Citation Nr: 1310084 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-22 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for loss of vision in the right eye. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active air service from November 1951 to November 1954 and from January 1955 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently returned to the VA RO in Montgomery, Alabama. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board in August 2012, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran sustained additional loss of vision in his right eye as a result of right eye surgical procedures performed at the VA Medical Center in November 2003. 2. The additional loss of vision in the Veteran's right eye resulted from an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for loss of vision in the right eye have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability rating and effective date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. An additional disability or death is a qualifying additional disability or death if the disability or death was not the result of the veteran's willful misconduct and if the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility, and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he sustained additional loss of vision in his right eye as a result of his November 2003 cataract removal, vitrectomy, and membrane peel performed at the VA Medical Center. A review of the post-operative treatment notes of record show that the Veteran sustained decreased visual acuity in his right eye immediately following a November 2003 surgical procedures and that he has not recovered the loss of vision since that time. In a December 2004 VA Medical Center treatment note, it was reported that the Veteran had persistent decreased visual acuity in his right eye with metamorphopsia and scotoma following epimacular proliferation (EMP) removal for macular pucker. The examiner noted that it was thought that may be related to phototoxic effect, given that there was no clinical pathology noted and that the etiology of the problem remained unclear. In a later December 2004 VA Medical Center treatment note, it was reported that the Veteran had persistent decreased visual acuity with central scatoma. The examiner noted that there did not appear to be any immediate structural explanation for the decreased vision and noted that it was likely due to preexisting scar/retinal damage prior to his November 2003 cataract removal. The Board notes that there is no evidence of record indicating that the Veteran had scarring or retinal damage in his right eye prior to his November 2003 surgical procedures. The Veteran has continued to receive treatment for his right eye loss of vision from private providers. In a September 2007 letter, the Veteran's private treatment provider, Dr. B.R., noted that the Veteran had very little vision in his right eye since his cataract sugery at the VA Medical Center. Dr. B.R. further noted that the Veteran's vision was currently stable and that even with treatment, the Veteran would not recover the vision he had lost. In an April 2010 letter, Dr. B.R. reported that the Veteran's condition remained stable. In October 2012, the Veteran's claims file was sent to the VA Medical Center for review and an opinion. The examiner opined that it was more likely than not that the Veteran's right eye vision loss was due to his November 2003 VA Medical Center surgical procedures. While the examiner found that the vision loss was not the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in furnishing treatment; the examiner found that the right eye vision loss resulted from an event that was not reasonably predictable. In sum, the Veteran sustained decreased visual acuity in his right eye as a result of November 2003 surgical procedures performed at the VA Medical Center and the decreased visual acuity has been found to be the result of an event not reasonably forseeable. The Board finds that opinion to be competent and persuasive. Accordingly, the Board finds that evidence supports the claim and entitlement to compensation under 38 U.S.C.A. § 1151 for loss of vision in the right eye is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under 38 U.S.C. § 1151 for loss of vision in the right eye is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs