Citation Nr: 1305987 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 12-02 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for bilateral macular degeneration with history of cataracts, due to medication prescribed by VA. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran did not experience additional eye disability due to VA medical treatment. CONCLUSION OF LAW The criteria for establishing compensation benefits under 38 U.S.C.A. § 1151 for bilateral macular degeneration with history of cataracts claimed to be the result of medication prescribed by VA are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In October 2009, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In November 2009 the Veteran submitted additional evidence along with a statement that he had no further information or evidence to give the VA in support of his claim. He requested that VA decide his claim as soon as possible. As to the duty to assist, VA has associated with the claims folder the Veteran's VA medical records and private medical records. The Veteran has submitted private medical statements and photocopies of his medicine bottle. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. The Board notes that the RO did not obtain a VA medical opinion addressing whether the Veteran's eye disability resulted from VA prescribed medication, on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (CAVC) reviewed the criteria for determining when a medical opinion is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c) with respect to service connection claims. The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. Although compensation under 38 U.S.C.A. § 1151 is awarded in the same manner as if the additional disability were service connected, a claim for benefits under section 1151 is not based upon service connection. Thus, this claim must be supported by medical evidence of additional disability that resulted from VA hospitalization or medical or surgical treatment, unrelated to the Veteran's military service. See Jimison v. West, 13 Vet. App. 75, 77-78 (1999). There is no indication that the Veteran has any additional eye disability resulting from VA hospitalization or medical or surgical treatment, as discussed below in detail. Therefore, the Board finds that the evidence of record does not trigger the necessity of an opinion in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In October 2006 the RO denied service connection for age related macular degeneration with cataracts, finding that there was no evidence that such was related to military service or to service-connected disability. An October 2008 rating decision determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for age related macular degeneration with cataracts. In October 2008 the Veteran submitted photocopies of his bottle of medication, Gabapentin. On one of the photocopies he wrote that he is allergic to the medicine and that it caused him partial blindness. The Veteran submitted statements from private physicians dated in December 2006 and August 2008 which note that the Veteran has macular degeneration. The statements provide no information regarding the cause of the Veteran's macular degeneration. In September 2009 the RO again determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for age related macular degeneration with cataracts. In October 2009 the RO received the Veteran's current claim. The Veteran asserts that he is entitled to compensation benefits under 38 U.S.C.A. § 1151 for bilateral macular degeneration with history of cataracts, due to medication prescribed by VA. In November 2009, the Veteran again submitted a photocopy of his bottle of Gabapentin medication and wrote on the photocopy that this medication caused permanent loss of vision in both of his eyes. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C.A. § 1151, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. As explained below, the Board finds that there is no credible evidence linking the Veteran's use of Gabapentin medication to any eye disability and that he is not entitled to compensation benefits under 38 U.S.C.A. § 1151 for bilateral macular degeneration with history of cataracts, due to medication prescribed by VA. The private medical records clearly show that the Veteran has been known to have macular degeneration and cataracts since at least August 1997. The multiple private medical records reveal that the Veteran's macular degeneration and cataracts increased in severity as time passed. VA treatment records in August 2005 show that the Veteran reported recent onset of numbness and shooting pains in his left lower extremity. A VA physician prescribed the Veteran Neurontin (Gabapentin). VA treatment records reveal that the Veteran called VA in September 2005 complaining that Gabapentin made him feel like he was on cloud nine. He said that he was sleepy and that his legs felt heavy. In a later phone conversation that day the Veteran told a VA nurse that he had stopped taking the Gabapentin because it made him lightheaded and he slept all the time. He said that he was barely able to walk or do anything. He denied current symptoms. Several days later the Veteran again called a VA nurse. The Veteran reported that his old symptoms of tingling, pain, burning, and itching had come back in his leg. He said that these were the problems he had prior to being placed on Gabapentin. He said that the Gabapentin took care of the symptoms, but it made him lightheaded. He reported that he tried taking one pill last Friday and had to go to bed because it made him so sleepy. Two days later, on September 15, 2005, the Veteran visited a VA physician. He reported to the VA physician that the Gabapentin had made him very dizzy. The VA physician prescribed the Veteran an alternative medication for treatment of his left ankle pain symptoms. Subsequent VA medical records make no reference to Gabapentin until February 2006. At that time the Veteran reported that he took Gabapentin in October 2005 for seven days and then noticed a decrease in his vision. Private ophthalmological records dated from August 1997 to February 2006 show treatment for cataracts and age related macular degeneration. These records show that cataracts were removed from the Veteran's eyes in November 2005. In a January 2010 statement the Veteran asserted that the VA medical records show that the VA medication caused his vision problems to increase dramatically. On his August 2010 notice of disagreement the Veteran stated that the VA medication caused his eyes to go bad suddenly and abruptly. In this case the Board specifically finds that the Veteran's statements that he experienced increased eye disability when taking the VA prescribed medicine are not credible. The contemporary VA treatment records from the time the Veteran took the Gabapentin medication are replete with the Veteran's reports of the side effects he experienced. At that time he stated that the medication caused him to feel light headed; made him feel like he was on cloud nine; made him feel sleepy; made his legs felt heavy; made him sleep all the time; and made him barely able to walk or do anything. The Board finds it telling that the Veteran made so many complaints at that time yet never complained that he noticed any effects on his eyes. He made no reference to Gabapentin affecting his eyes until February 2006, approximately five months after he stopped taking the medication. The fact that he was so vocal with so many detailed complaints of the side effects he experienced at the time he took Gabapentin and the fact that he made no mention of any effect on his eyes at that time, clearly contradicts his later statement that the Gabapentin caused his eyes to go bad suddenly and abruptly. The Board further notes that the many VA treatment records and many private ophthalmological medical records show extensive reference to the Veteran's eye disabilities and none of these records note any relationship between the Veteran's eye disabilities and his use of Gabapentin medication for a short time in September 2005. Although the Veteran has asserted that there is such a relationship, there is no indication that he has had any medical training. As such, his statements are considered lay evidence. Laypersons have been found to not be competent to provide evidence in complex medical situations such as in this ophthalmological question before the Board that clearly requires specialized medical training. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's statements regarding the relationship of his eye disabilities to medication are not competent. Given that there is no medical evidence relating any increase in eye disability to the use of VA prescribed medication, and given that the Board does not find the Veteran's after the fact complaints of experiencing eye problems while taking Gabapentin to be credible, the Board finds that the Veteran did not experience any increase in eye disability due to his use of VA prescribed medication. Given that the Board has found that the Veteran has not experienced any additional disability due to VA treatment, compensation under 38 U.S.C.A. § 1151 for bilateral macular degeneration with history of cataracts, due to medication prescribed by VA, is not warranted. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. (CONTINUED ON ORDER Compensation under 38 U.S.C.A. § 1151 for bilateral macular degeneration with history of cataracts, due to medication prescribed by VA, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs