Citation Nr: 1306853 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-31 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for status post epitheliopathy of the left eye as a result of VA treatment. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from November 1962 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas denied entitlement to compensation under 38 U.S.C.A. § 1151 for status post epitheliopathy of the left eye as a result of VA treatment. During the current appeal, and specifically in August 2012, the Veteran testified at a hearing conducted at the Houston RO before the undersigned Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2012) and who is rendering the determination in this case. A transcript of the testimony has been associated with the Veteran's claims file. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has suffered deteriorating vision in his left eye since undergoing a bleb revision procedure at the Miami VA Medical Center (VAMC) in July 2008. At the August 2012 hearing, the Veteran testified that during a routine treatment visit with his VA eye care specialist, he was informed that the intraocular pressure behind his eyes was "too high" and a "bleb needling" procedure would be necessary to relieve the pressure. According to the Veteran, the VA eye care specialist reportedly informed him that this procedure was medically necessary to prevent any loss of vision in his left eye. This eye care specialist also reportedly informed the Veteran that it would be too risky to wait and perform the procedure on his right eye (his then-worse eye) to determine what type of complications may arise from, or be associated with this procedure. See August 2012 Hearing Transcript, pp. 2-3. According to the Veteran, this "error" and "rush to judgment" resulted in a 90 percent loss of vision in his left eye (his more functional eye at the time), and his vision has never returned to the level it was prior to this procedure. See Hearing Transcript, p. 4. In order to warrant compensation under 38 U.S.C.A. § 1151, the Veteran must demonstrate that the VA treatment in question resulted in an additional disability and 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 surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. See 38 C.F.R. § 3.361 (2012). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. Id. Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. Id. A review of the Veteran's post-service medical records reflects an ongoing medical history of open-angle glaucoma that was more advanced in the right eye, and cataracts. The records also show that the Veteran underwent a trabulectomy with Mitomycin C (MMC) in the right eye in April 2008, and in the left eye in May 2008. During a June 2008 VA Outpatient visit, the treatment provider noted that the Veteran's intraocular pressure (IOP) was uncontrolled at his last visit. A July 2008 procedure note reflects that the Veteran underwent a bleb revision procedure in the left eye, that was performed by a VA ophthalmologist, T.L, M.D., and took about six minutes to complete. The Veteran's post-procedure diagnosis was primary open-angle glaucoma (POAG) of the left eye. Dr. T.L. did not observe any complications subsequent to the procedure, and the Veteran was discharged and sent home afterwards. However, subsequent VA treatment records dated from July 2008 to August 2008 reflect the Veteran's complaints of blurry vision in the left eye. During a July 2008 outpatient visit, the attending ophthalmologist noted that the Veteran was status-post bleb needling (revision of trabeculectomy) of the left eye with corneal epithelial defect since. Results from a slit lamp examination (SLE) of the left eye were described as "deep and quiet with an elevated superior bleb" and the cornea had a "whorled epithelial defect patter." The Veteran was assessed with epitheliopathy of the left eye, and bandage contact lens was inserted into the left eye. In an August 2008 addendum opinion, the attending ophthalmologist present at the time of the July 2008 procedure, S.W., M.D., noted that the Veteran had a severe corneal epitheliopathy since the time of the bleb needling of the left eye several weeks prior. She further noted that his bandage contact lens was removed and the cornea appeared improved with improved vision and less discomfort. The Veteran was afforded a VA examination in connection to his claim for compensation under 38 U.S.C.A. § 1151 in January 2009. During the examination, the Veteran reported that he began experiencing residual symptoms, to include foggy vision on bright sunny days, night vision difficulties, and recurring pain after undergoing the July 2008 bleb needling procedure. Based on a review of the claims file, as well as a discussion with and evaluation of, the Veteran, the VA examiner assessed the Veteran with advanced POAG status post bilateral trabeculectomies, argon laser suture lysis x 2; blepharitis/dry eyes; and status post epitheliopathy of the left eye post bleb needling procedure. According to the VA examiner, it was less likely than not "that there was any carelessness, neglect, lack of proper skill, error in judgment or fault on the part of the VA in providing hospital care and medical treatment." The examiner also stated that it was more likely than not that the Veteran's corneal epitheliopathy was the result of an event not reasonably foreseeable by the hospital or surgeon. According to the VA examiner, appropriate consent was obtained from the Veteran prior to treatment and the Veteran has experienced a reduction in visual acuity in his more functional left eye which cannot be resolved without resorting to mere speculation. The VA examiner further stated that: "careful inspection of the records indicates that appropriate procedures were followed and that the surgery in question was performed due to scarring and failure of the bleb created during trab surgery on the left eye. The surgery did improve the functioning of the bleb in question insofar as there was a reduction in intraocular pressure. The epitheliopathy was an apparent unforeseen complication which was treated appropriate post-surgically. Although 2 tiny scars remain, the cornea is currently intact overall." Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2012). Minor deviations from the requirements of § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). 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). Although the January 2009 VA examiner determined that the Veteran's corneal epitheliopathy was an unforeseen complication, he or she also stated that appropriate consent was obtained from the Veteran prior to treatment. While the July 2008 treatment report reflects that the Veteran was informed of the benefits and risks of the bleb revision procedure, there is no documentation evidencing the Veteran's knowledge, awareness and consent to these procedures. Indeed, there are no signed consent forms associated with the claims file. As such, the Board is left to question whether the "appropriate consent" referenced by the January 2009 VA examiner discussed and/or included the potential and unforeseeable risk of corneal epitheliopathy. The Veteran's VA treatment records reflect an ongoing diagnosis of primary open-angle glaucoma that is worse in the right eye as early as December 2004. A review of the more recent VA treatment records dated from the time of the July 2008 bleb revision procedure to the present, reflects the Veteran's complaints of deteriorating vision in both eyes as well as ongoing diagnosis of POAG that is advanced in the right eye as opposed to the left eye. However, in a July 2009 addendum report, the VA staff ophthalmologist, A.L., M.D., noted that the Veteran's vision problems in his left eye were more likely due to his glaucoma, and added that "clinically the vision, optic nerve cupping, and optic nerve pallor do not agree completely." As such, the record is unclear as to whether the Veteran's deteriorating vision in the left eye is due to the July 2008 bleb revision procedure, or simply a natural progression of his pre-existing glaucoma. The record is also unclear as to whether the July 2008 bleb revision procedure may have worsened and/or aggravated the Veteran's glaucoma. Where the record before the Board is inadequate to render a fully informed decision, a remand to the Agency of Original Jurisdiction (AOJ) is required in order to fulfill its statutory duty to assist that veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). After reviewing the January 2009 medical opinion, the Veteran's testimony, and the more recent VA treatment records scanned into the Virtual VA claims processing system, it is the opinion of the Board that the information does not address whether the Veteran had informed consent prior to the July 2008 bleb revision procedure. Accordingly, it is the Board's opinion that a remand is necessary to obtain documentation of the Veteran's consent forms, as well as a clarifying VA medical opinion for the purpose of determining whether the Veteran is entitled to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for medical treatment provided by VA. Accordingly, the case is REMANDED for the following action: 1. Obtain the complete clinical or hospital records from the Veteran's July 2008 bleb revision procedure of the left eye at the VAMC in Miami, Florida, including all surgical reports, nurse's notes, and informed consent forms, and any other applicable records. Efforts to obtain these records must continue until it is concluded that the information sought does not exist or that further attempts to obtain it would be futile. See 38 C.F.R. § 3.159(c)(2). In the event the RO/AMC is unable to obtain these records, the appellant must be provided with oral or written notice of that fact, in accordance with 38 C.F.R. § 3.159(e). 2. After all the Veteran's medical treatment records have been obtained and included in the claims folder, the AOJ should make appropriate arrangements for the Veteran to be examined by a retinal specialist or, at the very least, an ophthalmologist who regularly performs surgeries on the eyes. The examiner should not be performed by an optometrist, nurse, a nurse practitioner, or a physicians' assistant. The claims folder, all records on Virtual VA, and a copy of this remand are to be made available to the medical examiner to review prior to the examination. The VA physician should be requested to review the claims folder and the records on Virtual VA and state that this has been accomplished in the examination report. All necessary tests should be conducted and the VA physician should review the results of any testing prior to completion of the report. The VA physician should then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the July 2008 bleb revision procedure in the left eye resulted in any additional disability(ies); and if additional disability(ies) did result from this procedure, the VA physician should offer an opinion as to whether the proximate cause of any such disability(ies) or aggravation was the result of either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment; or (ii) an event not reasonably foreseeable. If this is the case, please specify what measurable increase in the severity of the current left eye disability(ies) is due to medical treatment provided by VA. [Of particular importance here is the examiner's review of the July 2008 procedure note.] In answering these questions, the VA physician should also provide an opinion as to what the normal or standard practice of treatment is when a patient's intraocular pressure is shown to be high or 'uncontrolled.' Specifically, the VA physician should discuss whether the Veteran's post-service treatment records prior to the July 2008 bleb revision procedure indicated that the Veteran's intraocular pressure was at a level that necessitated an immediate bleb revision procedure. If so, the VA physician should further discuss whether the normal or standard course of treatment would have been to perform a bleb revision procedure on what was considered the worse eye, rather than the more functional eye. The examiner should provide a complete rationale upon which his or her opinions are based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. When the development requested has been completed, the RO/AMC should readjudicate the issue on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is certified to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).