Citation Nr: 1320681 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-23 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for blindness of the left eye, with light perception only. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1975 to November 1981. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This issue was previously remanded by the Board for additional development on two occasions, in February 2011 and March 2013. As will be discussed below, the Board finds the remand instructions were substantially completed and the Board may proceed with appellate review. Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The weight of the evidence does not establish that the Veteran has blindness in the left eye with light perception only that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. CONCLUSION OF LAW Criteria for compensation under 38 U.S.C.A. § 1151 for left eye blindness with light perception only as a result of VA medical treatment have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking benefits for his detached retina and resulting blindness except for light perception in his left eye under 38 U.S.C.A. § 1151. The Veteran alleges that he initially had surgery at a VA facility following an unrelated traumatic injury to his left eye. The Veteran reported he was told he would have additional follow-up appointments following his surgery. He contends he had his first two follow-up appointments, but his third appointment was cancelled by the VA and he was told the appointment could not be rescheduled for an additional six months. In his DRO hearing before the RO, the Veteran specifically testified that he received a letter indicating his October 2003 appointment was cancelled and rescheduled for April 6, 2004, however the Veteran testified he lost this letter in a hurricane. When the Veteran was seen again in April 2004 he was told his left retina had again detached and due to the extensive scarring could not be re-attached. The Veteran asserts that his current loss of vision is due to the negligence of the scheduling clerk at the VA facility, and the Veteran's lack of a timely follow-up appointment. At his hearing the Veteran also testified that the receptionist was subsequently fired due to additional cases in which she failed to timely schedule appointments. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and either: 1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C.A. § 1151. The first element of a claim under 38 U.S.C.A. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. See 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. Id. However, as will be discussed, the Board finds the weight of the evidence of record does not establish the Veteran's current blindness of the left eye with light perception only was caused by VA treatment. The record reflects that in June 2003 the Veteran experienced traumatic injury to his left eye after a firecracker hit his eye, totally not related to service. This condition was complicated by a virterous hemorrhage. The Veteran had an initial recovery of vision when the hemorrhage cleared, but he subsequently lost vision due to retinal detachment. In August 2003 the Veteran had a surgical procedure on his left eye at the VA hospital in Miami. The physician performed a sclera buckle, pars plana vitrectomy, extensive peeling of membranes throughout the posterior pole and extending peripherally inferiorly. The physician noted the Veteran looked great at the time, but cautioned PVR, proliferative vitreoretinopathy, could reoccur. Therefore the physician noted it was most critical to watch the Veteran in his first three months after surgery, especially between four to six weeks as the gas reabsorbed. The Board finds the physician's caution provides probative evidence that additional detachment of the retina was an expected possible outcome from the surgery the Veteran underwent. In August 2003 the Veteran was seen for follow-up of his eye surgery. The physician noted swelling and edema in the Veteran's cornea. Due to this the physician was not able to get a look at the Veteran's left retina. The physician adjusted the Veteran's medication and advised he return in one week. That same month the Veteran was seen for a mental health appointment and reported having a difficult four hour surgery on his left eye in Miami. The Veteran reported he hoped for at least some vision in his left eye after several months and wore eye protection. In September 2003, the Veteran returned for an eye follow-up. The physician noted inflammation was still present, however the cornea was clear. The pressure in the Veteran's left eye also went down, which the physician noted was excellent. The physician noted a great deal of "haze" in the Veteran's eye, a combination of inflammatory cells and blood. However, despite the "haze", it appeared the retina was 360 degrees around the eye. The Veteran's current medications were continued and he was advised to return in one week. The Veteran returned later that month. The physician noted the Veteran's inflammatory debris was clearing rather nicely and the Veteran was making excellent progress. The sclera buckle was in good position and the retina was 360 degrees on the eye. The Veteran's medication was adjusted and he was recommended to return in three weeks. As such, this record suggests the Veteran's eye surgery at the VA facility went well and the Veteran had good initial recovery. The appointment log from the VA facility reflects the Veteran was seen for eye post-op on September 5th and September 12th, 2003, as discussed above. The log then reflects an appointment was scheduled for October 23, 2003 which was cancelled by the VA clinic and automatically re-scheduled for October 29, 2003. Importantly, this October 29th appointment was cancelled by the Veteran because he (the Veteran) couldn't make it. The Veteran had laboratory fasting appointment on October 30, 2003 and failed to show for his November 10, 2003 appointment with his primary care physician. The Veteran was seen on December 10, 2003 for a mental health appointment. At that appointment, the Veteran reported he had not had a followed-up on his eye surgery as recommended and would try to see his eye doctor that day if possible, although he didn't have an appointment. The Veteran was also seen in January 20, 2004 for another appointment. He returned to ophthalmology on April 6, 2004. On April 6, 2004 the VA physician noted the Veteran reported his vision was not quite right. The physician noted significant cataract in the Veteran's left eye. In addition, a B-scan on the Veteran's left eye revealed recurrent total retinal detachment. The physician noted the sclera buccal operation was in place, but the retina had come completely off. The physician urgently referred the Veteran to a retinal surgeon. On April 7, 2004 a private physician from Retina Consultants sent a written statement to the Veteran. This physician expressed concerned that the Veteran was past due for a follow-up examination. The physician explained follow-up visits were important because retinal changes may occur that could only be detected by a physician. He also cautioned proper treatment may prevent more serious complications and minimize visual loss. The physician requested the Veteran contact his office to schedule a follow-up appointment. The Board notes this record, as a whole, suggests the Veteran was also receiving private treatment for his left eye condition during this time. However, these private records are not contained in the evidence of record. In March 2013 the Veteran remanded this issue to the RO/AMC to obtain the referenced private treatment records. In March 2013 the RO/AMC sent a letter to the Veteran at his most recent address of record requesting the Veteran complete an included Authorization and Consent to Release Information for the private health care provider referenced. However, the Veteran did not respond to this letter, which only delays his case. As such, the Board finds that although these private treatment records are still not associated with the claims file, the RO/AMC made a reasonable attempt to contact the Veteran. Consequently these records are not included in the file before the Board due to the Veteran's inaction. The Board finds in requesting the Veteran to complete the medical release form the RO/AMC substantially complied with the remand instructions, and no further development is required. Stegall v. West, 11 Vet. App. 268 (1998); D'Arie's v. Peake, 22 Vet. App. 97 (2008); and Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding the duty to assist is not a one-way street). The Board can not delay the adjudication of the Veteran's case indefinitely due to the inactions of the Veteran to help the Board find evidence. In April 13, 2004 the Veteran was referred to the VA chief of ophthalmology. He noted the Veteran had a history of trauma and chronic rhegmatgenous retinal detachment, status post repair. The physician noted white cataract as well as funnel retinal detachment and opined the Veteran had a poor prognosis. The physician discussed the potential surgical procedure and likely poor prognosis with the Veteran in detail before the Veteran gave informed consent for the surgery. The record also includes the Documentation of Informed Consent Discussion signed by the physician on April 12, 2004. ` On April 20, 2004 the Veteran had a surgical procedure on his left eye. The surgeon noted that earlier that month the Veteran was noted to have light perception vision and a mature white cataract. An ultrasound revealed total retinal detachment in a funnel configuration. After discussing the risks and benefits the Veteran agreed to undergo phacoemulsification for removal of the cataract and pars plana vitrectomy in hopes of repairing the detached retina. The surgical procedure revealed the retina was detached at 360 degrees in a tight funnel configuration with extension intrarentinal and subretinal fibrosis. The surgeon decided not to perform any retinotomies as the Veteran's detachment was unrepairable and any attempts to repair could result in no light perception vision. As such the record clearly establishes the Veteran currently has a detached retina in his left eye which resulted in blindness with only light perception. In May 2006 the Veteran was provided with a VA examination. The examiner reviewed the Veteran's VA treatment records, as well as personally interviewed and examined the Veteran. The examiner noted the Veteran's history consistent with the record, including the Veteran's contention that his three-week post-operative visit was cancelled and not rescheduled until six months later. The examiner opined the Veteran had left eye vision loss. He also opined he could not determine if the Veteran's current left eye vision loss was due to his lack of follow-up treatment for six months without resort to mere speculation. The examiner explained the record includes a gap in treatment from September 2003 until June 2004, but the circumstances surrounding this gap were unknown. The examiner noted he could not determine whether the appointment was not made due to patient negligence or because of error of the VA clerical staff. A conclusion that an etiology opinion is not possible without resort to speculation is a medical opinion and may be relied upon by the Board if the examiner explains the basis for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case the examiner explained that based on the facts of the record he could not determine if the Veteran's current eye condition was due to any delay in treatment from the VA facility because the examiner could not determine the source for any such delay in treatment. As such, the Board finds the examiner provided a basis of his opinion. Therefore the examination was adequate and no additional examination is required. In October 2006 the Veteran's VA physician submitted a written statement to the VA. He noted the Veteran had vitreous hemorrhage in his left eye in June 2003, as well as retinal detachment. The Veteran then had retinal detachment surgery to repair his condition. He was seen for follow-up in April 2004 where it was discovered the retina had come off again. Additional surgery was performed but his retinal detachment was inoperable. The physician noted since that time the Veteran had lost almost all vision in the left eye. As such, the Board finds the evidence of record establishes that the Veteran currently has loss of vision in his left eye except for light perception primarily due to a detached retina in his left eye. However, as will be discussed below, the Board finds this disability was not caused by any VA treatment he received, including any alleged failure to timely re-schedule a follow-up appointment. First, the Board finds that the weight of the evidence of record does not establish the Veteran failed to provide the Veteran with adequate follow-up treatment following his eye surgery. The Board notes the Veteran had consistently reported he experienced difficulties rescheduling his VA follow-up appointment due to the clerk at the VA facility. As a lay person the Veteran is considered to be competent to report what comes to him through his senses, such as difficulties rescheduling a medical appointment. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's statements are not supported by the evidence of record. Most notably, the VA list of appointments reflects the Veteran's missed follow-up appointment on October 23, 2003 was in fact initially cancelled by the VA. However, the record reflects the VA rescheduled his appointment for six days later on October 29, 2003. The Veteran then cancelled this October 29, 2003 appointment saying he couldn't make it. As such, this record provides highly probative evidence against the Veteran's claim that the VA refused to reschedule his missed follow-up appointment. Instead, the record reflects the VA rescheduled the Veteran for the following week, and the Veteran failed to report to his appointment. Furthermore, the Court of Appeals for Veterans Claims (Court) has held that there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. The VA is entitled to the benefit of this presumption unless the Veteran rebuts the presumption with clear evidence to the contrary. Baldwin v. West, 13 Vet. App. 1, 6 (1999). In this case, the presumption of regularity presumes the VA clinic properly discharged their official duties by timely rescheduling the Veteran's follow-up appointment. Although the Veteran has consistently reported that the receptionist refused to reschedule his appointment until six months later, the weight of the evidence of record does not include clear evidence supporting his assertion. Instead, as discussed above, the evidence suggests the Veteran's October 2003 follow-up appointment was cancelled by the Veteran himself. Finally, the Board notes the record does not suggest that the Veteran's current near blindness was due to his failure to follow-up with the VA facility. Instead, the record suggests that re-detachment of the retina was a possible result of the surgery anticipated before the August 2003 procedure. In fact, shortly after his initial procedure in August 2003 the Veteran's surgeon specifically cautioned that retinal detachment may reoccur. As such, the Board finds this result was an anticipated possible side-effect from the August 2003 and was not the result of any alleged failure of the VA to provide a follow-up appointment. Based on the foregoing, the Board finds the Veteran currently has blindness of the left eye with light perception only. However, the Board finds the weight of the evidence of record does not establish this current disability was caused by his VA treatment, or any alleged failure to provide a follow-up appointment. Instead, the evidence seems to establish this condition was a known possible result of the August 2003 procedure. As such, the Board finds the weight of the evidence of record does not establish the Veteran currently has a left eye disability which is the result of VA care or treatment. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. As such, his claim for benefits for left eye blindness with light perception only under 38 U.S.C.A. § 1151 is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the present case, required notice was provided by a letter dated in June 2005, which informed the Veteran of all the elements required by the by the Pelegrini II Court as stated above. The letter also informed the Veteran of what elements were required to establish a claim under § 1151. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained. As discussed above, the record contains reference to private treatment records from Retina Consultants which were not associated with the claims file. The Board previously remanded this issue in March 2013 in order to obtain these referenced private treatment records. The RO/AMC sent a letter to the Veteran's current address requesting he complete the attached Authorization and Consent to Release Information for the private healthcare provider. However, the Veteran did not respond to the RO/AMC's request. As such, the Board finds the VA made a reasonable effort to obtain these private treatment records, however the Veteran did not respond to their request. As such, the Board finds the VA has completed the duty to assist. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (Holding the duty to assist is not a one-way street). Furthermore, should the Veteran later obtain a copy of these referenced private treatment records he can file a new claim seeking benefits under 38 U.S.C.A. § 1151 with his new evidence. The Veteran was also provided with a DRO hearing before the RO in February 2009. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). As discussed above, the examiner found he could not provide an opinion on this matter without resort to mere speculation. However, the examiner provided an explanation of his basis for such an opinion. As such, the Board finds the examiner's opinion is adequate. Jones v. Shinseki, 23 Vet. App. 382 (2010). In any event, the critical question in the case is factual, not medical. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs