Citation Nr: 1312263 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 06-17 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to disability compensation under 38 U.S.C.A. § 1151 for a left eye disability, to include decreased visual acuity, due to treatment at the Department of Veterans Affairs (VA) Medical Center (VAMC), on October 9, 2001. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran had active military service from September 1956 to September 1959 and November 1960 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for left eye blindness. In June 2009, May 2010 and August 2012 the Board remanded the Veteran's claim for additional development. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). FINDING OF FACT The competent evidence of record weighs against a finding that the Veteran has left eye blindness as the result of fault on the part of VA; or not reasonably foreseeable residuals from surgery for a detached retina of the left eye. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for a left eye disability have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An April 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). A May 2010 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). This matter was most recently before the Board in August 2012, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to obtain a new VA examination. All of the actions previously sought by the Board through its prior development request have been completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In accordance with that remand, an examination was conducted in October 2012 and an addendum to that examination was provided in November 2012. The Veteran has not argued, and the record does not reflect, that this examination and opinion were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). Subsequently, a supplemental statement of the case (SSOC) was issued in February 2013, which continued the previous denial. The Veteran was afforded multiple VA examinations prior to October 2011, however, as discussed in prior remands, those examinations were found to be inadequate. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Factual Background and Analysis The Veteran seeks entitlement to disability compensation under 38 U.S.C.A. § 1151 due to surgery at the VAMC for his left eye in October 2001. The Veteran claims that the surgery resulted in scarring and blindness in his left eye. When a veteran incurs additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by 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. To establish entitlement to Section 1151 benefits, these factors must be shown: (1) disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that 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, medical or surgical treatment, or examination caused the veteran's additional disability or death; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d). To determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based, is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination, and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or 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. 38 C.F.R. § 3.361(c)(2). A VA opthalmology attending note dated October 4, 2001, noted the Veteran's complaints of loss of part of his field of vision in the left eye. The Veteran was able to see hand motion only in the upper field of his left eye. The assessment was obvious retinal detachment superiorly. The Veteran was sent for additional evaluation. A VA operative report dated October 9, 2001, noted that the Veteran had a history of amblyopia and best corrected visual acuity of 20/200 in the left eye. It was noted that ocular examination revealed visual acuity of count fingers at three feet. After discussion of the risks, benefits and alternatives to retinal detachment repair, the Veteran elected to proceed with surgery and gave informed consent. The operative report includes a preoperative diagnosis of rhegmatogenous retinal detachment, left eye. A scleral buckle, cryotherapthy, and drainage of subretinal fluid procedure was performed and it was noted that an extensive subretinal hemorrhage complication occurred which necessitated drainage. The reporting surgeon noted that since leaving the hemorrhage would likely lead to a very poor visual outcome, the decision was made to proceed with removal of the subretinal hemorrhage and consent was obtained from the Veteran's wife to proceed. A pars plana vitrectomy (removal of the vitreous gel) and lensectomy (removal of the lens), left eye, with removal of subretinal hematoma (blood clot), air fluid exchange, endolaser, and silicone oil injection procedure was performed. In a March 2002 private treatment note visual acuity of 20 to count fingers at three feet in the left eye was reported, the risks and benefits of removal of silicone oil were discussed. In an April 2002 private treatment note, Dr. H.R. noted that the Veteran was found to have best visual acuity in the left eye of 20/400. Dr. H.R. reported that the risks of recurrent retinal detachment vs. long term toxicity of silicone oil were discussed. A May 2002 private medical operative report reported that silicone oil removal, gas fluid exchange, and endophotocoagulation procedures were performed. A March 2004 seven months retinal evaluation revealed a visual acuity of count fingers from one foot. A September 2004 private ophthalmology treatment record notes that the Veteran's best visual acuity in his left eye was count fingers from one foot and that his left eye was stable status post silicone oil, no evidence of recurrent retinal detachment. In a February 2010 correspondence, Dr. H.R. stated that he saw the Veteran in March 2002 following retinal surgery at a VA hospital where he "experienced some sort of intraoperative mishap" which resulted in substantial intraocular bleeding and extensive post operative sub-retinal fibrosis and scarring in the posterior pole of the eye. Dr. H.R. noted that he and the Veteran discussed the long term toxicities associated with the use of silicone oil versus the "not insignificant possibility of redetachment in the event of silicone oil removal and [possibility that] refraction might actually cause him problems with his vision." Dr. H.R. stated that in his opinion the treatment subsequent to his operation at the VA hospital and issues that stemmed from the operation (removal of the silicone oil and subsequent treatment) were appropriate as they were consequences of the procedure he had at VA. He stated that silicone oil was not routinely used to repair uncomplicated retinal detachments and its subsequent removal form an operated eye with some visual potential was a routine issue. The Veteran was given a VA examination in October 2012 after which diagnoses of detached retna, status post lensectomy and silicone oil, status post silicone oil removal and aphakia (no lens of the eye) were provided. The examiner provided an addendum to the October 2012 examination report following review of the claims file in November 2012. In the addendum, the examiner noted that the Veteran had a pre-existing vision limitation of the left eye prior to retinal detachment and that his best corrected vision was 20/70 in May 1990. It was noted that there was no available documented vision of the left eye immediately before detachment but that the Veteran had a retinal detachment in October 2001 with vision of hand movement only in the upper field. The examiner noted that, following an intraoperative chordial hemorrhage, there was a procedure to manage that complication during which there was a silicone injection. Following that the Veteran underwent a silicone removal by his private physician Dr. H.R. The examiner stated that the Veteran's best visual acuity of the left eye was hand movement at three feet in October 2012, status post retinal detachment, repaired and aphakia of the left eye. The examiner opined that, based on the available records, there was no evidence that the Veteran's current eye condition was caused by carelessness, negligence or lack of proper skill, error in judgment, or similar finding of fault on the part of VA. The examiner stated that the Veteran had a complicated retinal procedure in October 2001 and that it was not contraindicated to use silicone oil as part of the procedure to manage the complication of choridal hemorrhage of the left eye. The examiner explained that intraoperative choroidal hemorrhage is a known complication of retinal detachment. The examiner further stated that the Veteran's vision was documented as count fingers at three feet on October 9, 2001 and was documented as 20/400 on April 9, 2002 before silicone oil was removed. He said that, based on the records, the only conclusion that could be drawn was that visual acuity was improved post retinal detachment repair. The examiner further stated that the Veteran would not have aphakia of his left eye without the intraoperative chorioidal hemorrhage which occurred in October 2001. The Veteran asserts that the Veteran's VA treatment resulted in an additional eye disability. In various statements, and in statements submitted on his behalf by his representative, the Veteran has argued that the amount of time the surgery took, the complications of surgery, and the fact that silicone oil was used during surgery, demonstrates wrongdoing on the part of VA. The Veteran is not competent to opine as to whether VA carelessness caused an additional left eye disability during his October 9, 2011 surgery. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the issue of whether the Veteran's VA surgeon acted appropriately, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). No factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to speak as to whether the VA treatment he received was medically appropriate. For this reason, the Veteran's lay opinion is of no probative value as to the issue of whether the care provided was appropriate. 38 C.F.R. § 3.303(d). The Veteran may hold a genuine belief that negligent VA treatment led to an additional eye disability, however, he does not have the medical expertise to make such a determination. The claims file includes two competent medical opinions which address the Veteran's October 2001 left eye surgery, that of Dr. H.R., and that of the October 2012 VA examiner. In pertinent part, Dr. H.R. stated in February 2010 that the Veteran "experienced some sort of intraoperative mishap" which resulted in substantial intraocular bleeding and extensive post operative sub-retinal fibrosis and scarring in the posterior pole of the eye. Dr. H.R. also opined that silicone oil was not routinely used to repair uncomplicated retinal detachments. The VA examiner concluded that, during surgery, the Veteran had a intraoperative choroidal hemorrhage, which was a known complication of retinal detachment repair and which was not a result of carelessness, negligence, or lack of proper skill, error in judgment or similar finding of fault. The VA examiner additionally stated that the Veteran had a complicated retinal procedure for which the use of silicone oil was not ill advised. The VA examiner finally noted that based on the claims file, the only conclusion that can be drawn is that the Veteran's best visual acuity was improved following his October 9, 2001 VA surgery. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board favors the opinion of the VA examiner. The VA examiner is shown to have reviewed the record as a whole and provided a clear rationale for his findings. There is no evidence that Dr. H.R. reviewed the Veteran's surgical or treatment records as a whole, in fact, Dr. H.R.'s vague recitation of the Veteran's report indicates that he did not familiarize himself with the Veteran's treatment records in their entirety but instead merely took the Veteran's word that an "intraoperative mishap" occurred during the VA surgery. The Veteran did accurately report the complications from the surgery. Significantly, Dr. H.R. did not provide an opinion as to whether the "intraoperative mishap" reported by the Veteran constituted fault on the part of the VA; rather, he discussed the pros and cons of removing the silicon oil that was injected to tamponade the retinal detachment. While noting that silicon oil was not routinely used to repair retinal detachments, again, he did not opine that such constituted any fault on the part of VA. As the Veteran is not competent to provide an opinion as to whether an additional eye disability occurred as a result of fault by the VA; the private doctor did not opine that there was any fault by VA; and the VA examiner opined that the Veteran's October 9, 2001 VA surgical treatment did not constitute fault resulting in additional disability, the preponderance of the evidence is against the Veteran's claim for compensation under 38 U.S.C.A. § 1151. There is no doubt to be resolved; and compensation for a left eye disability is not warranted. ORDER Entitlement to disability compensation under 38 U.S.C.A. § 1151 for a left eye disability, to include decreased visual acuity, due to treatment at the Department of Veterans Affairs (VA) Medical Center (VAMC) on October 9, 2001 is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs