Citation Nr: 1318492 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-10 927A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for blindness in the right eye. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from August 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a hearing at the RO in November 2006. A transcript of the hearing has been associated with the claims file. (Although the Veteran had also requested a Board hearing, the Veteran withdrew that request in March 2009.) The Board notes that the instant matter was previously before the Board in January 2010 and September 2011, at which time the Board remanded the issue of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for further evidentiary development. The Board finds that all development required by the Board's previous remands has been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's additional right eye disability is not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing a pars plana vitrectomy at the VAMC Indianapolis in June 2004, or as the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation benefits under 38 U.S.C.A. § 1151 for blindness in the right eye have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 in October 2004. That same month, the RO sent to him a letter notifying him of the evidence required to substantiate his claim for section 1151 benefits. The letter advised the Veteran of the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim, such as treatment records related to his claimed condition(s). In January 2007, the Veteran was informed of the notice elements required by Dingess for how VA determines disability ratings and effective dates. Although the complete notice required by the VCAA was not provided until after the initial adjudication of the Veteran's claim, any timing errors have been cured by the RO's readjudication of the Veteran's claim via several supplemental statements of the case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (a timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the October 2004 and January 2007 notice letters comply with the requirements of 38 U.S.C.A. § 5103(a) and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's VA treatment records from the Indianapolis, Indiana, VA medical center have been obtained and associated with the claims file. The record also contains private medical records, VA opinion reports, numerous lay statements, and a transcript of the Veteran's hearing before the RO in November 2006. The Veteran was also twice afforded the opportunity to supply VA with the necessary authorization for release of private medical records from Dr. P., but failed each time to respond. Given that "the duty to assist is not always a one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and it is the Veteran who is ultimately responsible for providing private medical evidence to VA, the Board finds that no further assistance in this regard is warranted and that the terms of its prior remands have been complied with. Notably, the informed consent document has not been obtained. However, all appropriate procedures to locate that document were undertaken and the VA medical center responded that a copy of the document was not located in the Veteran's record. A formal finding of unavailability was issued in November 2012. Further, as the two doctors involved in the Veteran's June 2004 surgery are no longer employed at the VA medical center, it is not possible to obtain from them any information regarding the informed consent given prior to the surgery. In short, the Board finds that all efforts to obtain the information have been exhausted and that further attempts would be futile. Additionally, two medical opinions have been obtained in connection with the claim, the reports of which are of record. The opinion reports contain sufficient evidence by which to decide the issue of whether the Veteran suffers from any additional disability that was caused by VA treatment as a result of negligence or similar instance of fault on VA's part in conjunction with the June 2004 surgery. The Board notes that initially the November 2012 clinician stated that the additional disability was proximately caused by an event not reasonably foreseeable. However, given that his explanation supported an opposite conclusion, clarification was sought and in a December 2012 statement he stated that his answer should have been "no," the additional disability was not caused by an event not reasonably foreseeable. Given the stated reasoning and the clarifying opinion, the Board finds no reason to obtain another opinion, despite the Veteran's argument to the contrary. The Board finds that the opinions obtained in this case are adequate as they were predicated on a reading of the medical records in the Veteran's claims file and on current medical literature. The Board notes that while the opinions of record are lacking somewhat in supporting rationale, as will be discussed in greater detail below, the Board does not find that the lack of a more detailed rationale renders the opinions inadequate. The Board thus concludes the record contains an adequate medical opinion and that the November 2012 opinion contains enough support such that it complies with the terms of the prior remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, supra. Further, given that lack of evidence to contradict the VA clinicians' opinions or suggest that the Veteran's additional disability is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the June 2004 pars plana vitrectomy or as the result of an event that was not reasonably foreseeable, the Board concludes that to remand the matter again to obtain a more detailed rationale would be superfluous as it would not result in a benefit flowing to the Veteran. II. Analysis In June 2004, the Veteran filed a claim for VA compensation benefits pursuant to 38 U.S.C.A. § 1151, asserting that he had sustained an additional disability as a result of an eye surgery performed at the Indianapolis, Indiana, VA medical center. Specifically, the Veteran stated that on June 17, 2004, he underwent surgery on his right eye to remove scar tissue and stop bleeding behind the retina. He indicated that he had been informed that it would be a simple operation. The Veteran asserted that during the surgery, the operating physician mistakenly cut an artery, which resulted in substantial bleeding and left the Veteran without eyesight in his right eye. (During his November 2006 hearing, the Veteran acknowledged that prior to the June 2004 surgery, he was considered to be legally blind. He stated, however, the he could read large print documents and that after the surgery, his vision was further diminished.) He asserts, therefore, that he is entitled to compensation for blindness of the right eye. Compensation shall be awarded for a "qualifying additional disability" in the same manner as if such additional disability was service connected if the disability was: (a) . . . not the result of the veteran's willful misconduct and-- (1) . . . was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary . . . and the proximate cause of the disability . . . was-- (A) 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 (B) an event not reasonably foreseeable. . . 38 U.S.C.A. § 1151 (West 2002 & Supp 2012); see Pub. L. No. 104-204, § 422(b)(1), (c), 110 Stat. 2926-27 (1996) (amending section 1151 to incorporate fault requirement and providing that those amendments were made applicable only to claims filed on or after October 1, 1997). Thus, to obtain benefits under 38 U.S.C. § 1151(a), a claimant must show: (1) a "qualifying additional disability," (2) directly caused by the treatment furnished by VA, and (3) a proximate cause that is either a fault on the part of VA or an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361(d)(1) (2012). A review of the medical evidence of record shows that on June 17, 2004, the Veteran underwent a right pars plana vitrectomy with membrane peel. His pre-operative diagnosis was recorded as proliferative diabetic retinopathy with traction retinal detachment and vitreous hemorrhage. The operative report states that "[p]rior to the procedure all risks, benefits, and alternatives were explained fully to the patient and informed consent was obtained and placed on the chart." It further notes that a retinal tear of approximately one disk diameter was seen near the nerve along the supratemporal arcade. A flute needle was used to perform fluid-fluid exchange over the nerve and the area of the break; however, the bleeding overwhelmed the fluid-fluid exchange and a significant amount of blood collected over the posterior pole and in the subretinal space through the open break. Attempts were made to remove the clotted blood from the subretinal space, but a moderate amount of subretinal hemorrhage remained. Final inspection of the retina revealed removal of the core vitreous with a small residual skirt of vitreous base. An operative note indicated that the ultimate plan would be to perform a laser retinopexy of the retinal break should it be necessary once the hemorrhage allowed for sufficient view. In January 2009, the agency of original jurisdiction (AOJ) obtained a medical opinion in connection with the Veteran's claim. The clinician was requested to state whether the June 17, 2004, surgery caused an additional loss of vision in the Veteran's right eye or whether the change in vision following the surgery was due to the natural progress of the Veteran's diabetic retinopathy. If the clinician found that the additional loss of vision was due to the June 17, 2004, right eye surgery, it was then requested that the clinician indicate (1) whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, and (2) whether the resulting change in vision was due to an event not reasonably foreseeable. The VA clinician noted that he had reviewed the VA treatment records, to specifically include the June 17, 2004, operative note and the associated pre- and post-operative notes. He then opined that the Veteran's change in vision after the June 2004 surgery was most likely caused by or a result of the pars plana vitrectomy with membrane peel of the right eye. The clinician indicated that prior to the surgery the Veteran had a right eye visual acuity of counting fingers at 2 to 3 feet. The clinician stated that during the surgery, bleeding occurred while attempting to remove the fibrovascular membrane over the retina. The clinician found that after the surgery, the Veteran's right eye vision was classified as no light perception. The clinician determined that the correct surgery was performed, stating that the surgery was very complicated and difficult. He found there to be no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the Veteran's care. He then stated that the bleeding that occurred during the surgery was due to the severe proliferative diabetic retinopathy in the eye and that bleeding was a known risk in those types of surgical cases. In November 2012, in accordance with the Board's September 2011 remand, the AOJ obtained another medical opinion in connection with the Veteran's claim. The VA clinician reviewed the claims folder, the electronic medical record, the previous VA opinion report, and the literature of record. Regarding whether the Veteran had sustained an additional disability as a result of his pars plana vitrectomy, the clinician agreed that the Veteran's loss of vision was a result of the June 2004 surgery. The clinician determined that the correct surgery was performed and stated that a pars plana vitrectomy with membrane peel is an appropriate procedure for a patient with end stage proliferative retinopathy. He noted that the surgery was very complicated and difficult, but found there to be no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the Veteran's care. The clinician reiterated the prior clinician's assertion that the bleeding that occurred during the surgery was due to the severe proliferative diabetic retinopathy in the eye and that bleeding was a known risk in those types of surgical cases. The clinician went on to state that both retinal detachment and hemorrhage are complications of the surgery performed on the Veteran that are dreaded, but expected, and would be exactly the type of risks that a reasonable healthcare provider would have disclosed with informed consent for the procedure. In support of his opinion, the clinician attached several treatise abstracts indicating that retinal breaks and detachment continue to be a severe complication of pars plana vitrectomy, despite improvement in instrumentation and surgical techniques, and that pars plana vitrectomy may be complicated by either limited or massive choroidal hemorrhage. Upon review of the evidence, the Board finds that the Veteran has sustained an additional disability as a result of his June 2004 pars plana vitrectomy procedure. While it is somewhat unclear whether the Veteran's post-surgical additional vision loss was a result of the June 2004 surgery itself, bleeding due to the June 2004 surgical procedure, or bleeding due to the underlying disability, the fact remains that both VA clinicians who reviewed the evidence of record concluded that the Veteran's post-surgical vision change was likely caused by or a result of his pars plana vitrectomy. Having found that the first two elements necessary to obtain benefits under 38 U.S.C.A. § 1151 have been satisfied, the Board turns to the question of whether the proximate cause of the Veteran's additional disability was either a fault on the part of VA or an event not reasonably foreseeable. To establish that the proximate cause of a qualifying additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (2) that VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). In the instant case, the Veteran has presented no evidence other than his own assertion that VA's medical care was careless, negligent, or the result of improper skill or an error in judgment. Although the Veteran alleges that the doctor who performed the surgery erroneously cut an artery, which caused substantial bleeding and his resulting blindness, the two VA clinicians who reviewed the records related to the June 2004 surgery could find no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The Veteran has also not indicated that any other person with the appropriate expertise to render an opinion on the matter has informed him of such. While the Veteran stated during his November 2006 RO hearing that a Dr. P. suggested that had the Veteran seen him earlier there "could have been something that he could have probably done for the eye," the hearing officer specifically asked the Veteran whether Dr. P. had indicated to him that VA had made a mistake during the surgery. The Veteran's response was only that Dr. P. said that he had waited too long to see him and nothing could be done for his eye at that point. Further, the Veteran has submitted no records from Dr. P., despite having been given ample opportunity to do so, and none of the other private medical records contains information that in any way suggests error during the June 2004 surgery. The Board acknowledges that the VA clinicians' opinions that the Veteran's additional disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the June 2004 surgery are lacking somewhat in rationale. However, there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Rather, an examiner is required only to consider all of the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the instant case, there is no indication that either clinician failed to consider any piece of relevant evidence before providing their opinions. The Board also finds no reason to discount the medical opinions based on the physicians' expertise and qualifications as medical professionals. Further, given the absence of contrary medical evidence in this case, the Board need not weigh the clinicians' opinions against other evidence. Indeed, there is no evidence, other than the Veteran's own assertions, to suggest that that VA's medical care was careless, negligent, or the result of improper skill or an error in judgment. Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such conclusion, especially in light of the VA clinicians' conclusions to the contrary. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Based on the record before it, the Board finds there to be no competent evidence demonstrating that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider in performing the Veteran's June 2004 surgery. In this regard, the Board finds probative the opinions of the two VA clinicians who reviewed the record, to include all records related to the surgery, and concluded that there was simply no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA Fault on the part of VA can also be established by showing that VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Although the Veteran's informed consent form is unavailable, the Veteran has not argued that informed consent was not given. The June 2004 operative report also states that "[p]rior to the procedure all risks, benefits, and alternatives were explained fully to the patient and informed consent was obtained." Further, while the Veteran states that he was told that the operation would be a relatively simple procedure, he has not asserted that blindness and/or bleeding was not explained to be a potential adverse effect of the procedure. Similarly, the Veteran has not asserted that had he known that blindness would result, he would not have undergone the procedure. In short, the Board finds no reason to conclude that the procedure was undertaken without the Veteran's informed consent, such that the lack of documentation of informed consent is not a fatal error in this case. Accordingly, the Board finds that the evidence weighs against a finding that the proximate cause of the Veteran's additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, as the Veteran has failed to show either (1) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (2) that VA furnished the care, treatment, or examination without informed consent. 38 C.F.R. § 3.361(d)(1). Turning to the question of whether the proximate cause of the Veteran's disability was an event not reasonably foreseeable, the Board also finds that the evidence of record fails to support such a finding. Whether an event is "reasonably foreseeable" is based on what a reasonable health care provider would have foreseen." 38 C.F.R. § 3.361(d)(2). "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." Id. Here, the November 2012 VA clinician, in his clarifying opinion, opined that the proximate cause of the additional disability was not an event not reasonably foreseeable. As the clinician had previously explained, retinal detachment and hemorrhage are expected complications of a pars plana vitrectomy. The clinician's conclusion in this regard is supported by the medical literature provided with his opinion. The clinician further indicated that those complications were exactly the types of risks that a reasonable health care provider would have disclosed in connection with the informed consent process. The Board finds no reason to reject the clinician's opinion in this regard as there is no evidence to suggest that the resulting hemorrhage was not reasonably foreseeable in the context of the surgery performed. As the weight of the evidence indicates that the Veteran's additional disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar fault associated with the June 2004 surgery and that it was not caused by an event not reasonably foreseeable, compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting § 1151 benefits under any theory advanced by the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for blindness in the right eye is denied ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs