Citation Nr: 1309750 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 11-00 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for the residuals of a bilateral eyebrow ptosis repair, to include headaches, blurry vision, and painful scars and scalp, claimed as a result of medical treatment by the Department of Veterans Affairs Medical Center (VAMC). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the issue on appeal. In April 2012, the Veteran testified before the Board at a hearing held via videoconference. A copy of the hearing transcript has been associated with the claims file. At the hearing, the Veteran submitted additional evidence, a statement and photographs, along with a waiver of RO jurisdiction. FINDING OF FACT An additional disability as due to a bilateral eyebrow ptosis repair, to include headaches, blurry vision, and painful scars and scalp, was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for the residuals of an eyebrow ptosis repair claimed as due to treatment received at the VAMC have not been met. 38 U.S.C.A. §§ 1151, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was advised in a July 2009 letter, prior to the initial October 2010 unfavorable rating decision. With regard to the duty to assist, the Veteran's VA treatment records have been obtained. Moreover, the VA treatment records pertaining to the period in question, dated in March 2009, have been obtained. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file. Additionally, in August 2010 and in November 2010, the VA obtained a VA examination and opinion. The Board finds that the opinions received are thorough and well-explained such that further opinion or examination is not necessary in this case. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that in March 2009, VA performed a surgery that he did not agree to and because of the surgery, he has suffered from headaches, blurry vision, and painful scars and a painful scalp. Specifically, prior to the surgery, the Veteran had spoken to his primary care physician about the options to fix his sagging eyelids. His physician had recommended that he undergo an eyelid ptosis repair. The day of the surgery, however, an eyebrow ptosis repair was performed instead. On that day, his surgery was four hours delayed and he was never given IV sedation, being told there was no time. He contends he was given no sedation until he complained, during the surgery, that he felt pain. At that point, he was given an injection that only mildly masked the pain. He contends that following the surgery, his physician agreed that the wrong surgery was accomplished and he had to have two follow-up surgeries, including an eyelid ptosis repair. The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361 (2012). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b) (2012). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical treatment caused the Veteran's additional disability; 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, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d) & (d)(1) (2012). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). 38 C.F.R. § 3.361(d)(1)(ii). Whether the proximate cause of a Veteran's additional disability 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 of this chapter. 38 C.F.R. § 3.361(d)(2) (2012). In adjudicating a claim for benefits, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the VA treatment records reflect that in March 2009, the Veteran was evaluated for eyelashes that were getting into his eyes. He would have to trim his eyelashes often. He was diagnosed with dermatochalasis, brow ptosis, and lash ptosis. The plan was for him to undergo a blepharoplasty, i.e. an eyelid lift, and internal browpexy. On March 9, 2009, the Veteran presented for an eye lid lift. Preoperatively, the Veteran was evaluated for a brow ptosis of the upper lids. It was verified with him that that was the correct procedure. The Veteran stated that he understood the risks of the procedure, including the need for additional surgery, ptosis, scar tissue, loss of vision, and wished to proceed. At the bottom of the preoperative note, it stated that the Veteran was to undergo a brow ptosis and that a brow ptosis of the upper lids was indicated. The Veteran signed an informed consent which stated that the Veteran suffered from eyelid ptosis. The goal of the procedure was to surgically correct drooping eyelids. Before the surgery, a local anesthesia was to be applied. A mild sedative might also be given. An explanation of an eyelid ptosis repair procedure, rather than an eyebrow ptosis repair, was stated in the document. The Veteran also agreed that other treatments or procedures might be done instead, and that those alternatives were explained to him. Notes accompanying the procedure reflect that the Veteran was administered a local anesthetic to both of the temporal brows. The Veteran was noted to have tolerated the procedure well and there were no complications. One week following the operation, the Veteran had no complaints. In April 2009, the Veteran was seen by his referring physician who noted that the Veteran had thought that he was to have a blepharoplasty but instead had a temporal brow lift. He was not happy with the results. He also reported that he did not have sedation during the procedure and felt that the surgeon was rushed. The referring physician felt that the Veteran had a valid point. Examination showed healing incisions along the lateral brow. There was still blepharochalasis laterally which resulted in some inturning of the lateral eyelid. There was excess fullness particularly on the left side. Lid closure was good. It was felt that it would be possible to do a touch-up procedure. A May 2009 note from the surgeon who performed the eye brow lift stated that although the Veteran was originally signed up for a bilateral upper eyelid blepharoplasty and internal browpexy, examination pre-operatively on the day of surgery made it clear that the main visual field defect was not from the upper eyelid skin but rather from the brow ptosis. Once the brow ptosis was corrected, the remaining eyelid skin was minimal and not resting on the lashes or obstructing the superior visual field. The surgeon explained that removing the eyelid skin would have only further dropped the brow and would have created an appearance of the eyelid sutured to the brow. Therefore, a bilateral brow ptosis repair was conducted as that was medically indicated. The surgeon stated that a review of the post-operative photographs clearly showed that the brows were in excellent position and the upper eyelid skin was not overhanging the lashes or obstructing the superior field of vision. Thus, the surgery performed was the appropriate one for the condition presented. In June 2009, the Veteran stated to the surgeon that he had had the wrong surgery and requested that the correct surgery be scheduled. The surgeon noted that the correct surgery was accomplished for the medical presentation and that his brows had been in excellent position. Since the surgery, there was some brow drop which was causing decreased peripheral vision. The assessment was recurrent temporal brow ptosis. The options were to have a blepharoplasty and browpexy or a forehead lift. In September 2009, the Veteran reported that his lashes were still rubbing his eyes. He was noticing a spot in the left field of vision and had an intense itching of the eyes and forehead. The brows were still ptotic. The lateral aspect of the upper lids was redundant and he had some induced etropian as a result. Vision examination showed evidence of a vitreous floater in the left eye. The itching was thought to be related to surgery or to an allergy. It was recommended that there be some lateral excision of the lid tissue and possibly an internal brow plexy to stabilize the brow. In August 2010, a VA examiner reviewed the Veteran's electronic medical records. The examiner concluded that there was no indication of fault, carelessness, or negligence in the surgery performed in March 2009. The examiner explained that the consent signed by the Veteran described the procedure and also provided for variations to the procedure ordered. The eyebrow lift was considered to be a variation of the eye lid tuck. Moreover, the preoperative report indicated that the Veteran understood that an eyebrow ptosis repair was the procedure that would be performed. With regard to sedation, the consent signed indicated that he might possibly receive a sedative but did not indicate that such would be an absolute. The examiner also concluded that there was no additional disability that was due to an event not reasonably foreseeable. The examiner explained that blurry vision in the left eye was the result of a vitreous floater evidenced on September 2009 eye examination and that such was not caused by or the result of the March 2009 surgery. The re-occurrence of the ptosis could be contributing to loss of peripheral vision, but such was a potential side effect of the March 2009 surgery. The examiner did not feel that the reported headaches were related to the surgery, as a bilateral ptosis repair was not expected to cause or contribute to headaches. Headaches in and of themselves were multifactorial in causation. With regard to the sensitive scars and sensitive scalp surrounding the surgical area, such were possible and known complications of the March 2009 surgery. In November 2010, the VA examiner reviewed the Veteran's records surrounding the surgery once more. The examiner found no indication of fault, carelessness, negligence, error in judgment, or lack of skill on the part of the VA. The examiner explained that the consent signed on March 9, 2009, indicated the procedure described in detail along with possible variability. A brow ptosis repair was considered to be an alternative treatment for brow ptosis. First, the Board finds that although the Veteran underwent an eyebrow ptosis lift, rather than an eyelid tuck on March 9, 2009, there was informed consent for the alternative procedure because that procedure was explained to the Veteran, he agreed to proceed with the eyebrow ptosis lift, and the eyebrow ptosis lift was a surgery that was considered to be a reasonable alternative to the original eye lid tuck as stated in the signed informed consent. When there is a dispute concerning what information a doctor provided to his patient, a factual issue is raised whether a generic consent form indicating the patient was advised of the risks of surgery is more probative than the claimant's statements that a specific risk of the surgery was not discussed. McNair v. Shinseki, 25 Vet. App. 98 (2011). The Veteran is competent to attest to factual matters of which he has first-hand knowledge. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In that regard, the treatment records demonstrate that although the Veteran was originally scheduled for an eyelid surgery, the operating surgeon determined that surgery of the brow was medically indicated. That finding was documented as the result of a discussion with the Veteran, who indicated that he understood the benefits, alternatives, and risks of the surgery and wished to proceed. He had no unanswered questions. The treatment records clearly state: "Proceed with procedure as planned," following notation of the agreed upon procedure, right and left brow ptosis repair. The signed informed consent itself, as the August 2010 VA examiner pointed out, allowed for a possible variation from the scheduled procedure, and the one the Veteran obtained was considered to be that type of alternative treatment. That the Veteran was unhappy with the result of the surgery or that his referring physician was surprised that the brow, rather than the lid, surgery was performed, does not detract from the informed consent in this case. Moreover, informed consent may be oral or written, and in this case, is included in two different documents; the document entitled Informed Consent that the Veteran signed for a eyelid ptosis repair, which reasonably encompasses a brow ptosis repair, and the preoperative report, which demonstrates that the brow ptosis repair was the agreed upon course. Next, the Board finds that there was no negligence with regard to the type and kind of anesthesia performed on the Veteran. The informed consent that the Veteran signed stated that he would be receiving a local anesthesia that would cause loss of feeling in a small area, and that he might also receive a mild sedative. The operative report states that an anesthesia injection was administered to the brow area. The report does not reference that the Veteran was feeling pain or needed a second injection or mild sedative. Rather, the report stated that the Veteran tolerated the procedure well. Thus, because the anesthesia administered was the kind specified in the informed consent, the Board finds no indication of negligence in that respect. Lastly, the Board finds that the Veteran's reported additional disabilities were those that were reasonably foreseen. The Veteran's reported blurry vision in the left eye has been attributed to a vitreous floater that was shown on eye examination following the surgery in 2009, and the August 2010 VA examiner determined that a vitreous floater was not a condition that would be related to, caused or aggravated by, an eyebrow ptosis lift. There is no medical evidence to contradict this opinion. Moreover, that the Veteran had a continued lid drop which could have contributed to loss of vision is also not indicative of an unforeseen additional disability as such was stated in the informed consent (loss of vision or recurrent ptosis) and was a reasonable outcome of the surgery. The weight of the evidence is also against a finding that the Veteran's headaches are due to the March 2009 eyebrow lift as an event that was unforeseeable. Rather, the VA examiner in this case concluded that headaches were not a side effect associated with the procedure and were multifactorial in nature. Thus, the examiner did not believe the headaches were related to the surgery. That finding comports with the record, as VA treatment records dated prior to the surgery also show that the Veteran suffered from headaches. A February 2008 VA treatment record demonstrates that the Veteran suffered from chronic neck pain that radiated to the occipital area associated with a headache. However, at his hearing before the Board, the Veteran stated that he had never had headaches prior to the March 2009 surgery. Thus, the credibility of the Veteran's lay statements is called into question. Accordingly, because the Veteran's statements lack credibility because they contradict the medical evidence showing previous headaches related to a cervical spine disability, they are outweighed by the VA examiner's finding that headaches were multifactorial and not an outcome of the surgery. Significantly, the Veteran did not report suffering from headaches following the surgery. Therefore, the Board finds that the probative evidence demonstrates that the Veteran's reported headaches are not related to his brow ptosis lift and cannot be considered to be an additional disability for the purposes of an 1151 claim. Finally, the Board finds that, while the Veteran incurred an additional disability of painful scars and scalp as a result of the eye brow ptosis repair, such residuals are reasonably foreseen as resulting from the brow surgery performed, as explained by the VA examiner. As was stated in the informed consent, scar tissue was a known risk of the procedure. Moreover, a reasonable person would assume that following incision to the skin, there would be scars and related pain. There is no indication in the medical records that the Veteran's scars and incisions related to the surgery resulted in any sort of abnormal healing pattern. Rather, he has been stated to have tolerated the procedure and on follow-up, no abnormality related to the incisions was noted. Therefore, as such residuals are reasonably foreseen results of surgery, the Board finds that that additional disability was not due to negligence or fault on the part of the VA. The Board also acknowledges the Veteran's assertion that he did not agree to the eyebrow ptosis lift and did not have headaches, loss of vision or blurry vision, or painful scars and scalp prior to the March 2009 surgery. The Board also acknowledges that the Veteran is competent to describe symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). He is not competent, however, to offer a medical diagnosis or etiological opinion in this case. In that regard, for the reasons explained above, the Board finds that his statements are outweighed by the VA examiner's opinion finding that the Veteran's reported residuals from the eyebrow ptosis repair were either unrelated to the repair or were reasonably foreseen. The Veteran does not have the medical competence to provide an opinion as to the etiology of those reported symptoms and the VA examiner provided an adequate rationale and clear conclusion in finding against the claim. Accordingly, the Board finds that such reported residuals are not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. Therefore, the claim for compensation under 38 U.S.C.A. § 1151 for the residuals of a bilateral eyebrow ptosis repair, to include headaches, blurry vision, and painful scars and scalp, claimed as a result of medical treatment by the Department of Veterans Affairs Medical Center (VAMC), must be denied. ORDER A claim under 38 U.S.C.A. § 1151 for the residuals of a bilateral eyebrow ptosis repair, to include headaches, blurry vision, and painful scars and scalp, as a result of medical treatment by the Department of Veterans Affairs Medical Center (VAMC) is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs