Citation Nr: 0812608 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-39 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for glaucoma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Senior Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that denied the benefit sought on appeal. The veteran, who had active service from January 1960 to January 1964, appealed that decision to the BVA and the case was referred to the Board for appellate review. Following the veteran's BVA hearing in December 2006, the Board requested an expert medical opinion from the Veterans Heath Administration (VHA). An opinion dated in December 2007 was received and a copy of that opinion was furnished to the veteran and his representative. The veteran indicated that he had no further evidence and/or argument to submit, but his representative provided additional argument in response to the VHA opinion. FINDING OF FACT The veteran's glaucoma is not the result of carelessness, negligence, lack of proper skill, error or judgment or similar instance of fault on the part of the VA in furnishing medical treatment; it does not represent an event that was not reasonably foreseeable; and it was not attributable to the VA's failure to diagnose and/or treat a preexisting glaucoma when the VA provided treatment. CONCLUSION OF LAW The requirements for compensation under 38 U.S.C.A. § 1151 for glaucoma have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.358 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in September 2004 and June 2006. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, as indicated above, the Board obtained a VHA expert medical opinion to address the medical questions presented in this case. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. The veteran essentially contends that there was a delay in the VA providing him with an evaluation of his eyes and that this delay led to the advancement of his glaucoma without treatment. The veteran relates that he was in jail and had difficulty reading, at which time his eyes were checked for reading glasses and he was informed that the pressure in his eyes put him in the danger zone for glaucoma. He was advised to see a physician when released and he argues that the VA refused or delayed the evaluation necessary to evaluate the severity of his glaucoma and begin treatment. As such, the veteran believes that his glaucoma was far more advanced than it would have been had his eyes been evaluated sooner by the VA. Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. A disability or death is a qualifying disability or death if the disability or death was not the result of the veteran's own willful misconduct and the disability or death was caused by hospital, medical, or surgical treatment, or examination furnished by the VA under any law administered by the VA, and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). The VA's General Counsel has held that under the provisions of 38 U.S.C. § 1151 benefits may be paid for disability or death attributable to VA's failure to diagnose and/or treat a preexisting condition when VA provides treatment or an examination. Disability or death due to a preexisting condition may be viewed as occurring "as a result of" the VA treatment or examination only if a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment which probably would have avoided the resulting disability or death. The General Counsel's opinion went on to explain that the factual elements necessary to support a claim based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 5-2001 (Feb. 5, 2001). The Board is bound by the precedent opinions of VA's General Counsel. 38 C.F.R. § 19.5 (2007). Further, this was codified under regulation: Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2007). A review of the evidence of record discloses that the history of the veteran's case is that, apparently while incarcerated in April 2003, he underwent an evaluation of his eyes. A record of that date indicates that the veteran was offered intraocular pressure, but refused indicating that he would schedule the test later. However, non-contact tonometry intraocular pressures were obtained (as related in the VHA opinion), which were apparently high because a referral form associated with those records show the veteran had been referred to an appropriate eye care practitioner. It was noted that due to the uncertainty of the veteran's residence in six months they were unable to recommend an ophthalmologist at this time, and indicated that the veteran needed to have his intraocular pressure and eye health checked in six months. VA medical records include a record dated in October 2003 which reflects that the veteran was seen for his yearly examination to evaluate primarily respiratory disorders, but it was noted that he was recovering from a motorcycle accident and had orthopedic complaints, including a great deal of pain. During that evaluation he informed the examiner that he had been told of early glaucoma during one of his jail examinations and that the veteran was requesting an eye examination. The plan following the examination was that the examiner was going to submit a consultation to the orthopedic clinic, as well as placing a consultation for evaluation of respiratory complaints later that winter. It was also noted that the veteran was in need of an ophthalmology appointment for his glaucoma and that an attempt would be made to schedule those together. The examiner asked the veteran to return in approximately one month. The veteran was seen in November 2003, but that record contains no reference to the veteran's eyes. A VA outpatient treatment record dated in January 2004 showed the veteran requested an ophthalmology consultation because he was told by a non-VA eye physician approximately 10 months before that his pressure was borderline for glaucoma and that he needed a follow-up check. The veteran denied any new eye problems at that time. Following the examination, the assessment with regards to the veteran's borderline glaucoma was that the veteran was going to get records from the previous provider and the examiner was placing a consultation for a follow-up examination for glaucoma with the VA. A record dated in February 2004 indicated that the veteran reported that he was unable to afford to make the long distance phone calls necessary to obtain private medical records regarding his eyes and glaucoma problem. It was indicated that the author of the record tried to obtain the medical records for the veteran and had no luck, but that the veteran still wanted an eye consultation. The veteran was afforded an eye consultation in April 2004, following which the assessment was primary open angle glaucoma bilaterally with the left eye worse than the right based on intraocular pressures. A report of a VA eye examination performed in December 2004 showed that the veteran was diagnosed as having glaucoma and had an elevated intraocular pressure of 29 in the left eye. The veteran was noted to have a visual field loss which was consistent with primary open angle glaucoma but that the optic nerves were symmetric and did not appear to be as severely affected as his visual fields would indicate. At the veteran's December 2006 hearing, he testified that he still lacked peripheral vision and only had vision when he looked straight ahead. When the case was referred to the BVA for appellate review, the Board determined that an additional medical opinion was necessary in order to resolve medical questions presented. Specifically, the Board requested an expert opinion as to (1) whether the veteran had additional disability, or abnormal worsening of his glaucoma as a result of treatment or lack of treatment by VA medical personnel, and (2) if the veteran did have an abnormal worsening of his glaucoma, whether the VA medical personnel failed to exercise the degree of care which would be expected of reasonable health care providers under similar circumstances. An expert medical opinion from an ophthalmologist dated in December 2007 was received and a copy of that opinion provided to the veteran and his representative. In response the veteran indicated in January 2008 that he had no further argument or evidence to submit. The December 2007 VHA expert medical opinion reviewed all pertinent records associated with the claims file and in response to whether the veteran had additional disability or an abnormal worsening of his glaucoma as a result of treatment or lack thereof by VA medical personnel, the physician concluded that once the veteran was referred to the VA eye clinic, treatment for his glaucoma would begin on the initial evaluation visit and continued throughout his follow- up examination with either an optometrist or ophthalmologist. As to whether VA medical personnel failed to exercise the degree of care which would be expected of reasonable health care providers under similar circumstances, the examiner noted that from the time the veteran was seen in October 2003 until his initial optometric examination in April 2004 with the VA, a little over six months had elapsed. The physician noted that although this was a delay in the referral process, he also noted that no eye data was apparently available to the staff to assist them in expediting the veteran for specialty care at the VA. The physician concluded, as data were lacking to make an assessment of whether or not VA medical treatment or lack thereof may have had an abnormal worsening of the veteran's glaucoma, he was of the opinion that this could not be determined as there was no baseline data other than the information from the private optometrist's examination [which was not available to the VA prior to the initial optometric examination performed in April 2004 at the VA.] Based on this record, the Board finds that the veteran is not entitled to compensation for glaucoma under 38 U.S.C.A. § 1151. The record reflects that the veteran's glaucoma was either shown or strongly suspected at the time the veteran was seen for an evaluation of his eyes by a private physician in April 2003. In this regard, a referral form indicates that the veteran needed to have his intraocular pressures and eye health checked in six months. In addition, at the time the veteran was seen by the VA in October 2003 he reported that he had been told of early glaucoma during one of his private examinations. Thus, the record clearly reflects that when the veteran was seen by the VA in connection with his eyes he had glaucoma. As such, this case does not involve a situation in which the veteran's glaucoma was caused by VA medical treatment and resulted from carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of the VA in furnishing that treatment or represented an event that was not reasonably foreseeable. Rather, this question involves whether the veteran has a disability as a result of the VA's failure to diagnose and/or treat a preexisting condition when the VA provides treatment or an examination. See 38 C.F.R. § 3.361(c)(2); VAOPGCPREC 5-2001 (Feb. 5, 2001). At this point, the Board would note that the veteran's contentions involve an advancement of his disability as a result of the VA's failure to properly afford him an evaluation of his eyes. The interval between the veteran first being seen by the VA and being afforded a VA optometric examination in April 2004 was approximately six months. The Board further observes that a similar time period had initially elapsed between the veteran being informed through private treatment in April 2003 that he needed a further evaluation of his eyes and his contact with the VA in October 2003. The Board observes that the veteran was not service-connected for glaucoma and thus not entitled to priority treatment for that type of disability as opposed to lesser priority nonservice-connected disabilities. 38 C.F.R. § 17.49 (2007). Additionally, part of the delay was caused by the veteran's failure to obtain medical records as he indicated he would obtain in order to assist VA physicians in evaluating his glaucoma disability. Thereafter, the veteran received follow-up care from the VA, and as noted by the VHA medical opinion, received a very thorough work-up to elucidate the etiology of his eye problems and noted that the veteran's visual acuity had remained relatively stable throughout that time frame. The Board would also observe that a VA eye examination performed in December 2004 noted that the veteran's visual fields had been consistent and reliable not only at the time of that examination, but on prior examinations following a review of his chart from the past. In addition, the VHA expert medical opinion concluded that data were missing to make an assessment on whether or not VA medical treatment or lack thereof may have had an abnormal worsening of his glaucoma. He was of the opinion that this could not be determined as there was no baseline data other than the information from the private medical records which were unavailable to the VA when first seen in October 2003 and would have been approximately six months old even were they available to the VA for review. In sum, given the facts and circumstances of this case, the VHA expert could not conclude that additional disability resulted secondary to failure to treat. This uncontroverted opinion is of high probative value since the ultimate question in this case involves medical issues. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Consequently, the most competent and probative evidence of record does not demonstrate that the veteran suffered additional disability which would have been avoided if treatment had been rendered at an earlier date. Accordingly, for these reasons, the Board concludes that compensation for glaucoma under 38 U.S.C.A. § 1151 is not established. ORDER Compensation for glaucoma under 38 U.S.C.A. § 1151 is denied. ____________________________________________ MARY SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs