Citation Nr: 0900044 Decision Date: 01/02/09 Archive Date: 01/14/09 DOCKET NO. 06-03 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for bilateral eye injury, claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing ophthalmologic examination or treatment. ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from July 1956 to October 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that rating decision, the RO denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 (West 2002) for bilateral eye injury. The veteran's disagreement with that decision led to this appeal, which the RO certified to the Board in 2006. At the time the appeal was certified to the Board, the veteran was represented by the Disabled American Veterans service organization. In September 2008, the RO received a VA Form 21-22 appointing The American Legion as the veteran's representative. In November 2008, The American Legion filed a motion with the Board to withdraw its representation of the veteran stating that as a matter of policy, The American Legion does not provide representation regarding issues with respect to which the veteran was represented by an attorney or other service organization after the issue has been certified on appeal to the Board. In a letter dated in November 2008, the Board advised the veteran that The American Legion had denied his request for representation, and the Board notified the veteran that he could represent himself, appoint a different veterans service organization, or could appoint an attorney or agent to represent him. The Board explained that if it had not heard from him or his new representative within 30 days of the date of its letter, the Board would assume he wished to represent himself and resume its review of his appeal. The veteran did not respond to the Board's November 2008 letter within the allotted time, and the Board will now proceed with its consideration of the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In November 2004, the veteran filed a claim for compensation under the provisions of 38 U.S.C.A. § 1151, asserting that he sustained bilateral eye injury from treatment by a specific ophthalmologist at the VA Medical Center (VAMC) in 2001. The veteran states that the ophthalmologist dilated his eyes and proceeded to poke them roughly. The veteran states he was in such pain afterwards that his wife had to lead him out of the hospital that day. He also states the pain was so severe afterwards that he had to go elsewhere for help because he was too afraid to return to the VA ophthalmologist. The veteran says he would like some compensation for pain and the right eye is blurry and he sometimes has blurring and "sticket." He also states that at times he has lots of pressure in his eyes and did not have this problem before. In a statement dated in October 2005, which was received at the RO in November 2005, the veteran said that he would identify the dates and locations and supply the chain of events if needed, but he has not done so. The earliest VA medical record in the file is dated in December 1999 and shows that at that time the veteran's complaints included sinus headaches and sinus congestion. After examination, the assessment included allergic rhinitis, and Allegra was prescribed. When the veteran returned for follow-up in March 2000, he stated he had not taken Allegra because he had read some information that it was not good for patients with glaucoma. He reported he had glaucoma and was on Ocupress, one percent, one drop in each eye, twice a day. The veteran said he needed a refill on his Ocupress, and a physician's assistant wrote the prescription. The physician's assistant stated she looked up Allegra and could not find contraindication for patients with glaucoma; the physician's assistant also stated that she spoke with the pharmacist who also was unable to find information regarding Allegra being contraindicated in glaucoma patients. VA progress notes show the veteran was seen in the eye clinic in May 2000 and underwent an examination by a VA optometrist. Applanation tonometry was 17 in the right eye and 16 in the left eye. Slit lamp examination revealed corneal arcus and nuclear sclerosis of the lenses. Dilation revealed disc sharp, .3. The assessment was "glaucoma by history, controlled, TC NS." The optometrist continued carteolol (Ocupress). The veteran returned in November 2000 for a check of intraocular pressures. Applanation tonometry was 20 in the right eye and 17 in the left eye. The impression reported by the optometrist was probable control, but still intraocular pressures at upper end of range, and open angle glaucoma by history. The plan was for the veteran to return to the clinic for visual field measurements, and he was to continue carteolol, twice a day, until then. In a VA eye clinic note dated in January 2001, the VA optometrist stated that applanation tonometry was 21 in the right eye and 22 in the left eye, right eye marginal, left eye decibels greatly reduced (-16.79) with loss of field in all quadrants. The impression was open angle glaucoma by history, marginal control. It was also noted the veteran had a vague history of trauma in the left eye. The optometrist questioned whether loss of field in the left eye was from glaucoma/trauma and questioned whether intraocular pressure was low enough to prevent further field loss. The optometrist noted that attempts to gather history from previous eye doctors were not helpful, and the plan was for a consultation with a VA ophthalmologist to evaluate glaucoma control and ascertain the cause of loss of field in the left eye. The veteran first visited the VA ophthalmologist in February 2001. In the eye clinic progress note, the veteran was noted to have a history of glaucoma for four to five years, and it was noted he was on carteolol, both eyes, twice a day. On examination, intraocular pressure was 22 in each eye. The ophthalmologist said fields were "full to F/M." After dilation, he noted early cataracts in both eyes. As to discs, he said "see drawing." The impression reported by the ophthalmologist was unusual glaucoma with too high intraocular pressures, bad fields, little cupping in the right eye but cupping in the left eye. The plan was to discontinue present medications and to start Alphagan, three times a day, in both eyes, and to return for fields and "ME." In a VA progress note dated in March 2001 the ophthalmologist wrote the history was glaucoma treatment with reservations. As to fields, he said, "[s]ee the recent and previous sets - such a change in one month is hard to imagine. Claims to be using his drops." Intraocular pressure was 19 in each eye. The ophthalmologist also said, "[s]eems disparity between discs and fields as they appear today." The plan was to continue brimonididine (Alphagan) three times a day. The ophthalmologist ordered an MRI (magnetic resonance imaging) study of the brain and optic nerves. In an eye clinic note dated in mid-May 2001, the ophthalmologist, under history stated, "[g]laucoma on Alphagan. Discs seem out of union with field loss." Intraocular pressure was 18 in the right eye and 19 in the left eye. The impression was acceptable intraocular pressures for now. The veteran underwent a VA MRI study of the brain in May 2001, and the report is dated in June 2001. The radiologist said the optic nerves appeared within normal limits, bilaterally, and there was no sign of infection in the orbits. The radiologist noted enhancement of signal on images in the white matter of the parietal lobes, bilaterally, which he said was compatible with atherosclerotic disease. He noted that the pons also showed small areas of increased signal enhancement compatible with atherosclerotic disease. The impression was no acute findings, atherosclerotic disease suspected. When the veteran was seen at the VA eye clinic in January 2002, his chief complaint was that he needed new glasses. He reported light flashes across vision, which he said had been going on for years. He said he was not worried about this. The veteran reported that he had lost a prescription written from the Waco VA in January 2001. He reported that a battery exploded in his face 36 years ago and he had received acid and fragments in the right eye. The veteran stated that the past July he had a foreign body in his right eye; he described it as scratchy and sticky and reported that he used eye wash to remove it. He also gave a history of a head-on auto accident in 1983. Examination by an eye technician showed corrected visual acuity was 20/25 -2 in each eye. On examination of the pupils, the examiner noted anisocoria and said both pupils were reactive. Intraocular pressure was 20 in the right eye and 18 in the left eye. In the same note, the ophthalmologist, pertaining to glaucoma check said with respect to fields, "[s]ee them; it is hard to imagine the past time's fields are from this man." The ophthalmologist noted intraocular pressure was 18 in the right eye and 19 in the left eye. He prescribed Xalatan HS (latanoprost). The ophthalmologist noted the veteran asked for a new prescription for glasses. He observed that the veteran read 20/25 in each eye with old and auto refractor prescription, but then began seeing 20/100 in the right eye with old prescription as well as with new prescription. The ophthalmologist said he saw no evidence of eye problems with scope or slit lamp examination. Refraction was done for the veteran by an ophthalmology technician in the VA eye clinic in February 2002. The veteran was given a prescription for new glasses. When the veteran was seen at the VA eye clinic in July 2002, he reported that he liked his new glasses and could see out of them. An ophthalmology technician noted anisocoria on examination of the pupils, and intraocular pressure was 18 in the right eye and 20 in the left eye. The veteran was also seen by the VA ophthalmologist who noted that the veteran reported that he had been using his eye drops but had run out last night. The ophthalmologist noted that disc examination showed .6 in both eyes with temporal thinning 7-11 and 1-5. The plan was to continue Xalatan, and the veteran was to return in six months for fields and intraocular pressure check. The next entry in the VA progress notes is dated in November 2004 and shows the veteran requested the eye clinic fill an outside prescription for Alphagan. The veteran stated that he was followed by Waco Eye Associates for all eye care and wanted to remain with them. The veteran also stated that he had bad experiences with the VA ophthalmologist. Other evidence of record includes private medical records showing that in late October 2002 the veteran was seen at Hillcrest Family Healthcare Center, and the assessment was: hypertension, uncontrolled; acute sinusitis; and headaches. He was treated with Clonidine in the clinic and was giving Norvasc, which he was to start on a daily basis. He was advised to go to the emergency room if he had a severe headache, visual changes, upper or lower extremity weakness, or speech difficulty. Four days latter, still in late October 2002, the veteran went to the emergency room at Hillcrest Baptist Medical Center. He presented with a headache that he said had been going on for about a week. He described the headache as tending to be slightly more on the right side. Blood pressure was reported elevated at 243/123, repeat 152/121 and 175/110. The veteran was given Lortab for his headache. A CT (computed tomography) scan of the head was ordered and was negative except for atrophy. On return from the CT scan, the veteran's blood pressure had spontaneously gone down to 168/91 after treatment for his headache with Lortab. An electrocardiogram showed an inverted T in the lateral leads, which was said to be consistent with left heart strain/ischemia. The impression was hypertension, headache, and question of early congestive heart failure. On discharge, the veteran was advised to follow-up with his physician. The following day the veteran went to Hillcrest Clinics, and it was noted that he had been seen in the emergency room both the previous day and the previous night for pressure behind his right eye. It was noted he had been given Fiorinal and Lasix in the emergency room and felt much better. The assessment at the clinic was sinusitis, hypertension, and headache, improved. Five days later, in early November 2002, the veteran saw Elizabeth B. Turnage, M.D., and gave a history of right eye pain and headache to the right face, which he reported had started the previous Sunday and he went twice to the emergency room. He said he has glaucoma and last saw a VA ophthalmologist three months ago. He also gave a history of migraine and said it felt similar, but never in his eye before. He said the pain had resolved, but he woke up with it this morning. On examination, the iris was slightly bowed. The assessment included right eye pain, question of etiology. Dr. Turnage arranged for the veteran to see Dr. Schlecte at Waco Eye Associates that morning. An August 2005 letter from Waco Eye Associates reports the veteran was first seen there in November 2002 by M. Charles Schlecte, M.D., on referral by another physician for right eye pain and inflammation. In a November 2002 office note, Dr. Schlecte noted that the veteran reported that his right eye had been hurting for more than a week. He reported that he was using Xalatan eye drops from the VA hospital for glaucoma. After examination, the diagnosis was unexplained pain. The treatment was to discontinue the eye drops for glaucoma, and the physician prescribed Lotemax and Fiorinal. Two days later, the veteran returned and reported he was feeling better. He said the pain started on the right brow and went to the eye. Applanation tonometry was 21 in the right eye and 22 in the left eye. The diagnosis was primary open angle glaucoma. The physician decreased the Lotemax dose. Three days later, in the first week of November 2002, the veteran returned and was noted to have swelling below the right eye. Applanation tonometry was 23 in the right eye and 25 in the left eye. The diagnosis was primary open angle glaucoma, and Dr. Schlecte prescribed Alphagan. Four days later, the veteran returned to Hillcrest Clinics and saw Hilary L. Canipe, M.D., who noted the veteran reported he continued to have terrible headaches on the right side, which awakened him at night and made him cry. He reported he had seen Dr. Schlecte, who could not find anything wrong. He said he does have glaucoma on that side and it was thought possibly that Xalatan caused the headaches. He said the Fiorinal did not help and that Aleve did help. The assessment after examination was right sided headache, retro-orbital. Dr. Canipe noted that she spoke with Dr. Schlecte and would check an MRI of the head with contrast and with orbit cuts. She prescribed Vicodin as needed for pain. When he saw Dr. Schlecte in mid-November 2002, the veteran reported he had used eye drops that morning. Applanation tonometry was 17 in the right eye and 20 in the left eye. Cup to disc ratio was .2 in the right eye and .4 in the left eye. The diagnosis was primary open angle glaucoma, and Dr. Schlecte continued the prescription for Alphagan with three refills. The veteran saw Dr. Canipe at Hillcrest Clinics in early December 2002 for follow-up. The veteran said he was feeling better and the soreness in his head was improving. He reported he was on new eye drops with Dr. Schlecte. He also reported he was continuing to take Norvasc but said his blood pressure was elevated at home. He also said he was having pressure in his right sinus and thought he needed a sinus pill. After examination, the assessment was allergic rhinitis and hypertension. The physician prescribed Allegra for the rhinitis and added Benazepril for hypertension with continuation of Norvasc. Later records from Hillcrest Clinic and Dr. Canipe indicate that the veteran's hypertension was well controlled, and later records from Waco Eye Associates and Dr. Schlecte show the veteran continued to be followed for glaucoma (with visual field charts dated in March 2003, April 2004, and February 2005) and was provided with prescriptions for Alphagan. On review of the record as outlined above, it is the judgment of the Board that further development is needed relative to the claim for compensation benefits under 38 U.S.C.A. § 1151 based on claimed bilateral eye injury. Initially, the Board notes that although the claims file includes printouts of VA electronic records for the veteran dated from December 1999 to July 2002 and in November 2004, it does not include the complete VA medical records. In particular, it does not include visual field charts and data for visual field measurements which, based on references in the records outlined above, were most likely conducted in January 2001, February 2001, March 2001, and January 2002. Also, in the VA eye clinic progress note dated in February 2001, as to discs, the ophthalmologist said "see drawing." There is no such drawing in the claims file, and action should be taken to obtain the original paper records for the veteran from the VA eye clinic, including from December 1999 to November 2004. Further, as to private medical records, a record dated in November 2002 refers to plans for an MRI of the head with contrast and with orbit cuts. The claims file does not include the report of any such MRI study, and if the study was done, action should be taken to attempt to obtain the report. Because of the specialized nature of ophthalmology tests, including visual field testing, and the absence in the record of explanation of the meaning of various findings such as reports related to disc examinations, combined with the VA ophthalmologist's indications of unexpected findings as well as the notation in the private medical records in November 2002 that it was thought that Xalatan (prescribed by the VA ophthalmologist) possibly caused the veteran's headaches, it is the judgment of the Board that the veteran should be examined by an ophthalmologist and a medical opinion should be obtained. The purpose of this is to determine whether the veteran has additional disability caused by VA medical treatment or examination and further whether the proximate cause of any such disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment or examination; or, whether the veteran has additional disability caused by VA medical treatment or examination, the proximate cause of which was an event that was not reasonably foreseeable. See 38 U.S.C.A. § 1151. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file complete VA medical records for the veteran dated from December 1999 to the present. This should not be limited to electronic records but should specifically include the drawing to which the VA ophthalmologist referred in a February 2001 progress note as well as visual field charts and data for visual field measurements which, based on references in the electronic records currently in the claims file, were most likely conducted in January 2001, February 2001, March 2001, and January 2002. Any other or subsequent handwritten records and/or visual field charts should also be obtained and associated with the claims file. 2. Request that the veteran identify the name and address of the health care facility or radiology practice that may have performed an MRI study of the head, which was probably ordered by Dr. Hilary Canipe in November or December 2002. Request that the veteran provide release authorization for the report of any such MRI study and take action to obtain a copy of the report and associate it with the claims file. 3. Arrange for VA examination of the veteran by an ophthalmologist who has not previously been involved in the veteran's care, for an opinion as to the nature and extent of any "additional disability" attributable to medical examination or treatment (including, but not limited to, prescription of Xalatan) by the VA ophthalmologist who treated him from February 2001 to July 2002. The examination report should include a detailed account of all manifestations of relevant pathology found. All necessary studies and/or tests for an accurate assessment should be conducted. The specialist is requested to review the entire record, including complete VA medical records, drawings, and visual field charts as well as private medical records (including those dated from October 2002 to December 2002) and identify the condition of the veteran's eyes before, during, and after the period he was seen by the VA ophthalmologist (which was from February 2001 to July 2002). The specialist is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the veteran suffered any additional disability as a result of examination or treatment by the VA ophthalmologist. The specialist is also requested to provide and an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the veteran suffered any additional disability as a result of being prescribed Xalatan by the VA ophthalmologist. If the specialist determines that it is at least as likely as not that examination, treatment, or the Xalatan did cause additional disability, then the examiner should offer opinions on whether the evidence shows an event not reasonably foreseeable caused the additional disability and whether there was fault on VA's part, including whether the medication and dose were appropriate. The specialist should provide an explanation of the rationale for each opinion. The claims file must be provided to the specialist and that it was available for review should be noted in the examination report. 4. Then, after completion of any other development indicated by the state of the record, readjudicate entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for bilateral eye injury, claimed as due to VA lack of proper care/negligence in providing ophthalmologic examination or treatment, including, but not limited to, prescription of Xalatan. If the benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case and provide the veteran an opportunity to respond. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2008).