Citation Nr: 1309636 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-21 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of cataract phacoemulsification with intraocular lens implant of the left eye. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from November 1944 to March 1946 and from November 1947 to February 1950. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board advanced this claim on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claim required further development before being decided on appeal, in June 2012 the Board remanded this claim to the RO via the Appeals Management Center (AMC). FINDING OF FACT The Veteran has additional disability, especially unresolved ocular phototoxicity and a macular hole formation, because of left eye surgery VA performed on April 7, 1995, and although VA exercised the proper standard of care before, during, and after that surgery, and he provided his informed consent, the proximate cause of this additional disability was not reasonably foreseeable. CONCLUSION OF LAW The criteria resultantly are met for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for this additional disability since a residual of the cataract phacoemulsification with intraocular lens implant of this eye. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.361, 17.32 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, at least as concerning most applications, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U. S. Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, unless there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Board is granting the claim so need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations because the Veteran is receiving the requested benefit, regardless. II. Analysis The Veteran is claiming entitlement toVA compensation under 38 U.S.C.A. § 1151 for poor vision in his left eye that allegedly resulted from surgery VA performed on this eye on April 7, 2005. When a Veteran suffers an injury or an aggravation of an injury resulting in a additional disability or death due to training, hospital care, medical or surgical treatment, or an examination furnished by a VA employee or in a VA facility, as defined in 38 U.S.C.A. § 1701(3)(A), disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C.A. § 1151(a) (West 2002). Section 1151 of Title 38 of the United States Code was modified by section 422(a) of Public Law 104-204, 110 Stat. 2926 (1996) to require not only that the VA treatment in question result in additional disability, but also that the proximate cause of the additional disability be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or an event not reasonably foreseeable. These amendments apply to claims for compensation under 38 U.S.C. § 1151 filed on or after October 1, 1997, as was the claim in this case. VAOPGCPREC 40-97; 63 Fed. Reg. 31,263 (1998). In determining whether a Veteran has an additional disability, VA is to compare a Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2012). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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) (2012). 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 that either VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or it furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determining whether there was informed consent involves considering 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) (2012). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable 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 the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2012). 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. 38 C.F.R. § 17.32(c) (2012). Signature consent is required for all diagnostic and therapeutic treatments or procedures that require the use of sedation and anesthesia or narcotic analgesia, are considered to produce significant discomfort to the patient, have a significant risk of complication or morbidity, require injections of any substance into a joint space or body cavity, or involve testing for Human Immunodeficiency Virus. The informed consent process, including signed consent form, must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d) (2012). According to written statements the Veteran submitted in November 2007, May 2009, October 2009, May 2012 and February 2013, students sat in on his April 7, 2005 surgery for the purpose of learning and, during the surgery, he heard the teacher talking to the students regarding using too strong of a laser. Allegedly, following the surgery, the surgeon told him that he used a microscope that was too hot and that, as a result, the Veteran developed a hole in his left eye. The Veteran questions the RO's finding that the hole existed prior to the surgery, pointing out that, if that were the case, he would not have suddenly become totally blind in his left eye after the surgery. The Veteran contends that, according to VA treatment records, following the surgery a physician found that the Veteran had age-related macular degeneration, which the cataract surgery exacerbated, and a long-standing hole in his left eye. The Veteran questions the RO's finding that there is no evidence the hole was caused by VA's surgery. He believes it is due to the use of excessively hot surgical instruments. He argues that the consent form he signed does not list exacerbation of age-related macular degeneration and consequent decreased vision as known risks associated with the surgery and that, if he had been informed of this risk prior to surgery, including during an eye evaluation, he might not have consented to it. Allegedly, VA did not examine his left eye for an assessment of risks to his vision prior to the surgery. VA treatment records establish that, as alleged, the Veteran underwent left eye surgery on April 7, 2005. The only medical records in the claims file dated prior to the surgery are a March 2005 VA ophthalmology clinic note and an April 2005 pre-procedure note and signed informed consent form. The VA ophthalmology clinic note reflects that, in March 2005, approximately two weeks prior to surgery, an ophthalmologist evaluated the Veteran for the purpose of determining whether he had a cataract. The ophthalmologist performed a full eye evaluation, including of the Veteran's macula, and did not note any macular hole or macular degeneration. The ophthalmologist noted one abnormality: a visually significant cataract in the left eye. According to the Veteran, he had been having difficulty reading secondary to glare, a problem the ophthalmologist attributed to the cataract (a clouding of the lens of the eye). The April 2005 pre-procedure note indicates there was no change in the Veteran's physical evaluation since the prior visit. It further indicates the Veteran had blurry vision secondary to a cataract and describes the surgical procedure needed to correct the cataract as phacoemulsification of the cataract with an intraocular lens implant. That day the Veteran signed an informed consent form listing the following as known risks of the phacoemulsification: retinal detachment and dislocation of lens; development of glaucoma (increased pressure in eye); bleeding and/or infection inside or outside of eye; red or painful eye; ptosis (droopy eyelid); irregular pupil; secondary cataract; loss of depth perception, blurring of vision, double vision, or blindness; loss of eye; choroidal effusion (swelling of layer under the retina); refractive changes (change in focus, requiring new spectacle lenses); macular pucker (wrinkling of retina); cystoid macular edema (swelling of the center of retina); loss of night vision, peripheral vision, distortion of vision or blind spots; corneal edema (swelling of the cornea) and need for corneal transplant to correct; and need for additional treatment and/or surgery. This form also lists the following as known risks of the lens implantation and notes that they might develop during surgery, days, weeks, months or even years after the procedure: loss of corneal clarity; infection; uveitis (inflammation of the tissues of the eye); iris atrophy (wasting changes of the iris, which is the colored part of the eye); glaucoma; bleeding in the eye; and an inability to enlarge pupil. Following the signing of this consent form, on April 7, 2005, the Veteran underwent the surgery. The next day an ophthalmologist observed the Veteran had a small floater in the mid vitreous, a small (less than one mm.) piece of cortex. On April 11, 2005, he again noted a small cortical chip in the mid vitreous and diagnosed a post-capsular rupture. On April 18, 2005, the ophthalmologist noted changes in the macula, including mottling and clumping, consistent with age-related macular degeneration exacerbated by stress from the cataract surgery. He diagnosed decreased vision. During follow-up visits from April to June 2005, physicians diagnosed macular phototoxicity and noted little-to-no improvement in the Veteran's left eye vision. Beginning in July 2005 physicians noted a macular scar. Beginning in February 2006 they noted a macular hole. In February 2006, the Veteran sought the care of a private physician at the Vitreoretinal Institute. He reported that he had had poor vision in his left eye for at least a year, so dating back to 2005, which he had noticed after his cataract surgery. The physician, S. M. B.., M.D., noted retinal pigment epithelial (RPE) atrophy in the central and inferior fovea of the left eye with some pigment clumping. He also noted decreased foveal thickness with a central macular hole in the left eye surrounded by edema. He performed an angiogram, which revealed hyperfluorescence corresponding to the RPE atrophy. He diagnosed a long-standing macular hole in the left eye with RPE atrophy, but did not advise surgical correction due to long-standing atrophy in the central macula. Since then, the Veteran has continued to undergo eye evaluations at VA facilities, during which physicians have noted no improvement of his left eye symptoms. Two medical professionals, both VA examiners, have addressed the etiology of these symptoms. In April 2010, a VA physician acknowledged the Veteran's reported history of poor vision in his left eye since the cataract surgery and conducted a physical evaluation, which revealed early macular degeneration and a macular hole with RPE atrophy. He found that, based on his medical experience as an ophthalmologist and medical literature, the Veteran's left eye vision loss is not the result of the April 7, 2005 procedure. In its June 2012 remand of this claim, however, the Board explained that that opinion was inadequate as the examiner did not consider the Veteran's contentions or provide any explanation for the conclusion. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two."); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). The Board thus instructed the RO/AMC to obtain an addendum opinion, more comprehensive in nature and providing this required reasoning or explanation. A different VA examiner provided this opinion in January 2013. Although the opinion still does not include all of the information the Board requested, including in terms of the underlying rationale, the opinion nonetheless includes the examiner's finding that the Veteran has surgical complications or additional disability as a result of the April 7, 2005 surgery, namely, macular phototoxicity, first documented on April 25, 2005, and a macular hole, first documented on February 9, 2006. As importantly, this additional examiner explained that this additional disability was not reasonably foreseeable, despite the Veteran having provided his informed consent to the surgery and although his VA doctors exercised the proper standard of care before, during, and after the procedure. According to VA and private treatment records in the file, this additional disability is causing the vision loss. The question is thus whether carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the treatment in question resulted in the additional disability; or the proximate cause of the additional disability was an event that was not reasonably foreseeable. According to the VA examiner this additional disability is not the result of VA failing to exercise the appropriate degree of care before, during, and after the surgery. But at the same time he acknowledges the proximate cause of this additional disability was not reasonably foreseeable, a finding supporting the Veteran's assertions. The Veteran consented to surgery that included risks of blurring of vision, blindness, a macular pucker and macular edema, but not the development of a macular hole or phototoxicity. At the time, having just undergone a left eye examination, he was unaware that he had age-related macular degeneration, a condition that the surgery exacerbated. The ophthalmologist who evaluated the Veteran two weeks prior to the surgery noted no such condition and, as alleged, awareness of this fact might have altered the Veteran's choice to undergo the surgery. Regardless, according to the VA examiner's opinion, he now suffers additional disability as a result of the April 7, 2005 surgery that was not in fact reasonably foreseeable. The evidence in this case is in favor of a finding that the Veteran has additional disability, including especially unresolved ocular phototoxicity and a macular hole formation, secondary to his left eye surgery VA performed on April 7, 1995, the proximate cause of which was not reasonably foreseeable. The Board thus concludes that the criteria are met for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of cataract phacoemulsification with intraocular lens implant of the left eye. 38 C.F.R. §§ 3.102, 4.3. ORDER The claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of cataract phacoemulsification with intraocular lens implant of the left eye is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs