. G. cited a journal article that found a higher prevalence of diabetes mellitus in patients with central retinal vein occlusion, but only in the ischemic type. Dr. G. pointed out that the veteran was diagnosed with the non-ischemic form, which was not found to be associated with blood sugar. Dr. G. also commented on what he believed was the actual cause of the vein occlusion of the right eye. Dr. G. noted that the veteran said he was told that the vein occlusion that occurred in his left eye would not occur in his right eye. Therefore, the veteran said he was not careful with his diet. Dr. G. opined that whatever vascular conditions that caused the vein occlusion in the left eye in 1997, later occurred to cause the same condition in the veteran's right eye. Dr. G. cited three journal articles, which showed that patients who have had vein occlusion in one eye are more likely to have the same condition develop in the other eye. At the October 2008 hearing, the veteran submitted internet research, which explained that the people carrying the Factor V Leiden gene have five times greater risk of developing a blood clot than the normal population. He also submitted another opinion from Dr. W. dated in June 2007. In a June 2007 letter, Dr. W. stated that, contrary to the opinion by Dr. G., the veteran had elevated glucose and blood pressure while taking oral prednisone. Dr. W. attached a clinical summary to support this conclusion. Dr. W. also stated there were conflicting studies as to whether the Factor V Leiden mutation played a role in central retinal vein occlusion, but that studies did show a relationship with peripheral vascular occlusions. Furthermore, Dr. W. stated that if the vein occlusion was not caused by intrinsic factors, such as the Factor V Leiden mutation, then it was even more likely triggered by external factors, such as the use of oral prednisone. Dr. W. submitted a journal article that indicated Factor V Leiden mutation may play a role in causing central retinal vein thrombosis. In addition, Dr. W. stated that the veteran showed signs of a steroid psychosis while using oral prednisone. The doctor opined that this psychological stress may have triggered a physiological response, such as elevated fibrinogen levels, which are associated with an increased risk of vascular occlusion due to hyperviscosity of the blood. Dr. W. submitted several journal articles to support this opinion. In addition, the veteran submitted statements from his wife (N.Y.) and S.B., which note that the veteran appeared agitated, hyperactive, and short-tempered while taking prednisone. Governing Statutes and Regulations Compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the veteran when 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 VA 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 2002 & Supp. 2008). VA regulations codifying the requirements for claims requesting benefits under 38 U.S.C. 1151(a) filed on or after October 1, 1997, became effective September 2, 2004. 69 Fed. Reg. 46426 (Aug. 3, 2004). A review of the record reveals that the veteran's claim for compensation was received in August 2003. For claims received by VA on or after October 1, 1997, in order for compensation for additional disability or death due to hospital care, medical or surgical treatment, examination, to be authorized, there must be actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361 (2008). It must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To establish the proximate cause of an additional disability or death it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). In addition, the Board may consider regulations not considered by the agency of original jurisdiction if the claimant is not prejudiced by the Board's action in applying those regulations in the first instance. VAOPGCPREC 16-92 (Jul. 24, 1992); VAOPGCPREC 11-97 (Mar. 25, 1997). The RO considered 38 C.F.R. § 3.361 in its April 2007 statement of the case. The Board points out that this new regulation merely codified the existing statutory provisions of 38 U.S.C. § 1151. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Court has also held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Legal Analysis Dr. W. has offered two theories that support the veteran's claim for § 1151 benefits. The first theory is that oral prednisone led to elevated blood glucose levels, which among other pre-existing conditions, led to the central retinal vein occlusion of the right eye. The second theory is that oral prednisone caused steroid psychosis in the veteran, which led to increased levels of fibrinogen and the risk of vascular occlusion. As will be discussed in greater detail below, because the Board finds that the evidence is in relative equipoise with regards to the former theory, it is unnecessary for the Board to address the latter theory. It is the Board's responsibility to weigh the evidence (both favorable and unfavorable) and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Obviously, this responsibility is more difficult when, as here, medical opinions diverge. And at the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, two VA ophthalmologists - Dr. W. and Dr. G. - have offered diverging opinions as to whether the use of oral prednisone caused the central retinal vein occlusion of the veteran's right eye. Dr. W. offered an opinion in favor of a relationship, while Dr. G. offered an opinion against. A VA optometrist, Dr. B., also opined against a possible relationship, but did not offer a rationale or explanation for the opinion. Hence, the Board finds that Dr. B.'s opinion lacks probative value. As alluded to above, the initial question is whether VA treatment caused an additional disability. According to the journal articles cited by the doctors, while the causes of central retinal vein occlusions are unknown, there have been several risk factors identified - hypertension, hyperlipidemia, diabetes mellitus, smoking, and glaucoma. With regard to Factor V Leiden mutation, there appears to be some disagreement in the medical community as to whether an association exists. The evidence, however, does demonstrate that the veteran had Factor V Leiden mutation and was therefore more prone to clotting. The veteran also had several other risk factors - a history of smoking and hypertension, which may have played a part in developing the vein occlusion. It is Dr. W.'s opinion that the use of oral prednisone, prescribed by him during treatment for scleritis, caused elevated blood glucose, which is yet another risk factor associated with central retinal vein occlusion. Dr. W.'s opinion is that the use of oral prednisone resulted in elevated blood glucose and was the precipitating cause of the vein occlusion - in other words, it was the straw that broke the camel's back. The clinical records support the fact that the veteran had elevated glucose shortly before developing the vein occlusion. On the other hand, while Dr. G. acknowledged that the veteran had slightly elevated blood glucose levels in July 2003, he did not believe this was caused by the use of oral prednisone and he did not believe the elevated blood glucose was the likely cause the central retinal vein occlusion, because it was of the non-ischemic type. Dr. W. and Dr. G. provided rationale, including medical journal articles, to support their respective opinions, which are each equally competent and probative. The fact that these opinions diverge appears to represent reasonable disagreement within the medical community or the lack of sufficient research in this area. Under these circumstances, the Board finds that the evidence is in relative equipoise as to whether the use of oral prednisone caused the central retinal vein occlusion of the veteran's right eye. Therefore, with regard to causation, reasonable doubt must be resolved in the veteran's favor. See 38 U.S.C.A. § 5107(b) (West 2002); see Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Having found that VA treatment caused the vein occlusion, the next question is whether the proximate cause was due to fault on the part of VA in rendering the treatment, by an event not reasonably foreseeable, or by the VA vocational rehabilitation or compensated work therapy program. In this case, the disability was not caused by VA vocation rehabilitation or compensated work therapy program and there is no evidence of fault on the part of VA. With regards to whether the event was reasonably foreseeable, the only medical opinion addressing foreseeability is that of Dr. W. Dr. W. opined that it was not reasonably foreseeable that the use of oral prednisone would cause central retinal vein occlusion because it was not known at the time that the veteran had Factor V Leiden mutation and was prone to clotting. The evidence supports that VA was not notified that the veteran was diagnosed with Factor V Leiden mutation until June 2004 - almost a year after the vein occlusion. In sum, resolving all reasonable doubt in the veteran's favor, the Board finds that use of oral prednisone was the precipitating cause of the central retinal vein occlusion of the right eye and that the resulting disability was not reasonably foreseeable. For these reasons, the claim for § 1151 benefits for a right eye condition is granted. See 38 U.S.C.A. § 5107(b); see Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right eye condition is granted. ____________________________________________ Nancy Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs