Citation Nr: 1307085 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 99-05 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left eye injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claim is now properly before the RO in Detroit, Michigan. The Board notes the Veteran requested a Travel Board hearing in his December 2005 substantive appeal. Subsequently, in April 2006, the Veteran indicated that he wanted a videoconference hearing in lieu of the in-person hearing. However, in October 2008, the Veteran requested a local hearing with a Decision Review Officer (DRO) instead of a Board hearing. The Veteran testified at a DRO hearing in January 2009. A transcript of that hearing has been associated with the claims file. This appeal was previously before the Board in February 2010. The Board remanded the claim so that treatment records could be requested and the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, he suffered an injury or an aggravation of an injury that resulted in additional loss of sight in his left eye as a result of VA failing to provide timely and proper treatment for a detached retina. CONCLUSION OF LAW The criteria for the entitlement to compensation under 38 U.S.C. § 1151 for residual of a left eye injury been met. 38 U.S.C. § 1151 (West 2002 & Supp. 2011); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim to for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left eye injury, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Laws and Regulations 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. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 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. Minor deviations from the requirements of 38 C.F.R. § 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). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Factual Background and Analysis The Veteran asserts that a delay in treatment by a VA medical center resulted in increased loss of sight in his left eye. He reports that he experienced a detached retina in December 2002. He sought treatment in January 2003, and was initially scheduled for surgery in March 2003; however, this surgery was cancelled and VA failed to reschedule him for retina surgery for more than a year at which time it was determined that surgery would no longer be useful. The Veteran maintains that the VA was negligent in the delay of surgery to his left eye, which eventually caused him to become legally blind in the left eye. In October 1988, the Veteran underwent surgery on his left eye for a ruptured globe at a private facility (Kresge Eye Institute). The injury to his left eye was caused by a stab wound. On post-operative day two the Veteran had count finger vision in the left eye, and the wound was intact. The claims file contains Social Security Administrative records and the associated medical records. These include a January 1997 optometry record from the VA Canton clinic. He was noted to have a stab wound to his left iris with a resultant irregular pupil. His left eye vision was noted to be 20/50-150 with binocular crossed-cylinder findings of +1.00. Another treatment record noted the Veteran had a corneal scar secondary to trauma, as well as traumatic iridodialysis and cataracts. The potential for traumatic glaucoma was discussed. He continued to have vision in his left eye. A May 1998 treatment record noted the Veteran's left eye pupil was irregular and fixed. Pterygium extended from the inner eye continued towards the pupil. A January 2003 VA treatment record noted that the Veteran was being seen on consult for a possible left retinal detachment. The reason for the consultation was recorded as: during a January 15, 2003 eye examination at the VA Canton clinic, Veteran reported "decreased visual acuity in his left eye...noticed 3-4 weeks ago. Was seen yesterday...[Veteran] has retinal detachment in the left eye with the [macula] being off." The Veteran was scheduled for the retina clinic on January 22, 2003. A July 2003 VA treatment record is the next most recent record following the diagnosis of the Veteran's retinal detachment. The record notes "retinal tear, left eye and has had no follow up." In October 2003, the Veteran was seen in an optometry outpatient clinic with the Cleveland VA medical center (VAMC). He was noted to have been seen in February 2003 for left retinal detachment with macula off. He was able to see to count fingers at two feet at that time. The Veteran reported he was scheduled for surgery in February; however, due to equipment failure, surgery was not performed. He was noted to have been seen in Optometry in August 2003, with the ability to see hand motion at three feet. The optometrist noted the Veteran would be "put on the surgery list." An October 2003 ophthalmology referral noted the Veteran was "seen last in August 2003 with macula off retinal detachment. Said retinal surgery would be scheduled for him in the next 5 months-[Veteran] getting anxious waiting for surgery, please contact and schedule or make other recommendations." Numerous attempts were made to obtain treatment records for any eye treatment between January 2003 and March 2004, but no records have been obtained. The Board has thoroughly reviewed the seven volumes of the Veteran's claims file as well as Virtual VA treatment records, but no additional 2003 VA records were present despite the Board's February 2010 directive to obtain these missing records. While the RO/AMC made attempts to obtain the records, no additional records were obtained and the RO/AMC did not issue a formal finding of unavailability. The Veteran's claim for 38 U.S.C.A. § 1151 compensation was recorded in September 2004. There is an indication the Veteran was seen in February 2004 and found to be legally blind at that time; however, this record is not contained in the claims file or in Virtual VA. A March 2004 record is the earliest record which notes the Veteran is legally blind in his left eye. A September 2004 VA treatment record notes the Veteran is "unhappy with his detached retina which is inoperable now." He indicated he "filed a petition for tort since he was not operated on in the past." A January 2005 record noted the Veteran had no light perception in his left eye for the prior 8 months (since April 2004). In June 2005, a physician provided a negative nexus opinion between the Veteran's loss of sight in his left eye and VA's treatment. Dr. R.T. indicated that the Veteran's 1988 stab wound to his left eye was the trauma that led to his eventual retinal detachment. Dr. R.T. noted the Veteran waited 3-4 weeks to seek treatment for his detached retina/decreased vision. Dr. R.T. noted that a detached retina is a "true medical emergency" and once discovered the Veteran should have been put on bedrest with certain positioning of the head until surgery could be performed. "In other words, certain unrepairable damage was already done before he was seen by VA." Dr. R.T. noted that VA initially scheduled surgery, but that "it is more likely that it would not have helped his condition at that point." Dr. R.T. also opined that VA was not negligent. Dr. R.T. submitted an internet article on retinal detachment which noted that it should be treated as a "medical emergency" that can result in blindness and that treatment should be sought immediately. A September 2005 VA treatment record noted the Veteran's chronic macula off retinal detachment was spontaneous, but that he had a prior history of trauma to his left eye. The Veteran reported he was to have retina surgery in 2003 but that it was canceled, and that at his last examination he was told the detachment was too old to expect visual recovery, and thus he declined surgery. An April 2006 ophthalmology treatment note indicated that surgery for his retinal detachment was deferred because of poor visual potential. The note does not indicate if the poor visual potential was present when the Veteran first reported for treatment in January 2003 or was a more recent development. In August 2006, the Veteran reported to mental health treatment providers that he was supposed to have surgery for a detached retina but the "machine" was broken and he could not have the surgery. He was then told in 2004 that it was too late to have surgery. The Veteran testified at a DRO hearing in January 2009 in support of his claim. He reported that after suffering a stab wound to his left eye in 1988 he underwent surgery at the Kreskey Eye Institute, and his vision after surgery was roughly 25/20. He stated that in December 2002 he suffered a retinal detachment. He was referred to the Cleveland VAMC in February 2003 and was scheduled for surgery in March 2003. He reported to the Cleveland VAMC on March 5, 2003 for his surgery and was informed the surgery was cancelled because "the machine used in retina surgery was broken." He was told his surgery would be rescheduled. He stated he called the Cleveland VAMC Ophthalmology Department to determine when his new surgery date would be, and was told it would be another six weeks. In the following six weeks he was not contacted to reschedule surgery. He stated that in July 2003 he went to the Canton clinic and asked the patient representative if she could call the Cleveland VAMC for a referral to another VA facility or a private facility. He reports the Cleveland VAMC told the patient representative to send him to the Columbus clinic and have the optometrist there refer him to the Cincinnati VAMC. The Veteran indicated this did not make sense to the representative, and so instead they set up another appointment with a Canton clinic optometrist, so that he could be referred to the Cleveland VAMC again. He reported seeing the optometrist in Canton in August 2003, and was referred to an ophthalmologist in Cleveland in September 2003. The Veteran reports that he was given glasses during the September 2003 appointment and was scheduled for another appointment in February 2004. During the February 2004 appointment he was informed that the retinal surgery had been put off too long and that surgery would no longer improve his eyesight. The Veteran then testified the February 2004 ophthalmologist indicated that if he had undergone surgery in March 2003, then he would have regained sight in his left eye. In September 2010, a VA evaluator reviewed the available medical records and interviewed the Veteran. The evaluator was asked to render an opinion on the Veteran's claim. The Veteran recalled that in March 2003 the Veteran's vision was hand motion or count fingers. He was scheduled for surgery in March 2003, but the surgery was cancelled because a machine was broken. Six weeks later the machine was still broken so he was seen again at the Canton clinic, and was then referred to the Wade Park VA. During a follow-up appointment in February 2004, he was told the retinal surgery was put off for too long and would no longer be useful. After examination of the Veteran, the evaluator noted he had a funnel retinal detachment of the left eye, resulting in no light perception blindness. He additionally had traumatic corneal and iris scarring with bulbous keratopathy likely originating from the 1988 stab wound. The VA evaluator noted that the claims file did not include the original data from ophthalmic evaluation immediately upon diagnosis and during the year follow-up period in question. "Without that primary data, we cannot comment on the medical likelihood that a delay in treatment for the retinal detachment is the reason the [Veteran] is now blind in his left eye." The Board sent the claims file to an independent medical examiner (IME) for review and an opinion regarding VA's treatment and the Veteran's eventual left eye blindness. In November 2012, the IME noted that among the volumes of records for the Veteran, only a few referred to his eye findings at the time of his retinal detachment, and that there were no original records of the actual examination findings at the time of his diagnosis, nor records detailing the reasons for postponing retinal detachment repair or recommendations for follow-up. Based on the available evidence, the IME opined that it is likely that the total loss of vision in the Veteran's left eye was caused by a delay in surgical repair of the detachment. However, the IME noted that the Veteran delayed seeking medical attention for his retinal detachment for at least several weeks, and that "it is possible the retina was already damaged enough by the time he presented for treatment that the chance of successful repair was low." The examiner noted that this was suggested by the January 2005 opinion. The IME noted that without the ophthalmologist report of the condition of the retina in 2003, he "cannot assess the likelihood of success of surgical repair if it had been performed soon after he first presented." The nearest available treatment record, from October 2003, indicated the Veteran could count fingers at a distance of two feet. Based on this record, the IME noted that "although it may have been possible to surgically reattach the retina at that time, it is likely that [the Veteran] would not have recovered substantial visual function by that time." The IME then noted that "if there was a plan to take the patient to surgery, [the IME] assumes that the ophthalmologist had determined that an attempt at surgical repair was not entirely futile, but the likelihood of success may have been low. Therefore, although prompt surgical repair at the time [the Veteran] first presented may have stabilized the eye, his visual acuity was already markedly diminished, and he may have had the same outcome of total vision loss even with prompt surgical treatment." The IME concluded that "nothing in the record demonstrates carelessness, negligence or lack of proper skill, error in judgment or other fault on the part of the VA." He also noted that total loss of vision is the expected outcome for a complete retinal detachment, and that "lack of timely surgical repair would be expected to lead to [total blindness]. However, based on my review of the records, it appears more likely that the delay in treatment was from the delay in the [Veteran] seeking treatment rather than from negligence on the part of the VA." In a January 2013 written statement, the Veteran indicated he could see farther than two feet with his left eye in January 2003. The Board finds that the evidence is in relative equipoise regarding whether VA's failure to properly and timely treat the Veteran's left eye retinal detachment off macula proximately caused the continuance or natural progress of his detached retina into loss of light perception blindness in his left eye. The Board also finds that the evidence is in relative equipoise regarding whether VA's failure to provide the Veteran with retinal detachment surgery in a timely manner was a failure on VA's part to exercise the degree of care that would be expected for a reasonable health care provider. As such, the Board will resolve reasonable doubt in the Veteran's favor, and finds that compensation under38 U.S.C.A. § 1151, for additional left eye injury as a result of a failure to provide retinal detachment surgery is warranted. The Board notes that the June 2005 and November 2012 evaluators found that the Veteran's failure to seek treatment for his detached retina for several weeks was more likely the cause of his eventual left eye blindness than the VA's failure to provide retinal surgery for 13 months. However, the November 2012 and September 2010 evaluators noted that the VA records from the time of the initial treatment for the left detached retina are not in the claims file. Attempts by the RO/AMC did not result in the inclusion of these missing records. The claims file contains some records from 2003 and 2004, but is specifically missing any records pertinent to determining the severity of the Veteran's injury when he first presented for treatment and for any follow-up treatment for nearly a year. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has provided specific dates and details regarding treatment for his retinal detachment which appear to be accurate as related to the available records in the claims file. The Veteran has also indicated that he was scheduled for retinal surgery in March 2003 and that the surgery was cancelled due to a "broken machine." He was not rescheduled for surgery and had to report to several other appointments just to get referred to an ophthalmologist again. Not only did the Veteran report this history to the VA in regards to his current claim, but he reported his frustration to other VA treatment care providers, and thus there is a record of his "anxiety" regarding his level of sight and VA's failure to schedule him for surgery. Based on the evidence of record, the Board finds the Veteran to be credible in his description of the events and timeline regarding his treatment for his detached retina. As such, the Board also finds the Veteran's report that he could see better in January 2003 when he first sought treatment for his detached retina than he could in February 2003, when he could see to count fingers at two feet to be credible. Additionally, the Board is inclined to find the Veteran's statement that his ophthalmologist in February 2004 told him that if he had retinal detachment surgery sooner he would not have lost his vision completely in his left eye. This February 2004 treatment record was referenced in later treatment records, but is not available in the claims file. Available records show that in 1998 the Veteran had recovered a fair amount of vision in his left eye following a 1988 stab wound and surgery. There are no treatment records which contain details of his vision acuity from 1998 to October 2003. In October 2003, a record indicates that in February 2003 the Veteran's left eyesight had diminished to being able to count fingers from two feet. He was also noted to have been able to see hand motion at three feet in August 2003. As indicated in later records, by February 2004 the Veteran was legally blind, and by as early as April 2004 he no longer had light perception in his left eye. The evidence indicates that there was additional disability as a result of his detached retina. According to the evaluators and the article submitted by the January 2005 physician, the natural progression of untreated left retinal detachment off macula is blindness. Thus, this case turns on whether the 3 to 4 weeks the Veteran did not seek treatment for his retinal detachment would have eventually resulted in total blindness regardless of surgical intervention, or whether VA's failure to provide retinal surgery for 13 months after the Veteran sought treatment proximately caused the progression of his loss of sight and whether that failure to provide surgery was a failure to exercise the degree of care that would be expected of a reasonable health care provider. Without the records, the Board and the evaluators of record are guessing at the severity of the Veteran's visual acuity and retinal detachment. The November 2012 IME noted that it was "possible" that the Veteran's "retina was already damaged enough by the time he presented for treatment that the chance of successful repair was low." This opinion supposes that his retina was "already damaged enough" and indicates that a repair rate would have been low, but not inoperable. Conversely, the November 2012 IME noted that if the ophthalmologist scheduled surgery in March 2003, then "an attempt at surgical repair was not entirely futile, but the likelihood of success may have been low." Statements which note only that it was "possible" are merely speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions expressed in terms of "may" also implies "may" or "may not" and are too speculative to establish a plausible claim by themselves); see also Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (Medical opinions employing the phrase "may" or "may not" are speculative.). Thus, the November 2012 IME opinion is speculative regarding the status of the Veteran's sight in his left eye and severity of his detached retina when he initially sought treatment and is speculative regarding the outcome of surgery if it had been performed in a timely manner. The IME also indicated that if surgery had been performed in February 2003 (a month after he initially sought treatment), "it is likely that [the Veteran] would not have recovered substantial visual function." This sentence indicates that if he had surgery in February 2003 he would have recovered some visual function or perhaps just stopped the progression by that time. Regarding whether the VA's failure to provide timely retina surgery was a failure to exercise the degree of care that would be expected of a reasonable health care provider, the opinions of the evaluators is that VA was not negligent. The Board notes, however, that the November 2012 IME opinion considered that "prompt surgical repair at the time [the Veteran] first presented may have stabilized the eye." The June 2005 physician indicated that retinal detachment is a "medical emergency" and that treatment should be sought immediately. The indication is also that treatment should be provided immediately as blindness is a known result of the natural progression of untreated retinal detachment. As the VA treatment providers believed that surgery was necessary in January 2003 and reportedly in February 2003, the Board is inclined to find that a reasonable health care provider would have performed an indicated surgery prior to 13 months after initial referral. In summary, VA treatment records are fundamental in determining the outcome of 38 U.S.C.A. § 1151 compensation claims, and in this case the important records are not available even though other records are available from 2003 and 2004. Based on the evidence of record and the Veteran's credible statements, the Board finds that it is at least in relative equipoise that he suffered additional loss of sight as a result of not undergoing retinal surgery after it was diagnosed in January 2003. The Board also finds VA's failure to provide retinal surgery in a timely manner was the proximate cause of the Veteran's left eye blindness, because treatment providers initially scheduled him for a surgery and thus had determined that surgery would either provide some improvement in his vision or would have stabilized his vision loss. Lastly, as a detached retina is considered a "medical emergency" and prompt surgery could have resulted in stabilization or improvement of vision, the Board finds that VA did not exercise proper care by failing to provide a scheduled surgery for more than a year. Thus, VA's failure to provide timely and proper treatment for the Veteran's left detached retina proximately caused the natural progression of the detached retina to left eye blindness. Reasonable doubt will be resolved in the Veteran's favor and entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a left eye injury is granted. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left eye injury is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs