Citation Nr: 1306749 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 06-10 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to Department of Veterans Affairs (VA) disability compensation under 38 U.S.C.A. § 1151 for additional disability as the result of right eye surgery at the Durham VA Medical Center on January 15, 2003. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and J.M. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1989 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2004 of the VA's Winston-Salem, North Carolina Regional Office (RO). In August 2007, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's file. In July 2011, the Board requested a VA medical expert opinion concerning the claim, pursuant to 38 C.F.R. § 20.901. The opinion has been received and the Veteran has been provided a copy of the opinion, to which she responded with additional argument and evidence. The Veteran waived initial consideration of the evidence by the RO. In a February 2012 decision, the Board denied the claim of entitlement to Department of Veterans Affairs (VA) disability compensation under 38 U.S.C.A. § 1151 for additional disability as the result of right eye surgery. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, the parties, the Veteran, who was then represented by counsel, and the legal representative of the Department of Veterans Affairs, the Office of the General Counsel, filed a Joint Motion to vacate the Board's decision and remand the case to the Board, which was granted by the Court. FINDING OF FACT In January 2003, the Veteran underwent right eye surgery at the Durham VA Medical Center, resulting in overcorrection with diplopia and image tilt, which was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, and which was a reasonably foreseeable event of the surgery. CONCLUSION OF LAW The criteria for disability compensation under 38 U.S.C. § 1151 for additional disability as the result of right eye surgery at the Durham VA Medical Center on January 15, 2003 have not been met. 38 U.S.C.A. §§ 1151, 5107(b) (West 2002 & Supp. 2011; 38 C.F.R. § 3.361 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided post-adjudication VCAA notice by letters, dated in January 2005, March 2006, and November 2007. The notice included the type of evidence needed to substantiate the claim under 38 U.S.C.A. § 1151, namely, evidence of additional disability, evidence of VA treatment, evidence of fault on the part of VA in providing the treatment, resulting in additional disability; or the additional disability was not a reasonably foreseeable event of VA treatment. The Veteran was notified that VA would obtain VA records and records of other Federal agencies and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any non-Federal records on her behalf. The VCAA notice included the general provision for the effective date of the claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated as evidenced by the supplemental statement of the case in September 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained relevant VA records and records of the Social Security Administration. The RO has made several attempts in 2008 and 2009 to no avail to obtain a December 2002 VA record regarding an evaluation of the Veteran to which the VA examiner in March 2004 referred. The Veteran was notified of this. The Veteran herself has submitted private medical records to include records from Pediatric Ophthalmology Associates and B.M., O.D. She has not identified any additionally available evidence for consideration in her appeal. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). VA medical opinions were obtained in March 2004 and December 2005, but the opinions were inadequate to decide the claim. In September 2011, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The opinion contains the Veteran's medical history, describes the disability in sufficient detail, and provides a rationale to support the conclusion reached in the opinion. The Board finds that the VHA opinion adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria As the Veteran's claim under 38 U.S.C.A. § 1151 was received after October 1, 1997, the following statutory and regulatory provisions apply. When a Veteran suffers additional disability as the result of surgical treatment by VA, disability compensation shall be awarded for a qualifying additional disability. A disability is a qualifying additional disability if the disability was caused by VA treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C.A. § 1151(a). A claim based on additional disability due to surgical treatment must meet the causation requirements. To establish causation, the evidence must show that VA's surgical treatment resulted in additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability does not establish cause. The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. Evidence Records from the Veteran's private optometrist indicated in November 2000 that the Veteran was seen with a complaint of diplopia, but not on primary gaze. The diagnosis was hypertropia. VA records show that in May 2002 the Veteran complained of double vision. She had a history of a lazy eye and surgery at age five relating to an eye injury. Following examination, the diagnosis was right hypertropia. Other records, dated in January 2003, note a two year history of double vision. VA records in January 2003 show that on a pre-operative note it was stated that the plans, risks, and options had been discussed with the Veteran and she consented to the surgery. On another form, the Veteran and her VA surgeon provided their signatures, documenting that an informed consent discussion had taken place regarding the surgery to address the Veteran's right hypertropia. On this form, it was noted that the Veteran was to undergo eye muscle surgery to both eyes (i.e., right inferior rectus resection, left inferior rectus, left inferior rectus recession on adjustable suture) to improve double vision, but that the surgeon may need to change the plan after the eyes were examined when the Veteran was asleep. The Veteran indicated her understanding of the nature of the proposed procedure, the attendant risks, and expected results. She agreed that the following had been fully explained to her, namely, the nature and purpose of the operation, possible alternative methods of treatment available and the attendant risks, including the possible consequences of not receiving the recommended treatment, the associated risks and benefits involved, and the possibility of complications. She acknowledged that no guarantees had been made to her concerning the results of the operation or procedure, and that she had been given the opportunity to ask questions. VA records show that on January 15, 2003, the Veteran underwent right eye muscle surgery (right inferior rectus recession) at the Durham VA Medical Center (VAMC), after a history of vertical double vision (right hypertropia). There were no intraoperative complications. After the surgery, the Veteran experienced double vision and image tilt (diplopia and torsion), evidently as a result of overcorrection. In February 2003, the Veteran complained of vertical double vision and a tilting image to the left when the left eye was closed. The surgeon discussed an additional procedure to address the overcorrection, including a discussion of the risks, benefits, and expected results of the procedure to which the Veteran agreed and wished to proceed. In March 2003, the Veteran was scheduled for additional eye surgery. In May 2003, the Veteran had to postpone her eye surgery for a personal reason. There is no evidence that the Veteran subsequently had the additional surgical correction or further treatment to improve her ocular alignment. In March 2004, a private physician with Pediatric Ophthalmology Associates noted the Veteran's subjective complaints of double vision in all directions of gaze except downgaze and of tilt when the left eye was covered. The private physician concluded that the Veteran's complaints were supported by objective findings on examination with the exception of true tilt which was generally noticed only with both eyes open. The physician stated that it was possible that further eye surgery might improve the Veteran's vertical misalignment, possibly giving her an improved range of single vision (later in the report, he felt certain that the Veteran's alignment could be improved with further surgery). The physician observed that the eye surgery did in fact correct the upward deviation of the right eye and improved the downward movement of the right eye, as intended, but that there was an unfortunate overcorrection such that the right eye was now lower than the left eye. He thought that the VA surgeon's choice to lower the right eye (instead of raising the left eye) was a reasonable option. Records of the Social Security Administration show that in January 2005 the Veteran was awarded disability benefits on the primary basis of strabismus and other disorders of eye movement. In her Social Security application filed in 2003, the Veteran stated that she had eye surgery in January 2003 because of a pre-existing eye disability, which was becoming progressively worse as she could not see well at night or in bright lights and she developed bad headaches. The Veteran stated that she was "leary" of undergoing further surgery, as success could not be guaranteed, and that she did not want to risk damaging her good left eye. She stated that the eye surgery had previously been scheduled twice since February 2003 and that the surgery was canceled. On Social Security forms dated in February and March 2003, the Veteran's VA eye surgeon described the Veteran's eye problems and noted that she was scheduled for additional surgery in April 2003. In a report in March 2004, the now-former Chief of Ophthalmology at the Durham VAMC noted the Veteran's complaints of constant double vision as a result of eye muscle surgery in January 2003, as well as reports of image tilt in her right eye. The physician reviewed the VA records, leading up to the surgery from May 2002 and the operative surgical report, providing commentary on the significant facts of the case to include the Veteran's ocular history. The physician noted that the Veteran's VA eye surgeon had evaluated the Veteran in December 2002 (a search for this record was unsuccessful) and documented in the progress note that the risks, benefits, and expected outcomes of the surgery were covered with the Veteran, who then signed the operative consent form. The physician noted that there were no intraoperative complications and that two weeks after surgery the Veteran reported binocular double vision associated with image tilt in the right eye. The pertinent findings were improvement in infraduction in the right eye, conversion of the vertical deviation to a left hypertropia, and 10 degrees of excyclotorsion in the right eye. Surgical correction was again discussed and agreed to, but in May 2003 the surgery was postponed due to the Veteran's son's school graduation. The VA physician commented that the diagnosis of right hypertropia was correct and surgical correction of the ocular misalignment was indicated. Also, the VA surgical procedure on the Veteran was appropriate for her condition, and was performed without complications. The VA physician stated that the VA surgery did play a role in the development of the left hypertropia associated with excyclotorsion of the right eye, but that overcorrections and under corrections are relatively common following strabismus surgery, and the frequency was somewhat higher with vertical deviations than with horizontal deviations. The VA physician stated that the history of prior eye muscle surgery further reduced a priori likelihood of achieving ocular alignment with just a single procedure. The VA physician did not find negligence or error on the part of the VA surgeon and stated that the occurrence of postoperative double vision and image tilt can rightly be characterized as an unpredictable and untoward outcome of care that was appropriate and properly delivered. The VA physician could not conclude that the Veteran's condition was permanent because the Veteran had not pursued all reasonable treatment options and that the Veteran was still a candidate for eye muscle surgery to improve her ocular alignment and reduce her symptoms, commenting that a majority of strabismus patients eventually achieve single vision in primary gaze with one or more surgical procedures with some requiring prism correction in their glasses after surgery. In December 2005, the current Chief of Ophthalmology at the Durham VAMC addressed whether the Veteran became more disabled as a result of her VA eye surgery, whether she received appropriate care by the provider, whether her surgical procedure occurred without proper informed consent, and whether her current disability was not foreseeable. The VA physician found that the risks, benefits, and alternatives to the surgery were discussed with the Veteran and that there was a high likelihood that more than one procedure would be required to achieve the desired end result, and that the Veteran was offered further surgical intervention to relieve her diplopia. The VA physician concluded that for the Veteran, who underwent VA eye muscle surgery for symptomatic diplopia, resulting in overcorrection, the overcorrection was expected in a re-operation [the Veteran had eye muscle surgery as a child] and it did not represent additional disability or negligence or lack of informed consent on the part of the treating physician. Given the Veteran's history, the VA physician expressed the opinion that the results of the surgery were not an unforeseeable event and that further surgery might improve her functionality and symptoms. As the VA medical opinions appeared to be somewhat in conflict with regard to determining additional disability from surgery and whether any additional disability was an event not reasonably foreseeable, the Board sought an advisory opinion through the Veterans Health Administration (VHA). The Board asked the following question: Are double vision and image tilt (diplopia and torsion) additional disabilities resulting from eye surgery by VA, and if so, were the additional disabilities events that were not reasonably foreseeable? The Board instructed that the standard for determining that an event was not reasonably foreseeable was whether a reasonable health-care provider would not have considered the results to be an ordinary risk of the treatment provided. In other words, the event was not the type of risk that a reasonable health-care provider would have disclosed in connection with obtaining informed consent. In a medical opinion dated in September 2011, the Chief of Ophthalmology at the Augusta, Maine VAMC stated that it was unlikely that the Veteran's residual double vision and image tilt were a result of VA eye surgery. The VHA expert explained that the medical records indicated that the Veteran had double vision prior to VA surgery, that she had an eye injury as a child with two previous eye surgeries (for eyelid repair and eye muscle surgery), that the pre-operative physical examination at VA revealed a hypertropia, and that the VA surgeon found scar tissue during the operation that restricted eye movement that presumably was from the prior injury and eye surgery. As for foreseeability, the VHA expert stated that the failure to improve diplopia was a reasonably foreseeable event, as the Veteran had a vertical diplopia with scar tissue from prior injury and surgery and no reasonable surgeon would guarantee a cure. The VHA expert explained that the Veteran's case was one were another attempt at surgery may improve her symptoms and that it was commonplace to inform patients that more than one surgical procedure may be needed to improve eye muscle alignment. The VHA expert noted that the Veteran had declined to have the second procedure when it was offered. Analysis Informed Consent A claim under 38 U.S.C.A. § 1151 may be established by showing carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing surgical treatment and the surgical treatment caused an additional disability and VA furnished the surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1)(ii). To determine whether there is informed consent, substantial compliance with the requirements of 38 C.F.R. § 17.32 is to be considered. Under 38 C.F.R. § 17.32, 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 practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient the nature of a proposed procedure or treatment, the expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if nothing is done. The patient must be given the opportunity to ask questions and to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient if the proposed treatment is novel or unorthodox. The patient may withhold or revoke her consent at any time. The informed consent process must be appropriately documented in the health record. On the question of informed consent, the Veteran has questioned the adequacy of the informed consent prior to the surgery. She conceded that she had signed a consent form, but argues that she was not notified that double vision would be a risk of the surgery. The Veteran asserted that she was informed she would be able to return to work in seven to 10 days. She also asserted that she was informed that the surgery would include adjustable stitches and that the operation would be performed on both eyes. The record shows that the surgery involved the only the right eye without adjustable stitches, that after surgery the Veteran struggled with double vision, that she did not return to work after the surgery, and that she received disability benefits from the Social Security Administration because of her eye. The consent form signed by the Veteran shows that the plan was to operate on both eyes, which was subject to change by the surgeon during the surgery. Also, while the consent form does not contain specific language about persistent double vision as a risk after the surgery, the Veteran had double vision going into the surgery and she was informed the purpose of the operation was to improve her double vision, and that there was no guarantee as to the results of the operation. In signing the consent form, the Veteran indicated her understanding of the nature of the proposed procedure, the attendant risks, and expected results. She agreed that the following had been fully explained to her, namely, the nature and purpose of the operation, possible alternative methods of treatment available, and the attendant risks, including the possible consequences of not receiving the recommended treatment, the associated risks and benefits involved, and the possibility of complications. She acknowledged that no guarantee had been made to her concerning the results of the operation or procedure, and that she had been given the opportunity to ask questions. Although the consent form does not indicate that the Veteran was specifically informed that she may experience worsening double vision following eye surgery, the Veteran was informed of the possibility of complications and that there was no guarantee of the results of the surgery. Stated differently, while the surgery was intended to improve her vision, there was the risk of no improvement or complications, namely, that which would make her vision worse. The Veteran is competent to state that she was not notified of the risks of the surgery. Competency and credibility are to be distinguished. Inconsistencies in the Veteran's statements diminish the probative value of her assertions. For example, in March 2004, a private physician determined that driving or work, requiring good depth perception, could be accomplished with adaptation and that a successful trial of prism would allow the Veteran to drive with both eyes. The private physician stated that the Veteran's subjective complaint of image tilt only when the left eye was covered was inconsistent with objective findings. It was noted that, in general, patients sense tilt only in one eye relative to the other eye, so that tilt is not noticed unless both eyes are open. Further diminishing the probative value of her assertion of having not given informed consent, in March 2006 in her substantive appeal the Veteran asserted that she was unable to engage in activities, such as playing ball, due to her eye condition since the surgery in 2003. In October 2001 VA records show that the Veteran stopped playing ball due to her left ankle. In June 2004, the Veteran stated that she was unable to go out alone due to visual impairment. In July 2004, it was noted that she went to a flea market alone. In August 2004, she stated that she did not go out because of her left ankle disability. The Veteran's spouse stated that the Veteran has been unable to do anything requiring hand and eye coordination since the surgery in January 2003. VA treatment records in August 2003, in September 2003, and in January 2004 show that the Veteran was able to perform the activities of daily living independently. In August 2006 it was noted that the Veteran stayed at home and took care of her 13 year old son. In a statement in September 2003, the Veteran asserted she has headaches as a result her eye condition, but in April 2001 VA records show that she had frequent sinus headaches. As for her assertion of developing mental health issues, because of the eye surgery, in October 2001, it was noted that the Veteran had difficulties at work and marital stress. In November 2011 in statement, the Veteran stated that she had no difficulty reading, driving, or seeing, other than over her right shoulder prior to the eye surgery in 2003. VA and private records document complaints of diplopia in the right eye with far lateral gaze in April 2001, vision problems in April 2002, and tired eyes when working on a computer in May 2002. The Board finds the Veteran's contemporaneous acknowledgement of the risks of surgery to be far more probative and reliable than her current assertions, which the Board finds to be not credible. Moreover, even if the VA physicians failed to provide information to the Veteran about the potential adverse effects of the eye surgery, such would not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. See McNair v. Shinseki, 25 Vet. Ap. 98 (2011); 38 C.F.R. § 3.361(d)(1)(ii) (2012). Based on the nature and severity of the Veteran's double vision, the Board concludes that a reasonable person faced with similar circumstances would have proceeded with the surgery to reduce the double vision. On the basis of the evidence of record, the Board finds substantial compliance with the requirements of 38 C.F.R. § 17.32 as to the content of the consent form signed by the Veteran and the Board concludes that the Veteran's consent was informed consent. And the Veteran's statements to the contrary are not credible in light of the inconsistencies in the Veteran's statement and inconsistencies with other evidence in the record. Additional Disability A claim under 38 U.S.C.A. § 1151 may also be established by showing carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing surgical treatment and the surgical treatment caused an additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In January 2003, after obtaining informed consent, the Veteran underwent right eye surgery, which was performed by VA. On the question of whether the Veteran had any additional disability as a consequence of the right eye surgery, the Veteran asserts that she has suffered from additional disability since her eye surgery, noting that she was no longer able to perform the job she had prior to the surgery and that she had received a favorable decision for disability benefits from the Social Security Administration. A private examiner in March 2004 found that the January 2003 surgery actually improved some functionality of the right eye, but also represented an overcorrection of the right eye. The VA examiner in March 2004 stated that the VA surgery contributed to the development of left hypertropia associated with excyclotorsion of the right eye, adding that overcorrections were common after strabismus surgery. The VA examiner in December 2005 stated that the VA surgery for symptomatic diplopia resulted in overcorrection, which did not represent additional disability. The record shows that the Veteran had ocular misalignment (right eye diplopia) prior to the surgery and continued to have a problem with diplopia following the surgery. What resulted from the eye muscle surgery was by all accounts an overcorrection, such that the Veteran experienced an increase in symptoms - diplopia and image tilt - as her ocular misalignment persisted. In other words, her ocular disability remained, but was manifested with different symptoms that were worse than before the surgery. On the basis of the evidence of record, the Board finds that the eye disability was worse after the right eye surgery by VA as manifested by overcorrection of the ocular alignment leading to increased symptoms of diplopia and image tilt. Fault With evidence of additional disability due to surgery by VA, the next questions are whether the additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing surgical treatment and whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. On the question of fault, both private and VA physicians are in agreement in expressing the opinion that the Veteran's post-surgical condition was not due to carelessness, negligence, lack of proper skill, or similar instance of fault on part of the VA and that VA had exercised the degree of care that would be expected of a reasonable health care provider. The private physician in March 2004 remarked how the eye surgery corrected the upward deviation of the right eye and improved the downward movement of the same eye, as was intended, but in doing so an overcorrection of the eye occurred. The physician found that it was reasonable that the VA surgeon chose to lower the right eye instead of raising the left eye. There is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. In the VA reports of March 2004 and December 2005, the VA examiners did not find negligence or error on the part of the VA surgeon. The VA examiners found that the level of care was appropriate and properly delivered. The Board finds the medical opinions to be highly probative, which oppose, rather than support, the claim. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). There is no medical opinion in the record to indicate that the VA surgeon failed to exercise that degree of care that would be expected of a reasonable health care provider. From this the Board concludes that the surgery by VA was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part and it is not shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. An Event Not Reasonably Foreseeable Apart from fault and additional disability and informed consent, or fault and additional disability and the degree of care that would be expected of a reasonable health care provider, a claim under 38 U.S.C.A. § 1151 may also be established by showing that the additional disability was an event not reasonably foreseeable, which is 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 informed consent. 38 C.F.R. § 3.361(d)(2). On the question of whether the additional disability, overcorrection with continuing diplopia and image tilt, was an event not reasonably unforeseeable, the VA examiner in March 2004 stated that the Veteran's postoperative double vision and image tilt could be described as "an unpredictable, untoward outcome of care." He also noted earlier in his report that such overcorrections are fairly commonplace occurrences after strabismus surgery, and that the odds of such happening were higher where there was a vertical deviation, as was the case with the Veteran, than where there was a horizontal deviation. The VA examiner in December 2005 expressed the opinion that the Veteran's overcorrection after surgery was an expected result of an eye muscle re-operation, and the result of her surgery was not an unforeseeable event. The VHA expert likewise found the failure to improve diplopia was a reasonably foreseeable event, given the Veteran's vertical diplopia with scar tissue from a prior injury and prior surgery. The VHA expert also answered the question in the affirmative that the post-operative results were the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Considering the details of the opinions, the evidence supports a finding that the post-operative results were reasonably foreseeable and the evidence of foreseeability opposes the claim and outweighs the evidence that the post-operative results could be described as "an unpredictable, untoward outcome of care," when the opinion did not address whether the post-operative results were the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. The Board places greater weight on the opinion of the VHA expert because the VHA expert's opinion explained that the post-operative results were the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. The Veteran's Lay Statements or Opinions VA must give due consideration to all pertinent lay and medical evidence. 38 U.S.C.A. § 1154(a). In statements and testimony, the Veteran maintains that disability compensation is warranted under 38 U.S.C.A. § 1151 on the basis of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part during a surgical procedure she underwent on her right eye in January 2003. The Veteran asserts that her vision was made worse by the surgery, alleging that the surgery resulted in double vision and image tilt (diplopia and torsion). She argues that she did not have permanent double vision prior to the surgery and had worked up until the surgery, but that after the eye surgery she could no longer perform her job and the Social Security Administration found in her favor based on her disabling visual defects. She testified that post-surgery problems were not explained to her and that she was told she would be able to go back to work in seven days. The Veteran asserted that other disabilities that have developed since the eye surgery, which she attributes to her postoperative vision problems, including neck and back pain, migraines, and depression. The Veteran stated that she was dismayed to learn after the surgery that only her right eye had been operated upon and that there was no way to adjust her vision, and that her vision was overcorrected to the point it could not be undone or fixed. The Veteran as lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). To the extent the Veteran's statements are offered as a lay opinion on the question of additional disability by reason of fault on the part of VA in performing the eye surgery or on the question of additional disability not reasonably foreseeable, resulting from the surgery, the Veteran as lay person is competent to offer an opinion on a simple medical condition. As a lay person, the Veteran's statements or opinions are limited to inferences that are rationally based on the Veteran's perception and do not require specialized education, training, or experience. While the Veteran is competent to describe her symptoms and the events surrounding the surgery, the question of fault on the part of VA or on the question of additional disability not reasonable foreseeable are not simple medical conditions that can be determined by the Veteran based on inferences gained by her own personal knowledge, that is, perceived through the use of her senses without specialized knowledge, education, or experience. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the questions of fault on the part of VA or on an event not reasonably foreseeable. As for the Veteran's statement that her vision cannot be improved, both private and VA physicians stated that further eye surgery might improve the Veteran's vision. A private physician in March 2004 expressed the opinion that further surgery could improve the Veteran's ocular alignment. In March 2004, a VA examiner stated that the Veteran was still a candidate for eye muscle surgery to improve her alignment and reduce her symptoms, as a majority of patients like her required one or more surgical procedures to achieve single vision in primary gaze. In December 2005, a VA examiner agreed that further surgery might improve her functionality and symptoms. In September 2011, the VHA expert stated that it was common for patients to be notified that they may require more than one surgical procedure to improve eye muscle alignment. Although the Veteran was scheduled in 2003 to undergo further eye surgery, she canceled the procedure and evidently has not pursued any further surgery. For these reasons, the Board rejects the Veteran's lay statements and testimony as competent evidence to substantiate the claim. In short, there is no competent, independent medical evidence to support the Veteran's assertions regarding questions of fault on the part of VA or on an event not reasonably foreseeable. As there is no favorable competent evidence to support the claim as articulated above, the preponderance of the evidence is against the claim for VA disability compensation under 38 U.S.C.A. § 1151 for additional disability as the result of right eye surgery at the Durham VA Medical Center on January 15, 2003, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER VA disability compensation under 38 U.S.C.A. § 1151 for additional disability as the result of right eye surgery at the Durham VA Medical Center on January 15, 2003 is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs