Citation Nr: 0810461 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 02-15 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for residuals of a left eye injury due to treatment at a VA facility. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from November 1971 to May 1972. This appeal to the Board of Veterans' Appeals (Board) is from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board remanded this case in June 2007 for further development. At the time, there were three claims on appeal. The additional claims, that is, those other than the veteran's purported entitlement to § 1151 compensation for residuals of a left eye injury, concerned his petitions to reopen his claims for service connection for paranoid schizophrenia and for § 1151 compensation for residuals of shock therapy treatments at a VA facility. However, a September 2007 RO decision on remand granted service connection for schizoaffective disorder, which the veteran had claimed was due to brain trauma from the shock treatments in question, and which previously had been rated in part as paranoid schizophrenia). The RO assigned the highest possible rating of 100 percent for this disability, so those claims are no longer before the Board. FINDING OF FACT The veteran does not have additional left eye disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in providing the treatment in question. CONCLUSION OF LAW The criteria are not met for § 1151 compensation for a left eye disability due to VA treatment. 38 C.F.R. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.361 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims files reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in June 2005, the RO advised the veteran of the evidence needed to substantiate his claim of entitlement to § 1151 compensation and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Note also that the RO issued that VCAA notice letter prior to initially adjudicating his claim, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). As well, that letter specifically requested that he provide any evidence in his possession pertaining to his claim. Id., at 120-21. Even if there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to the veteran over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). It equally deserves mentioning that a March 2006 letter discussed the downstream disability rating and effective date elements of an underlying service-connection claim - keeping in mind that a claim for § 1151 compensation is akin to a claim for service connection because, if granted, the condition at issue is for all intents and purposes treated as though it was incurred or aggravated in service (i.e., service connected). See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And as for the duty to assist, the RO obtained the veteran's service medical records, VA medical records, private medical records, Social Security Administration (SSA) records, and the reports of his VA compensation examinations. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board is also satisfied as to compliance with its June 2007 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to § 1151 Compensation for a Left Eye Disability When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. See 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(a). For claims, as here, filed on or after October 1, 1997, the veteran must show that the VA treatment in question resulted in additional disability and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151; see also VAOPGCPREC 40-97 (Dec. 31, 1997). In determining whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361(b). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. See 38 C.F.R. § 3.361(c)(1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the veteran's informed consent. See 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the veteran's additional disability was an event not reasonably foreseeable - 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). See 38 C.F.R. § 3.361(d)(2). In this case, the veteran alleges that he was poked in his left eye by a VA health care provider, resulting in a hole in his cornea that later caused glaucoma. He says the incident occurred at the VA Medical Center (VAMC) in Wilmington, Delaware. He did not specify a date of this incident in any of his correspondence with VA or even during his August 2007 RO hearing. In any event, his contentions notwithstanding, the evidence of record does not show the veteran has additional disability in his left eye due to VA treatment at the Wilmington VAMC. Furthermore, the evidence shows the incident in question did not occur at a VA facility. An October 2000 medical record from the Wilmington VAMC shows the veteran reported to the ophthalmology clinic stating he had been hit with a stick two weeks earlier, some time in late September 2000. When requesting that treatment, he did not allege that he had been hit with a stick in his left eye during any VA treatment. Since that incident, he has complained of decreased visual acuity and photophobia. The record does not suggest, much less confirm, that he was hit with a stick in his left eye at a VA facility. He was diagnosed with a dislocated lens in his left eye, secondary to the trauma. More recent VA medical records from January and October 2002 show complaints of left eye pain. A January 2002 record indicates the veteran had a history of eye trauma in September 2000, and that he was diagnosed with a blown left pupil and dislocated left eye lens. So this is an obvious reference to his September 2000 injury well outside the confines of a VA hospital. The October 2002 record shows a diagnosis of low grade traumatic iritis and status post trauma with a blown left pupil and a dislocated left lens. There simply is no medical evidence of record suggesting his left eye disability was incurred during an incident at a VA facility. There is no other medical evidence on file, either, establishing the veteran has any additional disability in his left eye from specific VA treatment. He asserted during his August 2007 RO hearing that a VA employee poked him in the eye with an instrument. The record does not reflect this contention. In fact, as mentioned, to the contrary, it indicates he was hit in his left eye with a stick some time in late September 2000, which was the very reason he sought treatment from VA. He was diagnosed with left eye trauma, thereby confirming an injury had occurred. The record does not show he has additional disability due to VA treatment for his left eye trauma. His claim for § 1151 compensation therefore must be denied because the preponderance of the evidence is unfavorable, in turn meaning the doctrine of reasonable doubt does not apply. See 38 U.S.C.A. § 1151; 38 C.F.R. § 3.102; see also VAOPGCPREC 40-97 (Dec. 31, 1997). Even if the Board were to assume for the sake of argument that the veteran does have additional left eye disability, this claim still could not be granted because the causation requirements are not met. The evidence does not show that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event that was not reasonably foreseeable. No evidence in the veteran's claims folders indicates that an act of carelessness, negligence, lack of proper skill, error of judgment, or similar fault on the part of VA occurred. ORDER The claim for § 1151 compensation for a left eye disability is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs