Citation Nr: 0812830 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-25 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right eye disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from July 1950 to July 1953 and from October 1954 to October 1957. He had an additional period of active duty in the United States Air Force from December 1957 to December 1958. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota (the RO). Procedural history In May 2002, the RO received the veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability. The October 2002 rating decision denied the claim, and he appealed. The Board remanded the case to the Appeals Management Center (AMC) in February 2006 for the purpose of obtaining additional medical evidence and affording the veteran a VA eye examination. After additional evidentiary development was accomplished, the AMC denied the claim in an October 2006 supplemental statement of the case (SSOC). By a March 2007 action, the Board again remanded the case to AMC for the purpose of obtaining additional medical evidence because not all of its instructions in the prior remand had been complied with. After the additional development was accomplished, the AMC denied the claim in a January 2008 SSOC. The case has now been returned to the Board for further consideration of the appeal. The record reflects that a motion to advance this case on the docket was filed on the on the veteran's behalf by his representative in February 2007. Taking into consideration the veteran's advanced age, his motion for advancement on the docket was granted. See 38 C.F.R. § 20.900(c) (2006). FINDING OF FACT A preponderance of the medical evidence supports a conclusion that a right eye disability was not caused by carelessness, negligence, lack of proper sill, or error in judgment on the part of VA in furnishing medical treatment to the veteran, nor was such the result of an event not reasonably foreseeable. CONCLUSION OF LAW Compensation under the provisions of 38 U.S.C. § 1151 is not warranted. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability. In essence, he contends that he incurred additional disability, specifically retinal detachment with a macular hole, as a result of VA medical and surgical treatment (cataract surgery in the 1970s and placement of intraocular lenses in 1989). In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Stegall considerations As was alluded to in the Introduction, the Board remanded this case in October 2006. The Board's remand instructions were not fully complied with. The Board again remanded the case in March 2007. The Board explained that its prior remand instructions had not been followed, particularly with respect to a medical opinion sought by the Board in its previous remand. See the March 9, 2007 Board remand, pages 3 et seq. The March 2007 remand instructions required the agency of original jurisdiction (AOJ) to provide the veteran and his representative with a VCAA notice letter that complies with the notification requirements of the VCAA, in particular the "give us everything you've got" provision in 38 C.F.R. § 3.159(b)(1). The remand instructions also required the AOJ to afford the veteran a physical examination by an ophthalmologist to determine the nature and extent of the veteran's right eye disability and vision loss. The examiner was to review the claims file and answer the following questions with respect to each of the veteran's eye surgeries (in August 1973, October 1969, and July 1991): (1) whether an additional eye disability resulted from any of the procedures; (2) whether a macular hole is currently present, and if so, whether it is productive of any disability; and (3) whether the veteran has any residual eye disability as a result of his retinal detachment. If the examiner finds that there is any additional right eye disability, he/she was to express and opinion as to whether that additional disability was the result of carelessness, negligence, lack of proper skill, error of judgment, or similar instance of fault on the part of VA medical professionals, or whether it was the result of an event not reasonably foreseeable. Thereafter, the AOJ was to readjudiate the issue on appeal. The requested VCAA notice letter was sent to the veteran in March 2007, and the requested examination with answers to questions and opinions was completed in November 2007. Review of the VA examination (conducted on a contract basis with a Sioux Falls ophthalmologist) reveals that the examiner answered the questions, and provided the opinions, that were requested in the remand. Finally, the claim was readjudicated in a January 2008 supplemental statement of the case. Thus, all of the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007) In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the veteran was informed of the evidentiary requirements pertaining to his claim under § 1151 in letters dated in May 2002, February 2006, and March 2007. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced letters, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "relevant records from any Federal agency. This may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration." With respect to private treatment records, the letters informed the veteran that the VA would make reasonable efforts to obtain private or non-Federal medical records, to include "records from State or local governments, private doctors and hospitals, or current or former employers." Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The VCAA letters further emphasized: "If [there is] evidence [that] is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the originals] The Board notes that in compliance with its march 2007 remand instructions the March 2007 letter specifically requested of the veteran: "please submit any and all pertinent evidence in your possession." This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the March 2007 VCAA letter, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service- connected disabilities. With respect to effective date, the March 2007 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's VA medical treatment records (all treatment was at VA medical facilities), his Social Security Administration records, and he was afforded VA examinations in October 1992, July 2006, and November 2007. Due process The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. Although he was informed of the option of a personal hearing, he did not request one. He did designate a personal representative in connection with his claim and appeal. Accordingly, the Board will proceed to a decision. Relevant law and regulations In pertinent part, 38 U.S.C.A. § 1151 reads as follows: "(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." Additional disability In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. See 38 C.F.R. § 3.361(b) (2007). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1) (2007). 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. See 38 C.F.R. § 3.361(c)(2) (2007). Carelessness, negligence, etc. To establish that 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 proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1) (2007). Foreseeability 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, 3.361(d)(2) (2007). Analysis The veteran is seeking compensation under the provisions of 38 U.S.C. § 1151 for a right eye disability, more specifically the emergence of a macular hole in his right eye. The veteran contends the macular hole in his right eye was a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, by VA medical staff at the Milwaukee VAMC in the performance of surgery in 1989 for lens implants, which in turn caused a detached retina in the right eye requiring repair surgery at the Milwaukee VAMC during July 1991. He also contends that a related macular hole was a result of carelessness, negligence, etc., by VA medical staff who performed the retinal repair surgery. As noted in the law and regulations section above, to substantiate a claim under 38 U.S.C. § 1151, the evidence must show that VA treatment caused additional disability, and that such additional disability was the result of either (A) negligence or carelessness on the part of VA or (B) an event which was not reasonably foreseeable. With respect to the matter of additional disability, medical evidence indicates that the veteran developed a macular hole in his right eye following surgery to repair a detached retina in July 1991. In November 2007, Dr. T.W., an ophthalmologist, after a review of the claims file, noted that the macula had also separated, and the condition was described as a macula-off retinal detachment. Dr. T.W. noted that the macular hole was still present, and in his opinion was responsible for decreased vision. His examination of the veteran's eyes showed a 92 percent loss of visual acuity in the right eye and no loss of vision in the left eye. Dr. T.W. went on to state that the retinal detachment and macular hole could occur "at any time" regardless of whether any surgery had been done on an eye. Dr. T.W. specifically indicated the veteran's "retinal detachment was not necessarily related to the [VA] cataract surgery, but may have been more of a spontaneous type". The VA examiner in July 2006 concluded that it was not possible to determine if the macular hole resulted from any of the veteran's prior procedures. Because the medical evidence is ambivalent on this point, the Board believes that the benefit of the doubt rule should be applied as to the matter of additional disability. See 38 C.F.R. § 3.102 (2007). The statutory requirement that additional disability be present is therefore arguably met. The question to be answered, then, is whether such additional disability is due to carelessness, negligence, etc. on the part of VA; or whether such additional disability is the result of an event which was not reasonably foreseeable. Although voluminous medical treatment records have been obtained, the only medical evidence which specifically discusses these matters is the above-mentioned November 2007 opinion from Dr. T.W., who is a board-certified ophthalmologist. In his opinion, Dr. T.W. stated that the macular hole was not the result of any action taken by the surgical team that repaired the retinal detachment, and it was not something that they either caused or that resulted from some failure of treatment on their part. Dr. T.W. note that there is no known treatment that will either prevent or treat this condition. The Dr. T.W. specifically stated that there was no evidence that any of the veteran's prior surgeries (cataract surgery in the 1970s and placement of intraocular lenses in 1989) were in any way at fault or negligent, and nothing was done or omitted that could have led to the retinal detachment or the macular hole that resulted from the detachment. The VA examiner in July 2006 opined that she saw no evidence of improper care, negligence, or carelessness from any of the surgeons or caregivers for the veteran. With respect to the matter of foreseeability, Dr. T.W. also stated that the retinal detachment and associated development of a macular hole in the veteran's right eye, while rare, were "not absolutely foreseeable", nor are they preventable. This statement does not address the "not reasonably foreseeable" standard contained in the statute. However, it is clear from the entire four page report that under the circumstances presented in this case, the additional disability, a macular hole, was reasonably foreseeable. Indeed, Dr. T.W. stated earlier in the report that "this is a known disorder which may occur in an eye at any time". In short, the medical opinion is that retinal detachment with associated macular hole is well known and common, whether or not associated with eye surgery. The record does not contain any contrary medical evidence either as to the matter of carelessness, negligence, etc. or as to the matter of foreseeability. There is nothing in the objective medical evidence of record to indicate that the veteran's additional disability was a result of carelessness, negligence, etc. or was an event which was not reasonably foreseeable. There is also no medical evidence to suggest that the treatment the veteran received was performed without the veteran's informed consent, nor has he so alleged. The only evidence in the claims file serving to link the veteran's additional right eye disability to negligence on the part of VA emanates from statements made by the veteran himself. It is now well settled, however, that laypersons without medical training, such as the veteran, are not qualified to render medical opinions regarding matters such as determinations of etiology and the proper standard of care, which call for specialized medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (2007) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The veteran's statements in this regard are accordingly lacking in probative value. Accordingly, the competent medical evidence of record indicates that right eye disability experienced by the veteran, although regrettable, was not due to carelessness, negligence, lack of proper skill, and error in judgment on the part of VA nor to an event not reasonably foreseeable, and the claim fails on this basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to compensation under 38 U.S.C. § 1151. The benefit sought on appeal is accordingly denied. ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs