Citation Nr: 1123989 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 08-34 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for post-operative residuals of cataract surgery involving the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from December 1953 to September 1957. This appeal to the Board of Veterans' Appeals (Board) is from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. As support for his claim, the Veteran testified at a hearing at the RO in September 2009 before a local Decision Review Officer (DRO). The Veteran also testified at a videoconference hearing in June 2010 before the undersigned Veterans Law Judge (VLJ) of the Board. In July 2010, the Board remanded the claim to the RO via the Appeals Management Center (AMC) for additional development and consideration, including especially obtaining any outstanding VA and/or private treatment records and for a medical opinion regarding some additional pertinent issues needed to decide the claim. The AMC since has issued a supplemental statement of the case (SSOC) in December 2010 continuing to deny the claim and returned the file to the Board for further appellate consideration. FINDINGS OF FACT 1. The amount of vision loss in the Veteran's left eye is tantamount to blindness. 2. In March 2005, however, prior to undergoing the left eye cataract surgery in question at a VA medical center (VAMC), he gave his informed consent to this procedure. 3. Medical opinions by VA compensation physicians in September 2008 and November 2010 conclude there is no indication of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in the provision of the left eye cataract surgery and follow-up treatment. 4. The November 2010 VA medical opinion also indicates the additional left eye disability, referring to the vision loss/blindness, is an event reasonably foreseeable under the circumstances since it is a well-known, established complication of cataract surgery. CONCLUSION OF LAW The criteria are not met for § 1151 compensation. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in October 2006, so prior to initially adjudicating his claim in August 2007, hence, in the preferred sequence. The letter informed him of the evidence required to substantiate his § 1151 claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. And as for the Dingess requirements, since the Board is denying his claim for § 1151 compensation, the downstream disability rating and effective date elements of this claim are ultimately moot. So not providing notice concerning these downstream elements of the claim is inconsequential and, therefore, at most non-prejudicial, i.e., harmless error. See 38 C.F.R. § 20.1102. As the pleading party, he, not VA, has this burden of proof for not only showing there is a VCAA notice error in timing or content but also that it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). He submitted private treatment records, personal statements, and testified at hearings - both before a local DRO and more recently before the undersigned Veterans Law Judge (VLJ) of the Board. As well, the RO and AMC obtained his VA treatment records and medical opinions in September 2008 and November 2010 concerning all aspects of his § 1151 claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Notably, the Board primarily remanded this case in July 2010 so the AMC might obtain any outstanding VA and/or private treatment records and for medical comment concerning some additional issues that are pertinent to resolution of this § 1151 claim that had not been addressed in the medical opinion obtained in September 2008. The AMC accordingly requested on remand that the Veteran complete and submit the authorization form (VA Form 21-4142) needed to request and obtain his private physician's records, which, unlike his VA treatment records, are confidential. But he did not respond to this request for his release of any records that might be available from private doctors. The duty to assist him in developing his claim is not a "one-way street." If he wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board is therefore satisfied there was substantial compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). The Board also sees that, in the May 2011 post-remand brief, the Veteran's representative requested VA obtain all medical quality assurance records concerning this § 1151 claim. On April 19, 2011, VA General Counsel's Office issued VA O.G.C. Prec. Op. No. 1-2011, addressing a number of questions related to whether the Board has the legal authority, in conjunction with deciding a claim for disability benefits under 38 U.S.C. § 1151, to attempt to secure and review Veterans Health Administration (VHA) quality assurance records for purposes of determining whether the records are privileged so that they may not be released or considered in deciding such a claim for benefits. These questions were raised by the United States Court of Appeals for Veterans Claims (Court/CAVC) in Hood v. Shinseki, 23 Vet. App. 295 (2009). The OGC Opinion held, as a general matter, the governing statutes and regulations do not authorize disclosure of VHA quality assurance records or documents for purposes of adjudicating a claim for benefits. However, because there are very specific requirements in place for designating documents as being a VHA quality assurance record, the duty to assist does require that reasonable efforts be made to request from VHA any quality assurance records or documents that are relevant to a claim, provided the claimant furnishes information sufficient to locate the records or documents and, if VHA denies access to the records and documents on the basis that they are protected by 38 U.S.C. § 5705 and implementing regulations, to appeal VHA's denial to the OGC under 38 C.F.R. § 17.506. Under 38 C.F.R. § 17.508(c), any quality assurance record or document, whether confidential and privileged or not, may be provided to the General Counsel or any attorney within OGC, wherever located. If VHA and OGC conclude that the records and documents are protected by section 5705 and implementing regulations, VA may not consider them and rely on them in the adjudication of the claim. If VHA or OGC concludes that the records and documents are not confidential and privileged, VA may consider them in adjudicating the claim. Reading VA O.G.C. Prec. Op. No. 1-2011 (April 19, 2011) in the most liberal sense possible, the Board does not find the authority to request from VHA any relevant quality assurance records or documents unless and until the Veteran first furnishes information sufficient to locate the records or documents. And, here, the Veteran's representative merely has made a blanket, nonspecific, request for quality assurance records, so inherently too general and insufficient to locate any quality assurance records or documents that are potentially relevant to this § 1151 claim. The Board is therefore satisfied that VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. II. Whether the Veteran is Entitled to § 1151 Compensation for Post-Operative Residuals of Cataract Surgery - Including Especially what Amounts to Blindness in his Left Eye The Veteran contends he is entitled to § 1151 compensation because cataract removal surgery he had at the local VAMC ultimately led to what amounts to blindness in his left eye (just 1/400 visual acuity), although before the surgery he was told the procedure would be much more routine and uneventful and that he would have normal vision in this eye, even without correction. 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 (West 2002 & Supp. 2010); 38 C.F.R. § 3.361(a) (2010). 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 that was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(a)-(d). 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 exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 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). Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Turning now to the facts of this particular case. The initial cataract removal surgery in question occurred in March 2005 within VA's Tennessee Valley Healthcare System (HCS). The Veteran later had two additional eye surgeries in April 2005 at the Vanderbilt University Medical Center, and still additional VA eye surgery later that same year in October 2005. The eye surgeries and treatment the Veteran received in April 2005 at the Vanderbilt University Medical Center, by Dr. F.R., even if to correct problems arising out of his initial surgery at the VAMC, is not a basis for § 1151 compensation. A private or state facility is specifically not included as a basis of compensation under 38 U.S.C. § 1151 because VA does not have jurisdiction over the private or state facility. See MacDonald v. Shinseki, Slip Copy of Unpublished Disposition (single-judge decision), 2010 WL 2640585 (June 30, 2010). Significantly, fee-basis treatment or referral does not constitute VA treatment for purposes of 38 U.S.C.A. § 1151." See Id. So even if this additional left eye surgery in April 2005 at the Vanderbilt University Medical Center was on a fee-basis arrangement, it would not be covered under the auspices of his § 1151 claim since it primarily concerns his initial surgery in March 2005 at the VAMC, although, as also mentioned, he had additional surgery at the VAMC later that year - in October 2005. In developing this claim for § 1151 compensation, the RO obtained a medical opinion in September 2008 concerning the merits of this case. This commenting VA eye examiner conceded the Veteran has additional disability, namely, legal blindness in his left eye, thus satisfying the threshold preliminary requirement of a § 1151 claim. Indeed, this same VA examiner also readily conceded this additional disability is traceable to the cataract surgery the Veteran had at the VAMC, so there is the required proof of actual causation. The Veteran's claim nonetheless fails, however, because he has not also established the required proximate causation - including specifically in terms of establishing the required carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on VA's part in the provision of this surgery or even in the evaluation and treatment he received in the aftermath of it. To this end, 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 his informed consent. See 38 C.F.R. § 3.361(d)(1). And, unfortunately, the September 2008 VA compensation examiner discounted the notion of proximate causation due to any perceived negligence or substandard care. He concluded, instead, that the Veteran's additional disabilities (referring to the residuals of his left eye cataract surgery) are not at least as likely as not a result of any erroneous VA treatment or surgical procedure. This September 2008 examiner reasoned that fault for this additional disability is with the Veteran, himself, in failing to maintain continued follow-up contact as necessary for his treating physician to assess his post-operative course. In further discussing the underlying rationale for this unfavorable medical opinion, this commenting examiner indicated that "standard treatment and follow-up protocol for ocular surgery including cataract surgery of the Veteran's left eye was followed per review of VA records and claims folder." Indeed, while testifying during his June 2010 videoconference hearing before the Board, the Veteran clarified that he is not alleging VA fault or negligence, per se, in this unfortunate consequence of the surgery - especially since he admittedly cannot prove this anyway according to one of the other doctors he has consulted concerning the matter. Nevertheless, he believes losing his vision in this eye was not a reasonably foreseeable result or complication of the surgery, which, as mentioned, is an alternative basis for granting § 1151 compensation. Concerning this other possibility, the September 2008 VA examiner remarked, "I cannot render an opinion without resort to speculation as to whether the Veteran would not have developed residuals of his left eye cataract surgery had he followed instructions." A rather recent precedent case, however, admonished the Board for relying on medical opinions that also were unable to establish this required linkage, that is, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Other precedent cases also have been issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated a determination regarding service connection (or, here, § 1151 entitlement) requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began (or, here, whether a reasonably foreseeable consequence of the treatment at issue or the Veteran gave informed consent). Therefore, classifying a medical opinion as "non-evidence" because a commenting examiner could not come to a conclusion on this without resorting to mere speculation is "troubling." Also, in Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court held that an examiner's statement, which recites the inability to come to an opinion regarding this, provides neither positive nor negative support for the claim; therefore, it is not pertinent evidence regarding the claim. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service (or, here, since a § 1151 claim, the proximate, so not just actual, result of the VA treatment in question, such as by showing it was not a reasonably foreseeable consequence or complication or the Veteran did not give informed consent). Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). That is to say, the Board must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board's decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). See, too, Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). In contending that his left eye blindness was not a reasonably foreseeable consequence of his cataract removal surgery, the Veteran also alleges that he was never properly informed of this risk of blindness before his initial cataract operation at the VAMC. And, as mentioned, the September 2008 VA eye examiner did not address these additional issues. See 38 C.F.R. §§ 3.361(d)(1), (2), 17.32. Primarily for these reasons, the Board remanded this § 1151 claim in July 2010 for medical comment concerning these additional possibilities. The VA compensation physician designated to provide this additional comment responded in November 2010. After reviewing the claims file for the pertinent history, this examiner concluded, "I do not believe the involved surgeon showed any negligence or malpractice." This examiner reasoned that, "...[the VA treating surgeon] maintained appropriate follow-up and medical management and consulted the appropriate sub-specialty (retina) to help manage the retained lens material complication." The Veteran's assertion of the unavailability of necessary medical instruments was also rejected by this medical examiner. So, in short, the Veteran has not shown that VA failed to exercise the degree of care expected by a reasonable treatment provider. And as for whether there was informed consent, VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment, the expected benefits, reasonably foreseeable associated risks, complications, or side effects, reasonable and available alternatives, and anticipated results if nothing is done. See 38 C.F.R. § 17.32(c). In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that: (i) require the use of sedation; (ii) require anesthesia or narcotic analgesia; (iii) are considered to produce significant discomfort to the patient; (iv) have a significant risk of complication or morbidity; or (v) require injections of any substance into a joint space or body cavity. The informed consent process, including signed consent form, must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). The November 2010 VA examiner concluded the blindness in the Veteran's left eye was a reasonably foreseeable consequence or complication of his cataract removal surgery. This examiner explained that "[k]nown complications of routine cataract surgery include, but are not limited to, blindness secondary to bleeding, infection, and/or retinal detachment. As unfortunate as it is, yes, this [Veteran's] complications are well-known, established complications of cataract surgery..." And in a similar vein, this November 2010 VA examiner found that the Veteran had signed a surgical informed consent form on March 18, 2005, for cataract surgery on his left eye, which specifically listed risks including "loss of vision" and "loss of eye." Therefore, added this commenting VA examiner, "[a]lthough 'blindness' is not specifically used, it is reasonable to me that this surgery may result in legal blindness based on these risks indicated in the consent." So there is probative (competent and credible) medical evidence confirming the Veteran independently formed his decision to have the left eye cataract surgery and was fully informed of its potential complications and consequences. See 38 C.F.R. §§ 3.361(d)(2) and 17.32 (2010). Thus, these unfavorable VA compensation examiner's opinions provide highly probative evidence against the possibility of proximate causation and, ultimately, the Veteran's claim. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position.) The Veteran has not presented or identified any medical evidence refuting these VA examiner's unfavorable conclusions and, as mentioned, even acknowledged during his June 2010 videoconference hearing before the Board that no such contrary medical evidence is likely forthcoming. He is certainly competent, even as a layman, to comment on things within the perception of his five senses, such as losing his vision since his cataract surgery. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). On the other hand, the Veteran is not competent to comment on whether and to what extent this additional disability was actually and proximately caused by the VA surgical and follow-up treatment of his left eye cataract during 2005. This necessarily also requires consideration of medical evidence and opinions concerning whether there was negligence, reasonably foreseeable versus unforeseeable events following the surgery, and what constitutes informed consent for the surgery. And while it is true that these ultimately are factual, not medical, determinations, these determinations are based upon medical findings, so not just unsubstantiated lay testimony. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease that necessarily involved complex medical issues). The Board thus concludes that the preponderance of the evidence is against the Veteran's claim for § 1151 compensation. And as the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of this claim must be denied. ORDER The claim for § 1151 compensation for post-operative residuals of left eye cataract surgery is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs