Citation Nr: 1320830 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 06-26 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disability (loss of vision secondary to scarring resulting from retinal detachment), claimed as due to Department of Veterans Affairs failure to provide timely treatment. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The Board denied the Veteran's appeal in a decision issued in May 2008. The Veteran thereupon appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2009 the Court issued an Order granting a Joint Motion of the Parties to vacate the Board's decision and to return the case to the Board for further consideration. In July 2010 the Board remanded the case to the RO for further development. The file has now been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran had a detached retina in the left eye in January 2005 that was subsequently repaired by a non-VA provider; the Veteran has residual additional disability manifested by loss of vision in the left eye resulting from chronic changes status post retinal detachment formation. 2. The Veteran's additional disability of the left eye is not due to 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. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability are not met. 38 U.S.C.A. §§ 1151, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, 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, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Complete notification in this case was provided to the Veteran by a letter in July 2005, and he had ample opportunity to respond prior to the March 2006 rating decision on appeal. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment record (STRs) have been obtained, as have the Veteran's post-service treatment records from those VA and non-VA medical providers identified by the Veteran as having afforded relevant treatment. In a claim for compensation benefits under 38 U.S.C.A. § 1151 the Board must consider whether VA Quality Assurance (QA) records relating to the Veteran's treatment should be obtained. See VAOPGCPREC 1-2011 (April 19, 2011); Hood v. Shinseki, 23 Vet App (2009). In this case the Veteran's surgery was provided by a private medical facility not affiliated with VA, so there is no indication that any VA QA records would have been generated. VA has no duty to seek to obtain that does not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The Veteran has been afforded a hearing before the RO's DRO; he has not requested a hearing before the Board. The Veteran has also been afforded appropriate medical examinations. In that regard, the Veteran's representative submitted a letter in December 2007 asserting that a VA examination in March 2006 should be disregarded due to purported conflict of interest on the part of the examiner, who had been actively involved in the Veteran's treatment. However, the file contains a subsequent private medical examination and opinion dated June 2010. The medical question of whether the Veteran has an additional disability secondary to detached retina has been resolved in the Veteran's favor; the remaining question of whether such disability is due to negligence or fault on the part of VA is an adjudicative, not medical, issue. Accordingly, no further remand for medical examination or opinion is required at this point. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Applicable Legal Principles Statutes and Regulations A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To establish causation, the 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 or died 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 continuation or natural progress. 38 C.F.R. § 3.361(c)(2). 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 the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). The Veteran bases his claim on the regulations pertaining to transportation of claimants and beneficiaries, which at the time was defined by the statute 38 U.S.C.A. § 111 (2002) and its implementing regulation 38 C.F.R. § 17.143 (2005). Since July 2008, the regulation has been superseded by 38 C.F.R. § 70.10 (2009-2012). The statute, 38 U.S.C.A. § 111, provides that VA may pay the actual necessary expense of travel (including lodging and subsistence), or in lieu thereof an allowance based on mileage traveled, of any person to or from a VA facility. 38 U.S.C.A. § 111(a). VA shall make payment for travel for a veteran with a service-connected disability rated 30 percent or more. 38 U.S.C.A. § 111(b)(1)(B). Careful reading of the statute shows that the payment or reimbursement contemplated is for travel by road or rail; nothing in the statute contemplates providing interstate air travel for the purpose of obtaining medical treatment. The Board notes at this point that 38 U.S.C.A. § 111(a) was amended in October 2008 to specifically state that "actual necessary expense of travel" includes the reasonable costs of airfare if travel by air is the only practical way to reach a VA facility; see Pub.L. 110-387, Title IV, § 401(a)(1)(B), Oct. 10, 2008, 122 Stat. 4122. This provision was not present in the statute at the time of the incident that is herein in contention. In January 2005, 38 C.F.R. § 17.143 provided in relevant part that transportation at government expense shall be authorized, subject to the deductible established in 38 C.F.R. § 17.101 (2005), for a veteran with a service-connected disability rated at 30 percent or more, for treatment of any condition. 38 C.F.R. § 17.143(b)(2) (2005). A veteran or other person shall be considered unable to defray the expenses of travel if the person has a service-connected disability rated at least 30 percent. 38 C.F.R. § 17.143(e)(3) (2005). The accessories of transportation, meals and lodging en route and accompaniment by an attendant or attendants may be authorized when determined necessary for the travel. 38 C.F.R. § 17.143(l) (2005). Payment may be approved for travel performed under 38 C.F.R. § 17.145 without prior authorization only in those cases where VA determines that there was a need for prompt medical care that was approved and: (1) the circumstances prevented a request for prior travel authorization; or, (2) due to VA delay or error prior authorization for travel was not given; or, (3) there was a justifiable lack of knowledge on the part of a third party acting for the veteran that a request for prior authorization was necessary. In other cases, payment may be approved for such travel without prior authorization only upon a finding by the Secretary or his designee that failure to obtain prior authorization was justified. 38 C.F.R. § 17.145 (2005). The regulation was implemented by Veterans Health Administration (VHA) Manual M-1, Operations, Part I, Medical Administration Service, Chapter 25, Beneficiary Travel dated July 1991. In relevant part, Chapter 25 provides policy and procedural instructions under which transportation at Government expense may be furnished eligible beneficiaries and their attendants traveling to or from VA facilities or other places for the purpose of examination, treatment or care. Pursuant to these instructions, travel arrangements shall not be ignored or overlooked when authorizing an emergency medical admission or outpatient service. Par. 5.04(h)(4). Individuals eligible for beneficiary travel who elect to obtain medical care from other than the nearest appropriate VA health care facility to their location will be paid transportation costs based on the distance from their location to the nearest VA health care facility that could have provided the care. Par. 25.04(h)(5). When the facility nearest the applicant's location cannot provide the required care, another facility that is feasibly available and has the capacity of treating the applicant's disability becomes the nearest appropriate facility; in those circumstances, the cost of travel will be authorized and paid by the facility that provides the care. Chapter 25.04(h)(6). Transportation necessary for interfacility transfer of a patient may be authorized when such travel is necessary to transfer the patient from one health care institution to another only if both institutions furnish the individual with treatment at VA expense, the transfer is necessary for the continuation of such treatment and the transferring facility is incapable of providing the necessary services. Par. 25.09(a). Transfer of patients hospitalized at VA expense in the Commonwealth of Puerto Rico to VA health care facilities in the contiguous states for specialized treatment is authorized, provided prior consent of the appropriate Regional Director is obtained before initiating such transfer actions. Par. 25.09(b). Under no circumstances will an outpatient be admitted solely for the purpose of facilitating an interfacility transfer to another facility for inpatient care; see NOTE to Par. 25.09. Patients who are hospitalized by VA may be transported by Military Airlift Command (MAC) for bona fide medical reasons and when commercial transportation facilities are not available or inadequate, subject to reimbursement. M-1, Part I, Chapter 25, Section V. In the consideration of appeals, the Board is bound by the applicable statutes, VA regulations and the precedent opinions of the VA General Counsel; the Board is not bound by VA manuals, circulars or similar administrative issues. 38 C.F.R. § 19.5. Evidentiary Considerations In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran contends that he has additional disability because VA delayed his treatment for detached retina until the condition progressed in severity to the point where eventual surgery in January 2005 could not correct his condition. The Veteran has advanced three arguments. First, he contends VA failed to identify his condition prior to January 2005. Second, he contends VA should have referred him to a Dr. V____, of the Medical Center of Puerto Rico, who was prepared to perform the requisite surgery when the VA facility in Puerto Rico could not do so. Third, he contends VA should have transported him to the VA Medical Center in Miami, Florida, which could have performed the surgery when the VA facility in Puerto Rico could not do so. Background Review of the file shows no VA examination or treatment for the eyes prior to January 2005. In July 2003 he was treated by VA for knee pain, and in June 2004 he was treated for a pain in the testicle. In July 2004 he was treated for rib pain. The Veteran's VA active problems list prior to January 2005 is silent in regard to any visual disorder, complaint or examination. In November 2004 the Veteran was seen by Dr. Noel S. DeLeon Roig, a private ophthalmologist, who performed laser surgery to repair a retinal tear in the left eye. The Veteran appeared to be stable after surgery. On January 4, 2005, the Veteran presented to Dr. DeLeon complaining of renewed symptoms. Dr. DeLeon determined that immediate surgery was advisable, but the ambulatory surgical center was closed for repairs. Attempts were made to place the Veteran with other private physicians, but all of those providers were on vacation and thus not available. A call to the VA medical center (VAMC) revealed that the two VA physicians who were qualified to perform the surgery were also on vacation. The Veteran was advised to go the VAMC emergency room. The Veteran presented to the VA emergency room the same day (January 4, 2005) and was seen by a VA ophthalmologist, Dr. H.V., who informed the Veteran that VA's retinal specialist was on vacation and therefore not available. The Veteran was advised to return the following day, when VA would attempt to find an appropriate specialist. On January 5, 2005, the Veteran returned to the VA eye clinic, where he was treated by clinician J.A.R. It proved to be impossible to obtain the services of a local retinologist on a fee basis until the following Monday (January 10) due to the Christmas holidays. The Veteran was advised that a VA retinologist would be available locally on Monday. The Veteran was offered the option of travel to Miami VA for evaluation but he decided to stay in Puerto Rico following discussion of the risks and benefits of both options. On January 10, 2005, the Veteran was treated by a VA retinal specialist, who recommended surgery with endophotocoagulation. However, surgery could not be performed by VA because the endolaser was not available. The Veteran was advised to return to Dr. DeLeon to get surgical treatment as soon as possible. The Veteran presented to Dr. DeLeon the following day (January 11) where he was found to have a giant retinal tear. The Veteran was advised that his visual prognosis was poor due to the length of time that had passed since the tear. Retinal surgery (pars plana vitrectomy with membrane splitting and retinal attachment) was performed by Dr. DeLeon on January 12. Despite surgery and follow-up treatment, the record reflects the Veteran sustained uncorrectable loss of vision in the left eye. The Veteran asserted in his claim, received in May 2005, that he had been told by the VA clinician that he could receive treatment by the VAMC in Miami but that he would have to pay his own expenses and those of his wife (air travel, lodging and food) for up to 5 or 6 weeks. The Veteran stated that he informed the VA representative who had made the proposal that he could not afford the cost of such treatment in Miami. In August 2005 the Veteran was examined by a VA physician for the purpose of obtaining an opinion regarding whether he had sustained loss of vision in the left eye as a result of a failure by VA to timely treat his condition. The VA examiner diagnosed status post partial retinal detachment left eye, but declined to provide an opinion due to conflict of interest. The file was reviewed by another VA physician in January 2006, who noted the history of the Veteran's claim in detail. The examiner diagnosed loss of vision in the left eye resulting from chronic changes status post retinal detachment formation. The examiner stated that the waiting time between the onset of the retinal detachment and the surgical management was the most likely cause of the poor visual outcome despite the appropriate surgical treatment. However, the VA physician opined that VA had managed the Veteran's condition adequately and had recommended to the Veteran that he transfer to VAMC in Miami because no private or VA specialists were available locally, but the Veteran refused transfer. The examiner thus stated that additional disability was not caused by carelessness, negligence, lack of proper skill, error in judgment or similar finding of fault on the part of VA. The Veteran testified before the RO's DRO in October 2006 that he sought VA treatment in November 2004 because he had begun to see "black clouds and little sticks" in his left eye. He stated he was advised at the time that he would have to wait 4-5 weeks for an appointment with an ophthalmologist, but he was notified shortly thereafter that there had been a cancellation and he could be seen. The Veteran testified that he reported to the VA eye clinic and had an examination of the right eye, but his left eye could not be examined because of discomfort and the VA physician terminated the examination because the Veteran was "uncooperative" with the examination. The Veteran thereupon sought treatment from a private physician, Maria Ortiz, who discovered a tear in the retina of the left eye and referred the Veteran to retinologist Dr. DeLeon. The Veteran then saw Dr. DeLeon, who performed the laser surgery and advised him to return if he saw a "black panel" because that would indicate a detached retina. The Veteran testified that in January 2005 he returned to Dr. DeLeon's office because he was having the symptoms of detached retina about which he had been warned, and was advised to have surgical intervention. Dr. DeLeon's staff tried to coordinate with different facilities but everyone was on vacation. At the Veteran's suggestion, he was referred to VA, where he was examined by a "Dr. Villarubio" who advised him to have immediate surgery, which he (Dr. Villarubio) could perform at the "Medical Center." The following day the Veteran returned to the VA, where he was seen by a different physician who told the Veteran to get on an airplane and go to Miami, even though "Dr. Villarubio" was willing and able to operate on him in Puerto Rico. The Veteran was told that he would have to independently arrange for transportation, at his own expense. The Veteran explained that he could not afford to pay for the trip, and was advised to return to VA the following Monday when the surgeon was scheduled to be back. The file contains a letter dated in June 2010 from Dr. Louis Kasner, a private ophthalmologist who stated he had reviewed the Veteran's VA and private treatment records. Dr. Kasner stated that the 8-day delay in treatment between January 5, 2005 (the date the retinal detachment was diagnosed by a VA ophthalmologist) and January 12, 2005 (the date surgery was finally performed to re-attach the detached retina) was nearly 100-percent responsible for the poor visual result following surgery. This conclusion was based on the documented severe drop in visual acuity between January 4 through January 10 and then the precipitous decline on January 11; had the surgery been performed in the appropriately urgent fashion the retina could have been reattached prior to complete involvement of the macula, leading almost certainly to a much better visual outcome. In sum, if the delay in surgical treatment was the result of VA's failure to provide such treatment in timely fashion in Puerto Rico, or to enable the Veteran to obtain surgical treatment in Miami (as seemed to be the case), then Dr. Kasner's conclusion must be that such failure was the direct cause of the Veteran's poor vision in his left eye. The Veteran's attorney submitted a letter in June 2010 asserting that the Veteran, having been 100 percent disabled due to service-connected schizophrenia in January 2005, was entitled to emergency transportation to Miami under the clear meaning of 38 C.F.R. § 17.143(b) (2005). The attorney argued that the Veteran had been denied immediate emergency medical care that was readily available in Miami due to VA's carelessness, negligence, lack of proper skill and error in judgment. The representative argued the Veteran should be awarded compensation under 38 U.S.C.A. § 1151 as well as special monthly compensation (SMC) for loss of vision in one eye and also a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran's attorney submitted a letter in May 2012 asserting that the Veteran had incurred additional disability because he was erroneously informed by the VA in January 2005 that he would have to pay his own expenses to travel to Miami; based on this purported erroneous information the Veteran opted to stay in Puerto Rico, with resultant additional delay in obtaining the requisite surgery. The representative asserted that under the law at that time VA was obligated to make proper legal arrangements for immediate medical treatment in Miami, and that VA had egregiously erred and completely mishandled the case by not providing the Veteran with the proper immediate medical attention in Miami, at VA expense, that he needed to save his left eye. Analysis The medical evidence of record, in the form of the VA examination in January 2006 and the opinion by Dr. Kasner in June 2010, agrees that the Veteran has additional disability in the form of loss of visual acuity secondary to the detached retina in January 2005. The question before the Board is whether such additional disability is proximately caused by fault on the part of VA. The Board will address the Veteran's three theories of entitlement to compensation under 38 U.S.C.A. § 1151 in turn. In regard to the Veteran's first contention (that VA failed to identify his condition), the Board is unable to find any fault on the part of VA. The Veteran asserts he was treated by VA's eye clinic in November 2004 and had an incomplete examination, but no such treatment is documented in the VA treatment record, to include records from VA's eye clinic beginning in January 2005 that would normally refer back to previous visits (if any). As to the Veteran's second contention (that VA should have referred him to "Dr. V_____" for fee-basis surgery), the record indicates that the physician the Veteran identifies as "Dr. V____" was apparently VA ophthalmologist Dr. H.V., whose name is very similar to the name cited by the Veteran. It appears from the notes that Dr. H.V. was an ophthalmology resident, not a retinologist. As the Veteran indicated in his testimony, Dr. H.V. examined the Veteran at the VA hospital on January 4, 2005, and informed the Veteran that he should have surgery, but the context of Dr. H.V.'s clinical note (plan to follow up the next day to try to find a retinologist for surgical management) clearly shows that Dr. H.V., the provider the Veteran identifies as "Dr. V______" was not in fact able to perform such surgery despite the Veteran's understanding to the contrary. In that regard, neither Dr. DeLeon nor the VA eye clinic was able, after diligent search, to find a retinologist in Puerto Rico who could perform the surgery within the next few days. As the VA eye clinic was unaware of any private provider who would have been able to provide the requisite surgery, the Board finds no fault on the part of VA in not referring the Veteran to a private provider on a fee-for-service basis. As to the Veteran's third contention (that VA should have transported him to Miami for surgery), the Board stated in its May 2008 decision that VA was not obligated to provide the Veteran with transportation from Puerto Rico to Miami. The Board's decision was subsequently vacated by the Court because the Board had not specifically considered the application of 38 C.F.R. § 17.143 to the Veteran's claim. The Board has found, on careful reading of the statute and the regulation, that the Veteran met the threshold for transportation, as he was at least 30 percent disabled for a service-connected disability. 38 U.S.C.A. § 111(b); 38 C.F.R. § 17.143(b) (2005). As VA treatment was not available in Puerto Rico, and as the next available VA facility able to provide treatment was in Miami, travel by air would have been appropriate. Although nothing in the statute or the regulation placed an obligation on VA to actually transport the Veteran to Miami, such transportation was at least possible. Thus, the VA representative who informed the Veteran that VA could not provide transportation to Miami was in error. There is no medical question that delay in obtaining surgery during the eight-day period from January 5-12, 2005, proximately caused the Veteran's additional disability manifested by loss of vision in the left eye; this was the clear medical opinion voiced by Dr. Kasner and it is consistent with the opinion of the VA examiner. The legal question before the Board is whether such delay in surgery can be attributed to fault on the part of VA, to specifically include the erroneous information he was given regarding VA payment or reimbursement of travel to Miami, constitutes medical fault under the criteria for compensation under 38 U.S.C.A. § 1151. To establish that carelessness, negligence, error in judgment, or similar instance of fault on VA's part proximately caused a Veteran's additional disability, it must be shown that the hospital care caused the Veteran's additional disability and that VA failed to exercise the degree that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d)(1). The Veteran in this case does not assert any fault on the part of VA in terms of the clinical care he actually received; rather, he asserts that he should have been informed that he could have been flown at VA expense for treatment elsewhere. In a claim that similarly asserted entitlement to benefits because the claimant had been given erroneous information from a VA employee, the Court found that although the claimant may have in fact received erroneous advice she was not entitled to benefits based on estoppels. McTighe v. Brown, 7 Vet. App. 29, 30-31 (1994). In the present case, the Veteran on appeal asserts that he detrimentally relied on the misinformation he had received and was thus precluded from getting timely surgical intervention. "Detrimental reliance" is a theory in equity, like the "estoppels" theory cited in McTighe; the Board is bound by the law and is without authority to grant benefits on a equitable basis. See 38 U.S.C.A. § 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has carefully considered the opinion of Dr. Kasner that if the delay in surgical treatment was the result of VA's failure to provide such treatment in timely fashion in Puerto Rico, or to enable the Veteran to obtain surgical treatment in Miami, then such failure by VA was the direct cause of the Veteran's poor vision in his left eye (emphasis added). Although Dr. Kasner is competent to provide an opinion regarding the degree to which delay in surgery contributed to the Veteran's post-surgical residuals, the degree to which the delay in obtaining surgery was due to a failure on the part of VA is a legal, not a medical, question. As discussed above, the Veteran's additional disability of the left eye is not due to 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. 38 U.S.C.A. § 1151. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence discussed above the Board has considered the lay evidence offered by the Veteran in the form of his testimony before the DRO, his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran in this case offers lay evidence to show the progression of his left eye symptoms since November 2004, to include statements that were made to him by VA and non-VA providers. A layperson is competent to testify in regard to the onset and recurrence of symptoms. The Veteran's assertion that his current disorder is due to delay in obtaining surgery for detached retina at an earlier date is corroborated by competent medical opinion. However, the question of whether such delay is due to negligence or fault on the part of VA is a legal determination that is not within the competence of a layperson. Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372, 1376-77. In sum, based on the evidence and analysis above the Board has found that the Veteran does not have a left eye disability that is due to 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. Thus, the criteria for compensation under the provisions of 38 U.S.C.A. § 1151 are not met and the claim must be denied. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs