Citation Nr: 1031981 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 06-20 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to compensation under the provisions of title 38, United States Code, § 1151, for blindness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. I. Velez INTRODUCTION The appellant had active service from December 1953 to December 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A videoconference hearing in front of the undersigned Acting Veterans Law Judge was held in October 2006. A transcript of the hearing has been associated with the claim file. In August 2009, the Board remanded the claim for further development. The requested development has been completed and the claim is ready for review. FINDINGS OF FACT 1. In August 1998, the appellant was diagnosed with dry age- related macular degeneration (AMD). 2. The appellant's blindness was not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for blindness under the provisions of 38 U.S.C.A. § 1151, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.361 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b). Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).at 119 (2004). This timing requirement applies equally to the initial- disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The record shows that VA received a claim for compensation based on 38 U.S.C.A. § 1151 in May 2005. In July 2005, the RO sent the appellant a letter informing him that VA had a duty to notify and assist pursuant to VCAA, the evidence received or obtained, what the VA is responsible for getting, and what the VA will reasonably attempt to obtain on his behalf. He was also informed of what the evidence must show in order to substantiate his claim. The notice predated the rating decision. The Board finds that the VCAA letter sent to the appellant in July 2005 essentially complied with statutory notice requirements as outlined above. VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought. Notice of the disability rating and effective date elements of his claim was not provided until the Supplemental Statement of the case of May 2010. This was after the initial adjudication of the claim. However, the untimely notice did not create any unfair prejudice because the preponderance of the evidence is against the claim. Indeed, for this reason, any questions as to the appropriate disability rating or effective date to be assigned are moot. VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. VA and private medical records have been associated with the claims folder. The appellant was afforded multiple VA examinations. The same were adequate in that they considered the claim file, the appellant's medical history, provided factual findings and provided opinions with full rationales. The adequacy of the examinations has not been challenged by either the appellant or his attorney. Moreover, the appellant was given the opportunity to testify at a videoconference hearing. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria and Analysis The appellant contends that he is entitled to compensation under 38 U.S.C.A. § 1151 for blindness, claimed as due to VA's lack of proper care/negligence in providing treatment for his age-related dry macular degeneration (dry AMD/ARMD). He specifically contends that the VA failed to provide laser treatment which would have arrested the disease and prevented his vision loss. Alternatively, he argues that he would have sought treatment elsewhere if he had been given a clear and correct diagnosis by the VA earlier. The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran's willful misconduct, caused by VA 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 other instances 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. VA regulations codifying the requirements for claims requesting benefits under 38 U.S.C.A. § 1151 (a) filed on or after October 1, 1997, became effective September 2, 2004. A review of the record reveals that the appellant's claim for compensation benefits was received in March 2002. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the 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 failure to follow medical instructions. 38 C.F.R. § 3.361. It must be shown that the hospital care, medical or surgical treatment, or information 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 several instances involved in 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 in each claim is 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 (d). The Board concludes that the preponderance of the evidence is against a finding that the appellant's blindness was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment for his dry AMD or an event not reasonably foreseeable. A VA examination report of February 1988 shows that the appellant's eyes were noted to be normal. VA treatment records show that the appellant was first diagnosed by the VA with dry AMD in both eyes in August 1998. At the time he was also diagnosed with mild cataracts in both eyes. Records of August 1999 show that the appellant reported he noted "wariness" in straight lines for 6 to 8 months in both eyes. A dilated fundus examination (DFE) showed pigmented scattered drusen in both eyes. There was atrophy of the retinal pigmented epithelium (RPE) in both eyes. The impression was ARMD with Amsler grids and early cataracts bilaterally. It was noted that the physician was to consult with retina to see if treatment was needed. Records of October 1999 from the appellant's primary care physician show that the physician noted that the appellant was having eye problems and was supposed to have laser surgery soon. In February 2000, DFE showed geographic RPE atrophy in both eyes. It was noted there was no choroidal neovascular membrane in either eye. The impression was ARMD with a large scalloped area of atrophy bilaterally. It was noted that the appellant's condition was discussed with Dr. M., and was noted that the geographical areas were less likely to become wet than the fine drusen. He was to be followed up in 4 months and as occasion required (PRN) and that he would need a referral for another fluorescein again if there were dramatic changes in the future. Records of May 2000, show that DFE showed geographical RPE atrophy. The impression was ARMD bilaterally and cataract bilaterally. He would be followed up in a year and was to be followed with Amsler grid. Records of October 2001 note that Amsler grid showed the appellant was unable to see. Private treatment records of March 2002 show that his private ophthalmologist explained to the Veteran that he has cataracts in both eyes but that the main thing affecting his vision is macular degeneration. His ophthalmologist explained that he has advanced macular degeneration and there is no treatment. Macular photos were done that day. He was to return for a retina check in three months. The appellant was afforded a VA eye examination in August 2002, at which time he was diagnosed with macular degeneration. In a letter of April 2005, the Clinic Manager at the Central Arkansas Veterans healthcare System Ophthalmology clinic stated that the appellant had age related macular degeneration in both eyes and has had several photographs taken of each eye. He also stated that he has had fluorescein angiography performed on several occasions to determine if he would need other forms of treatment such as laser. He stated the appellant had photography done in August 1999 and May 2000 and that the Veteran had called with concerns about the photography. The Clinic Manager explained that fundus photography and fluorescein angiography are both useful diagnostic tools in following and treating complications associated with macular degeneration. In November 2005, the appellant was afforded a subsequent VA examination; although the examiner did not review the appellant's claims file, he opined that the macular degeneration was an age- related problem and that there was no evidence or reason to think that there was any carelessness or negligence or lack of proper skill in judgment or treatment of the condition. He noted that the condition is very difficult to manage and that medical professionals did not have that much to offer the patient. In May 2006, after reviewing the claims files, the examiner reiterated that the appellant's progression of macular degeneration was treated appropriately and properly by the VA and that there was no evidence of any neglect or delay in treatment. At an October 2006 videoconference hearing, the appellant testified that he first visited the VA eye clinic at the Central Arkansas Veterans Healthcare System -- John L. McClellan Memorial Veterans Hospital in Little Rock, Arkansas, in October 1998, at which time he was instructed to come back in October 1999. By February 2000, his eyesight had deteriorated to the point where corrective laser surgery was recommended, but he was informed that he would not have the surgery at that time. He was diagnosed with cataracts at that time, and claims that he was not informed of a diagnosis of macular degeneration until at least October 2001, at which time he was informed that the condition was too advanced to treat. The appellant was afforded another VA examination in January 2009. The examiner noted diagnoses of dry type macular degeneration and cataracts. He noted he reviewed the claim file. He explained that the appellant was diagnosed with "early changes of dry macular degeneration" in 1998 (emphasis in original). He opined that it is more likely than not that this condition would worsen. He further stated that since there was no neovascular membrane to treat with laser, it is not likely that his loss of vision was due to carelessness, lack of skill or error in judgment on the part of his physicians. Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for benefits under the provisions of 38 U.S.C.A. § 1151. The competent evidence of record shows that the appellant has no additional disability proximately due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in diagnosing or treating the appellant for dry AMD, and his blindness is not the result of an event that was not reasonably foreseeable. Initially, the Board notes that the Board assigns greater probative value to the medical opinions of record than to the opinions of the appellant and his representative. In some circumstance, lay evidence constitutes competent evidence to establish a medical fact, such as hearing loss or pain. Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). However, here, the Board finds that the question of whether the appellant has additional disability in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment or surgery, or due to an event not reasonably foreseeable is a complex medical issue that is beyond the realm of a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The competent evidence in this case shows that the appellant has blindness resulting from age-related dry macular degeneration. The medical opinion of January 2009 clearly states that the appellant was diagnosed with dry age-related macular degeneration in 1998 and that it was more likely than not that this condition would worsen. Therefore, his resulting blindness is not reasonably unforeseeable. Regarding the appellant's allegations that laser treatment would have arrested his dry AMD and prevented his blindness, the Board finds this argument without merit. Despite the appellant's assertions to the contrary, none of the medical opinions of record state that there was treatment available for his dry AMD or that laser treatment would have arrested his condition and prevented his blindness. On the contrary, all of the medical opinions of record are in agreement and state that the appellant's dry AMD was not treatable. Most recently, the VA examiner of January 2009 stated that there was no neovascular membrane to treat with laser in the appellant's case. This is supported by the objective evidence of record. Specifically, records of February 2000 noted there was no choratoid neovascular membrane in both eyes. Both the January 2009 and the November 2005 medical opinions suggest that the natural progress of the disease led to the Veteran's gradual deterioration in vision and that there were no treatment options available to the Veteran which would improve or reverse his vision loss. Further, all the medical opinions of record indicate that the treatment VA provided was proper. The applicable regulations state that "medical . . . 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) (2009). The Board acknowledges the appellant's argument that he was not given a clear and correct diagnosis by the VA until October 2001 which made it too late for him to seek treatment elsewhere. However, the Board notes that the objective evidence of record does not support the appellant's allegations. In this regard, the Board notes that the record reflects diagnoses of dry AMD as early as August 1998. The records do not show that this was a questionable diagnosis, but rather it shows that it was a definite diagnosis. The VA treatment records show that the appellant was consistently informed he would be followed up after either a specified period of time or as needed. Moreover, in a letter of April 2005, the Clinic Manager of the Ophthalmology clinic at the Central Arkansas Veterans Healthcare System stated that the appellant had been provided with tests, including photography and fluorescein angiography, which are specific diagnostic tools in following and treating complications associated with AMD. Furthermore, in the letter the Clinic Manager noted that the appellant had called with concerns about the photography being done in August 1999 and May 2000. These statements and the treatment records show that the appellant had been conclusively diagnosed with AMD as early as 1998, was being followed up for the disability since then on a consistent basis, and was aware of the testing being done to follow up his condition. As such, the Board finds his allegations that he was not informed of his diagnosis until October 2001, to not be credible. In sum, the preponderance of the evidence is against the claim. The VA examiners concluded in November 2005, May 2006 and January 2009 that there was no evidence or reason to think that there was any carelessness or negligence or lack of proper skill in judgment or treatment of the dry AMD. There is no medical opinion of record which supports the claim. Moreover, in January 2009, the VA examiner opined that it was more likely than not that the appellant's condition would worsen. As such, the Board finds that entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for blindness is not warranted. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board sympathizes with the appellant and regrets that a more favorable decision could not be rendered on his behalf, but ultimately the Board is constrained by the evidence of record. ORDER Compensation under 38 U.S.C.A. § 1151 for blindness is denied. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs