Citation Nr: 1315523 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-14 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for an eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2011, the Board remanded this matter for additional development. That development has been completed and the matter has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran has additional disability consisting of dry left eye caused by February 2006 to May 2006 surgical treatment. 2. Dry left eye was a reasonably foreseeable risk of the VA surgical treatment conducted between February 2006 and May 2006. 3. Dry left eye was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care. 4. VA's deviation from the regulatory requirements for informed consent was a minor immaterial deviation under the circumstances of this case. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for an eye disability have not been met. 38 U.S.C.A. §§ 1151, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2006. Although that letter did not provide notice as to the assignment of an effective date and disability rating, VA will not assign a disability rating or an effective date because the Board is denying the appeal as to entitlement to any compensation benefits under 38 U.S.C.A. § 1151 for an eye disability. The lack of notice as to those elements is therefore harmless error. See generally Shinseki v. Sanders 129 S. Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Additionally, the Board must ensure substantial compliance with its December 2011 Remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a claimant has a right to compliance with a Board remand); see also Dyment v. West, 13 Vet. App. 141, 147, (1999) (holding that Stegall requires substantial compliance, not strict compliance, with a Board remand). In the December 2011 Remand, the Board directed the agency of original jurisdiction (AOJ), which is the RO/AMC in this case, to obtain relevant VA treatment records for the period after May 2007, obtain any additional pertinent records identified by the Veteran, request from the Birmingham, Alabama VA Medical Center (VAMC) the signed consent form for the February 15, 2006 surgery, provide a relevant examination and obtain a relevant expert opinion, and readjudicate the claim. The Board finds that all necessary development has been accomplished, there has been compliance with the Board's December 2011 Remand, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The AOJ has obtained relevant VA and private treatment records, including records of VA treatment after May 2007. In December 2011, the AOJ sent a letter to the Veteran requesting that he identify or submit any additional pertinent evidence. The Veteran has not identified any outstanding evidence. In January 2012, VA afforded the Veteran an examination and obtained an expert medical opinion. The examination and opinion are adequate because the report of that examination includes detailed descriptions of the Veteran's disability, shows that the examiner reviewed his claims file and considered the relevant history of his claimed disability, and includes an analysis sufficient for VA to weigh the opinion against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In December 2011 and January 2012, the AOJ requested from the Birmingham VAMC a copy of the Veteran's signed consent form for his February 15, 2006 surgery. The Birmingham VAMC provided informed consent forms signed by the Veteran on March 15, 2006, March 22, 2006, and May 17, 2006. The AOJ listed this evidence in the August 2012 Supplemental Statement of the Case and the Veteran indicated in a letter received later that month that he was aware that no consent forms dated prior to March 2006 had been obtained by the AOJ. Although there are no consent forms signed prior to March 2006 associated with the claims file, the Board finds that the AOJ complied with the Board's Remand order in this regard as it made the necessary requests and received what consent forms were available. The Board discusses the lack of earlier signed consents in the Merits section of this decision. Finally, in compliance with the Board's Remand order, the AOJ readjudicated the claim in August and September 2012 Supplemental Statements of the Case. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits In general, VA compensation benefits are awarded for disability due to injury or disease incurred during or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (2002). Section 1151 of Chapter 38 of the United States Code provides that compensation for a qualifying additional disability shall be awarded in the same manner as if such disability were service connected. A disability is a qualifying additional disability if: (1) it was not the result of the Veteran's willful misconduct and (2) it either (a) was caused by hospital care, medical or surgical treatment, or examination furnished by VA and was proximately caused by (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or (ii) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. The Veteran contends that VA's 2006 surgical treatment of his eyes caused additional disability of his left eye due to fault on the part of VA. He contends that he used to have 20/20 vision and as a result this treatment he now can barely see out of his left eye, that he cannot open his left eye all the way, and that he must lubricate this eye because it does not do so itself. He also contends that the trauma of these operations caused his bilateral cataracts for which he later received treatment. II.A. Merits - Factual Background All treatment records discussed are VA treatment records unless otherwise specified. A November 2005 optometry consult report documents the Veteran's chief complaint of decreased vision with glasses and that he noticed that his eyelids have begun to droop more and believed they are beginning to affect his vision. His eyelids were found to be ptotic with lashes in the visual axis of both eyes. In an assessment section of that report it was noted that the Veteran had cataracts causing decrease in vision, right eye worse than left. In a plan section of the report it is listed that the Veteran reported that his lids droop down and impede his vision and that ophthalmology would be consulted for possible eyelid surgery. December 2005 ophthalmology clinic notes document his report that his eyelids blocked his vision and he had to lift his brows and eyelids in order to see the road when driving. The assessment was visually significant lash ptosis and the plan was to schedule him for lash ptosis repair and browplexy of both upper lids and brows. The next evidence is the report of the February 15, 2006 outpatient surgical treatment for bilateral lash and brow ptosis. This documents that after discussing risks, benefits, and alternatives, and obtaining informed consent, the Veteran was brought to the operating room and given intravenous sedation and then a local anesthetic. The author of the report described the bilateral brow plexy and bilateral blepharoplasty, described the suturing, stated that the Veteran tolerated the procedure well, and stated that follow-up was anticipated in one week. He also identified another physician, referring to that physician as an ophthalmologist, and stated that he was present for the entire case. The report is signed by a physician who is identified in other notes, for example in March 15, 2006 notes, as an ophthalmology surgery resident. The other physician is identified in the operation report as an ophthalmologist. On February 22, 2006 the Veteran was seen in the ophthalmology clinic. He was described as in some mild discomfort with the swelling continuing to improve. On examination the incision was found to be well approximated and there was no erythema. He underwent suture removal of both eyes. Plan was for follow-up in three months. Records from Marshall Medical Center South document that the Veteran was seen in the emergency room early February 24, 2006 with a chief complaint of bleeding from the left upper eye lid. It was noted that he had recent ptosis surgery at VA and that sutures were removed from the eye the day before. The emergency room description was that the incision of the upper lid of the left eye may have opened a bit, there was a "grape" size hematoma lateral to the incision lateral to the edge of the orbit bone. The wound was oozing blood. He was transferred to the Eye Foundation Hospital emergency room. The Eye Foundation Hospital emergency outpatient record documents that the Veteran was seen on February 24, 2006 for complaints of profuse bleeding of the eye one week after surgical ptosis repair. By the time he arrived the bleeding had stopped. No source was identified. Largest collection was hematoma laterally. A suture was placed, with pressure patch for forty eight hours, and follow up for suture removal at VA in one week. He was seen in the VA ophthalmology clinic on February 28, 2006. He reported that he had not had any problems since the emergency visit at the Eye Foundation Hospital. The following day the suture placed a week earlier was removed without complications. He was seen in the clinic again on March 1, 2006, did not have any infection, and the plan was to return for reevaluation in one week. Clinic notes from March 15, 2006 document the Veteran's report of left eye irritation with an inability to completely close the left eye when sleeping. On examination he was found to have some lag opthalmus with incomplete Bell's phenomenon and cornea was notable for an epithelial defect. Assessment included that he had lag opthalmus and exposure keratopathy. He was started on oculox and aggressive lubrication and patching overnight was recommended to relieve the exposure keratopathy, with the plan to perform a left ptosis revision two days later. March 17, 2006 notes document that the plan was for excision of residual scar tissue on the left upper lid after hematoma formation resulting in lagopthalmos. March 22, 2006 notes document that he had some mild ptosis and the physician noted that he believed it would improve. One week later, the ptosis had improved. On May 1, 2006, the Veteran reported that his daily life was inhibited because he was required to look up, thus hindering him on the left side. He wondered if the left lid would go up any further or if further surgery could correct it. The plan included a return for reevaluation, including for possible surgery. On May 17, 2006 he continued to report that his job required him to use his left eye frequently and he found himself having to often tip his head back to perform his job. The plan was for final surgical touch-up. Left upper lid ptosis repair was performed on May 31, 2006. He was seen on June 7, 2006 and reported that he had not had any problems in the past week. Incision was intact except for small area in the far lateral edge, there was mild puffiness of left upper lid, and the lid position was slightly lower than on the right. The sutures were removed, lid position appeared improved, and he was told to return in one month. He returned July 26, 2006 stating that his only concern was that his eye did not close completely when sleeping. He agreed to give his eye time to improve. He was to be seen for follow up in six months. In his April 2007 notice of disagreement with the November 2006 rating decision, the Veteran stated that a "Resident Surgeon" operated on the right side, a "Trainee" operated on the left side, and the right side surgery had no complications but the left side did have complications. He also stated that he was awake during the operation and heard the "resident surgeon" tell the other surgeon that the other surgeon was doing the procedure wrong. He contended that the surgeon who operated on the left side lacked proper skill, that it was error in judgment on VA's part to allow what he referred to as an intern to operate on the left side, and that he "was never told anybody except a qualified Doctor would be doing surgery." May 18, 2007 notes document the Veteran's report of deteriorating vision despite new glasses. He was found to have cataracts, left eye greater than right eye. Cataract surgery was planned. The ptosis repair was noted as was that he had residual lagophthalmus. He was started on Lacri-Lube for the left eye. He complained that in the morning the left eye was irritated and crusted. September 2007 notes document his report one week post op cataract extraction that his visual acuity had improved in the left eye. The Veteran reported that due to blepharaoplasty in 2006 his left eye required additional lubrication but that he had not noticed worsening of the condition. In a letter received in October 2007, the Veteran contended that he had loss of visual acuity of the left eye, his left eye did not open all the way, and he had to lubricate the left eye four times per day. He again asserted that the surgeon who operated on the left eye was not competent. He also stated that he was told by "Callahan," which is the Eye Foundation Hospital, that "you don't operate on both eyes at the same time." In a VA Form 9 received in June 2008, the Veteran reported that he recently had surgeries for cataracts of both eyes and that he was told by the physician that cataracts are sometimes caused by trauma. He again stated that during the February 2006 surgery he heard the ophthalmologist tell the ophthalmology surgery resident to redo part of the surgery because he had done it incorrectly. The Veteran stated that the sutures were placed through an artery resulting in the later bleeding. A February 2010 opthalmology note includes an assessment that the Veteran had dry eye that had caused intermittent blurry vision and irritation. The assessment also includes that the Veteran was interested in an update on his glasses, that the physician had attempted refraction but could not improve his visual acuity that day and suspected that this was due to his dry eye. There is an optometry consult note from September 2010 that documents the Veteran's report of increased blur in the right eye and that he denied other ocular complaints. Pursuant to the Board's December 2011 Remand, VA provided an examination and obtained a medical opinion. The examiner stated that the Veteran has dry eyes. As to whether the Veteran has an additional disability to include worsening of a preexisting condition as a result of the 2006 VA surgeries, the examiner provided the following opinion: The ptosis prior to surgery improved after surgery and visual acuity is not affected. After surgery for ptosis dry eyes do occur and dry eyes are indeed present in this patient. Cataracts are not caused by blepharochalasis surgery. With regard to reasonable forseeability and whether there was fault on the part of VA, the examiner stated as follows: Dry eyes are a foreseeable result of lid surgery. There was no careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. Informed consent for this surgery is found in the C-file, and was the type that a reasonable health care provider would have disclosed. Both eyes are often operated at the same time. Surgery was performed with proper supervision. The hemorrhage which occurred is not a warranted result but can occur due to no fault of the surgeon. In a letter dated in August 2012, the Veteran stated that he understood that VA has consent forms for March 15, March 22, and May 17, 2006. He stated that the informed consent form for the surgery prior to March 2006 is missing. The rest of his letter is argument concerning the surgery itself, i.e., that it was improper for two different surgeons to operate and that the ophthalmology surgery resident did not exercise proper skill. The Veteran stated that the trauma from the multiple surgeries of the left eye caused his cataracts. II.B. Merits - Analysis To determine whether a Veteran has an additional disability, his condition immediately before the beginning of the VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b) (2012). As these provisions require a showing of actual causation, merely showing that a Veteran received VA care, treatment, or examination and that the Veteran has an additional disability is insufficient. 38 C.F.R. § 3.361(c)(1) (2012). It further is noted that 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) (2012). Here, the most probative evidence of record shows that the Veteran does have additional disability consisting solely of dry left eye and that this additional disability was caused by VA surgical treatment for his ptosis. Although the Veteran has contended that his visual acuity has decreased due to the surgery and that his cataracts were caused by the surgeries, the Board finds the opinion rendered by the examiner in January 2012 more probative and other evidence of record to be more probative evidence showing the contrary. The Veteran's statements consist of two parts. The first part is his own opinion as to the effect of the surgeries on his vision and cataracts and who performed the surgery. The second part is what he reports he was told by medical professionals. There is no evidence of record showing that the Veteran has expertise in medical matters and he has not alleged any such expertise. He is thus considered a non-expert, or layperson, when it comes to medical matters. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stating as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report only that for which they have personal knowledge that comes to the witness through the use of his or her own five senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. To the extent that the Veteran offers his own opinion that the ptosis treatment caused his cataracts, decrease in visual acuity, or any other symptoms other than dry eye, or that he has any additional disability following the surgery other than dry left eye, the Board finds his opinion is not competent evidence. Whether the particular surgery that he underwent caused these other conditions is not within the realm of knowledge of a layperson. It is noted that the December 2005 treatment records document that he had cataracts prior to any of the ptosis treatment, and his opinion is thus contradicted by that finding. Although he may have a subjective impression of decreased visual acuity, whether or not it was caused by his eyelid surgery as opposed to other unrelated factors is not something that is observable and is not a simple question. As such, the Board finds his statements in that regard to not be competent evidence. The Veteran's statements as to what he was told by physicians are competent evidence but are less probative than the December 2005 treatment records that show that he already had cataracts and the physician's statements in the January 2012 examination report. The Veteran referred to trauma in general and opined that the multiple operations constituted such trauma and caused cataracts. His reference to what he was told is in terms of possibility - that trauma may cause cataracts. Further his statement depends on his definition of trauma including multiple surgeries on the eyelids. In contrast, the examiner referred to the specific surgical procedure that was performed, the examiner, a medical professional, is more knowledgeable as to what constitutes trauma and what causes cataracts and a decrease in visual acuity, and the examiner's statements are stated with certainty, not in the possibility terms that the Veteran reports a physician informed him. Thus the Board concludes that the additional disability is dry left eye. The examiner's January 2012 opinion is sufficient evidence for the Board to conclude that VA treatment actually caused the dry left eye. The surgical treatment did not actually cause any other disability. In making this determination, the Board has not ignored the September 2010 ophthalmology note. However, that note only indicated that his dry eye caused intermittent blurry vision and that the attempted refraction was not successful that day with a suspicion that this was due to dry eye. The examiner had that information before him when he rendered the opinion in January 2012, along with all of the evidence of record. His opinion based not only on his expertise but also on the longitudinal review of the evidence leads the Board to the conclusion that the January 2012 opinion is more probative than a suspicion stated in September 2010 and a finding of intermittent blurry vision as to whether the 2006 surgery caused a decrease in visual acuity. Now the Board turns to the proximate cause element of the claim. The proximate cause of a disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (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, it must be shown that VA either: (1) failed to exercise the degree of care that would be expected of a reasonable health care provider or (2) furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, his representative's informed consent. 38 C.F.R. § 3.361(d)(1) (2012). Consideration of whether the procedures of 38 C.F.R. § 17.32 substantially were complied with is required in determining whether there is informed consent. Id. Minor deviations from those requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Id. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Id. Establishing that an event not reasonably foreseeable proximately caused a Veteran's additional disability is determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2) (2012). 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 this regard, consideration will be given to 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. Id. First, the dry left eye was a reasonably foreseeable event. This is shown by the examiner's opinion and by the informed consent documents dated in March and May 2006. For that matter, to the extent that it could be argued that his complications that did not cause disability - the bleeding and need for additional surgery - the consent forms are evidence that these events were also reasonably foreseeable. The Board finds that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider. In this and further discussions, the Board refers to the physician, who the Veteran refers to as a trainee, as the ophthalmology surgery resident and refers to the other physician as the ophthalmologist. The sole reason for this choice is those are the designations found in the VA treatment records (for example in March 15, 2006 and March 17 2006 notes and as consistent with the February 15, 2006 operation report). The fact that the surgery on the left eye was performed by an ophthalmology surgery resident, who may have had less experience than the ophthalmologist who performed the surgery on the right eye, is not evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. There is no evidence that the ophthalmology surgery resident lacked proper skill. The Board finds that the Veteran's statement as to what he allegedly heard the ophthalmologist tell the ophthalmology surgery resident during the procedure does not show fault on the part of VA. Any such statement that may have occurred indicates that the ophthalmology surgery resident had guidance and that there was oversight by the more experienced surgeon. There is no indication that anything that may have been said during the surgery addressed a condition that had any effect on the outcome. Finally, the examiner who provided the January 2012 medical opinion was aware of the operation report which contained the notation that the ophthalmologist was present throughout the operation and that examiner determined that there was no lack of skill or error in judgment. The Veteran's statement that the ophthalmology surgery resident sutured through an artery is not supported by any evidence of record and the Veteran does not explain how he made this determination. If this were the case, the Board would expect to have found some mention of it in the VA, Marshall Medical Center South, or Eye Foundation Hospital records. The Board finds that this is speculation and not fact. The Board affords very little probative weight to the Veteran's report that he was told at the Eye Foundation Hospital that it was improper to operate on both eyes at once. There is no mention of any improper VA treatment in the Eye Foundation Hospital records. Those records document that his incision site had bled, nothing more. There is no indication in those records, or elsewhere in the claims file, that surgery on both eyes would more likely cause a post-suture removal bleed of one eyelid than surgery on one eye would cause a post-suture removal bleed of one eyelid. In contrast, the Board finds no reason to doubt the examiner's statement in the January 2012 examination report that both eyes are often operated on at the same time. The Board reasonably reads that statement as meaning that a reasonable health care provider would operate on both eyes during the same surgical procedure. For these reasons, the examiner's statement is afforded more weight than the Veteran's statements and the Board concludes that the fact that both eyes were operated on during the same procedure does not constitute fault on the part of VA. Now the Board turns to the matter of informed consent. As provided at 38 C.F.R. § 17.32(d)(ii), signature consent is required for all diagnostic and therapeutic treatments or procedures that require sedation, require anesthesia or narcotic analgesia, are considered to produce significant discomfort to the patient, have a significant risk of complication or morbidity, or require injections of any substance into a joint space or body cavity. The evidence of record does not show that any of the other requirements for signature consent were made in this case, but the evidence does show that Veteran was sedated for the February 15, 2006 procedure. There is no signed informed consent form for the first surgery. It is noted that the Veteran's argument as to informed consent is that he was not told that what he characterized as an intern or a trainee would be involved in the surgery General requirements for informed consent are specified by regulation as follows: Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time 38 C.F.R. § 17.32(c). There is also a subsection that specifies when special consent procedures are required. That subsection refers to administration of psychotropic medication to an involuntarily committed patient against his will, a course of treatment or procedure involving approved medical research, and unusual or extremely hazardous treatment or procedure, for example, one that might result in reversible brain damage of sterilization. 38 C.F.R. § 17.32(g). None of those conditions, or any condition similar in kind to those conditions, was present in this case. From these provisions, the Board concludes that VA is not required to provide the patient with the relevant experience level of the physicians providing treatment in order for the patient's consent to be considered informed consent. There is no evidence that the physician who operated on the Veteran's left eye was not properly licensed, trained, qualified, or supervised. The Veteran's contention that he was incompetent is contradicted by the record. The Veterans Court has addressed a situation where there was a signed consent form but the form did not provide specific information as to the risks of the surgical procedure, including the specific complication suffered by the patient. See McNair v. Shinseki, 25 Vet. App. 98 (2011). In that case, the written consent form of record did not include that neuralgia could result from a breast reduction surgery and neuralgia was the complication resulting from the surgery. Id. at 101. In McNair, the Veterans Court held that the failure to advise a patient of a foreseeable risk can be considered minor, immaterial deviation under Section 17.32 if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeeable risk. Id. at 107. Ultimately, the Veterans Court remanded that case and in doing so provided guidance, stating that "the Board did not discuss, and the record does not reflect, the consequence of proceeding with the surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery. Id. at 107-08. The Board is aware that the facts of this case differ from those in McNair in that in McNair there was a signed consent form and here there is no signed consent form prior to the February 2006 surgery. That difference the Board finds does not preclude analysis under McNair. The difference between a signed consent form that does not list the specific risk experienced by the patient, as was the case in McNair, is not materially different from the lack of a signed consent form. In neither case is there a signed consent form that shows that the patient was informed of the specific event that occurred. The analysis of the facts of this case under the guidance provided in McNair is appropriate. The Board finds that the lack of a signed informed consent form dated prior to the February 2006 treatment was a minor immaterial deviation from the requirements of 38 C.F.R. § 17.32. Its reasons for this finding are provided in the following paragraphs. Although there is no signed consent form prior to March 2006, the operation report indicates that informed consent was obtained. From the forms dated in March 2006 and May 2006 it is clear that the risks included that the surgery may result in dry eyes. Taking into consideration that it was stated that informed consent was obtained and the nature of the surgery, it is reasonable to assume that the physicians provided the Veteran with this information prior to the surgery, and that the physicians informed him that additional surgeries may be required. In making the determination, it is noted that the Board here does not rely on a presumption of regularity as to what risks the Veteran was informed of by the physician. See McNair, 25 Vet. App. at 103-04 (holding that the presumption of regularity does not apply to generic informed consent forms where there is a dispute over what information was provided to the patient). Rather, the Board finds that a reasonable physician in an ophthalmology department would have informed the Veteran of the risks that are listed in the consent forms that are of record because such physician would be aware of the risks. More importantly, given that the Veteran was having difficulty seeing due to the ptosis, that such difficulty included difficulty in driving, and that there was no alternative to the surgery for correcting the ptosis, a reasonable person would elect to have the ptosis surgery for improved vision even in the face of the risks of the events that the Veteran experienced. The potential benefits, including safety in driving, reasonably outweigh the potential risks. Here, the Veteran demonstrated the actions of a reasonable person in that he consented to the May 2006 surgery. The May 1, 2006 treatment note documents his statement that he wondered if his left lid would go up higher or if further surgery could be done. Thus, when acutely aware of the risks due to his experience of some of the risks, he elected to proceed with surgery to correct the same difficulty that he had prior to the February 15, 2006 surgery - difficulty seeing out of the left eye because of the ptosis. Given that there was no alternative to correcting the problem, either in February 2006 or in May 2006, a reasonable person aware of the specific risks experienced by the Veteran would have done what the Veteran did, proceed with the surgery. It is recognized that when he signed the informed consent forms in March 2006 and May 2006 his condition was not identical to that of February 15, 2006 in that at that earlier date his problems consisted solely of vision impairment from the ptosis and cataracts and as of the March 2006 procedure he also had dry eye. However, at the time of the March 2006 and May 2006 procedures for which signed consent forms are of record describing the complications he experienced, he was more acutely aware of those risks than a typical patient would be because the dry eye condition had occurred and the incision had bled. That he signed the consent forms in March 2006 and May 2006 is evidence that the risks involved were outweighed by the possible benefits and is evidence that he would have signed the same consent form prior to the first surgery. In summary, the preponderance of evidence shows that the proximate cause element of the Veteran's claim under 38 U.S.C.A. § 1151 is not met in this case. Therefore his appeal as to compensation for additional disability of the eye caused by VA's treatment in 2006 must be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for an eye disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs