Citation Nr: 1325776 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-31 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a left eye disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from November 1962 to November 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO denied the Veteran's claim. In a February 2013 remand, the Board remanded the claim for further evidentiary development and adjudication. In the remand the Board instructed the agency of original jurisdiction (AOJ) to obtain records of VA treatment the Veteran had received, including the July 2008 surgery in question; provide the Veteran with a VA examination; and then re-adjudicate the claim. The AOJ obtained the identified records and scheduled the Veteran for VA examination, which was conducted in May 2013. The AOJ the issued the Veteran a supplemental statement of the case (SSOC) in June 2013 in which it again denied the Veteran's claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In August 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the Houston RO. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. In July 2008, the Veteran underwent a left eye bleb needling procedure at the VA Medical Center (VAMC) in Miami, Florida, to treat complications following an earlier surgery for advanced open-angle glaucoma of the left eye. 2. The competent medical evidence does not reflect any additional disability caused by the July 2008 surgery. CONCLUSION OF LAW The criteria for compensation benefits under 38 U.S.C.A. § 1151 for a left eye disorder have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.361, 17.32 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. In this respect, through an October 2008 notice letter, the RO notified the Veteran of the legal criteria governing his claim and the evidence that had been considered in connection with his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the October 2008 letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned October 2008 letter. The Board also notes that although notice regarding an award of an effective date or rating criteria was not provided until after the Veteran's claim was initially adjudicated, the Veteran was provided such notice via the SSOC provided to him in June 2013. The Board does not now have such issues before it. See, e. g., Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that any late notice in this case under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The medical records pertaining to the Veteran's VA care have been obtained and associated with the claims file. Additionally, the RO has obtained VA medical examinations and opinions with respect to the claim on appeal. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the January 2009 and May 2013 VA opinions obtained in this case are collectively adequate, as they are predicated on review of the VA medical records in the Veteran's claims file. The opinions consider all of the pertinent evidence of record, to include records of the Veteran's July 2008 surgery, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). Otherwise, neither the Veteran nor his representative has alleged that there are any outstanding medical records probative of the Veteran's claim that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran filed his claim for compensation benefits under 38 U.S.C.A. § 1151 in July 2008. He claims that he developed decreased visual acuity in his left eye following a bleb needling procedure he underwent in July 2008. He claims that an "error in judgment" of the ophthalmologist who conducted the July 2008 procedure led to complications, namely a loss in visual acuity in the left eye. He further asserts that he first noticed a decrease in the visual acuity of his left eye shortly after the July 2008 surgery and has had it continuously until the present. With respect to claims filed on or after October 1, 1997, 38 U.S.C.A. § 1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. See VAOPGCPREC 40-97 (Dec. 31, 1997). For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability 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 the Department 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). The Board notes that regulations to implement the current version of 38 U.S.C.A. § 1151 were promulgated in August 2004. See 38 C.F.R. § 3.361 (2012). The effective date of the change was September 2, 2004. (See 38 C.F.R. § 3.358 pertaining to claims for compensation for disability from hospitalization, or medical/surgical treatment filed prior to October 1, 1997). A review of 38 C.F.R. § 3.361 reflects that, in pertinent part, the regulation is a restatement of the criteria of 38 U.S.C.A. § 1151. In this case, the Veteran has been provided the provisions of 38 C.F.R. § 3.361. As such, the Board finds that the Veteran has been properly notified of the statutory and regulatory provisions pertaining to his claim. With respect to 38 C.F.R. § 3.361, to determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of 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). 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 (see 38 C.F.R. § 3.361(c)); and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that 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). Finally, the determination of whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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. 38 C.F.R. § 3.361(d)(2). The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider 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. 38 C.F.R. § 3.361(d)(2). A review of the Veteran's claims file reflects that he underwent surgery in April and May 2008 to treat advanced open-angle glaucoma on his right and left eyes, respectively. Following the glaucoma surgery, records from the Miami VAMC reflect that the Veteran's intraocular pressure was still too high, threatening the results of the glaucoma surgery. Thus, on July 1, 2008, the Veteran underwent a surgical procedure known as a bleb needling to relieve the intraocular pressure in the left eye. On the day of the surgery, prior to the bleb needling, the Veteran's left eye vision was recorded as 20/40. No complications were noted at the time of the surgery, although the Veteran was noted later in July 2008 to have developed a corneal epithelial defect, or epitheliopathy, following the procedure. Follow-up treatment notes in July and August 2008 noted that the epitheliopathy continued to improve and that his intraocular pressure was "great." At an August 12, 2008, treatment visit, the Veteran's left eye vision was noted to be 20/60, and he reported that the vision in his left eye had "gotten a lot better since the last visit." One month later, the Veteran's left eye vision had continued to improve to 20/50. At a later follow-up visit in April 2009, the Veteran again complained that his left eye vision had decreased following the bleb needling. At that time, his ophthalmologist noted that any progression of a decreased visual acuity was a likely progression of a degenerative process that began prior to the surgery. A second ophthalmologist agreed in a July 2009 treatment note, opining that the most likely etiology of the Veteran's decreased vision in the left eye was his glaucoma. At that time, vision in the Veteran's left eye was found to be 20/40. Subsequent treatment records indicate that the Veteran's left eye vision had stabilized at 20/40 by September 2009, at which time he was noted to complain of foggy vision. He was recommended for cataract surgery in February 2010, which he underwent in March 2010. Following that surgery, the Veteran's left eye vision has improved to 20/25, which has been consistently recorded from April 2010 to the most recent eye examination in April 2012. The Veteran was provided with a VA examination in January 2009. Report of that examination reflects that the Veteran complained of worsening visual acuity in his left eye following the July 2008 eye surgery, as well as intermittent foggy vision, problems with night vision, and pain in his left eye. The examiner found the Veteran's left eye vision to be 20/50-1 and observed two "tiny" scars in the left cornea. The examiner opined that it was "less likely than not that there was any carelessness, neglect, lack of proper skill, error in judgment or fault on the part of the VA" regarding the July 2008 bleb needling procedure. The examiner did find that the subsequent epitheliopathy was "an event not reasonably foreseeable by the hospital or surgeon" but that it was treated appropriately following the July 2008 and that had largely resolved at the time of examination. The examiner further observed that the Veteran has "experienced a reduction in visual acuity" in his left eye but stated that he was unable to opine as to its etiology without resorting to speculation. Pursuant to the Board's February 2013 remand, the Veteran again underwent VA examination in May 2013. At that time, the examiner comprehensively reviewed the Veteran's medical history and claims file. The examiner, an ophthalmologist and glaucoma specialist, first opined that the May 2008 glaucoma surgery on the Veteran's left eye was "absolutely the proper treatment." When his intraocular pressure on the left was noted to be elevated in June 2008, the examiner noted, the July 2008 bleb needling procedure was a proper way to reduce the pressure. The examiner noted that the procedure was successful but led to temporary low intraocular pressure, which is a known result of bleb needling and can cause blurry vision. The examiner also noted that a medication was injected at the time of the bleb needling that is known to cause "corneal toxicity or irritation" that can cause temporary decreases in visual acuity, as occurred in the Veteran's case. However, the examiner noted that the Veteran's visual field is stable and that his visual acuity in the left eye has improved to 20/25 following the surgery-an improvement over the 20/40 vision in his left eye prior to the July 2008 procedure. The examiner thus concluded that the Veteran has not sustained any additional disability to his left eye as a result of the July 2008 bleb needling surgery. She noted that the procedure "did result in temporary loss of vision" in his left eye but pointed out that the vision loss "has resolved as expected over time." Further, the examiner found that the procedure was a proper treatment for the failed May 2008 glaucoma surgery and that it had achieved its desired result of lowering the Veteran's intraocular pressure. The Board acknowledges that in statements submitted in support of his claim and in testimony before the undersigned Veterans Law Judge, the Veteran contends that he currently experiences a loss of visual acuity of approximately 30 percent of his pre-surgery vision in the left eye that he attributes to the July 2008 surgery. He further asserts that he believes the ophthalmologist who performed the July 2008 surgery displayed an "error in judgment" by rushing to perform the surgery and not testing the surgery on his right eye before performing it on his left eye. Following a review of the evidence in this case, and the applicable laws and regulations, it is the Board's conclusion that the preponderance of the evidence is against the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for a left eye disorder. As noted above, a VA ophthalmologist and glaucoma specialist opined in the May 2013 VA examination that VA's treatment of the Veteran's left eye glaucoma, including the July 2008 bleb needling surgery, did not cause any additional disability of the left eye. Similarly, the January 2009 VA examiner opined that the epitheliopathy that followed the July 2008 surgery had largely resolved, and no additional disability was noted. That opinion is uncontradicted by other competent evidence of record. In sum, there is simply no evidence, other than the Veteran's unsubstantiated assertions, to show that the Veteran has additional disability that was caused by the July 2008 surgery. As noted above, to obtain benefits under 38 U.S.C. § 1151(a), there must be evidence of a qualifying additional disability that was caused by the treatment furnished by VA. Given the reasoned negative opinion offered by the VA examiners in January 2009 and May 2013, which relied on consideration of both the Veteran's medical history and current medical understanding of eye procedures such as bleb needling and their temporary and permanent results, the Board finds that the January 2009 and May 2013 VA examiners' opinions are sufficient to decide this claim. Importantly, these opinions are uncontradicted by any probative evidence of record. To that end, the Board notes that the May 2013 VA examiner provided a report that set out the Veteran's history and her findings in detail, and contained fully articulated reasons for her conclusions. The examiner-a VA ophthalmologist and glaucoma specialist-found that the Veteran simply does not experience an ongoing decrease in visual acuity in his left eye or any other left eye disorder other than the preexisting glaucoma. In so finding, she provided a thorough, clear rationale explaining that the bleb needling procedure the Veteran underwent in July 2008 was a proper response to his failed glaucoma surgery and resulted in expected, but temporary, complications such as blurry vision and decreased visual acuity due to epitheliopathy. Further, the examiner observed that although he experienced a temporary decrease in visual acuity, the Veteran's most recent VA records, including an April 2012 VA eye examination, indicate that the visual acuity in his left eye is currently 20/25, which is in fact an improvement over the 20/40 vision in his left eye that was recorded immediately prior to the July 2008 procedure. The examiner thus concluded that the Veteran does not have a current additional left eye disability linked to the July 2008 procedure. In this case, the Board acknowledges that the Veteran has proffered his theories of causation, which are that the problems from which he currently suffers, including deceased visual acuity, sensitivity to light, and blurry vision, were caused by the July 2008 bleb needling procedure. However, the VA ophthalmologist who reviewed the July 2008 surgery report and the Veteran's medical records, including those following the surgery, found in May 2013 that the surgery was performed according to current standards and without long-term complication. Although the Veteran conjectures that he developed decreased visual acuity in the left eye following the surgery, there is no evidence to support the Veteran's belief. To the contrary, and as noted by the May 2013 VA examiner, the Veteran's visual acuity in the left eye has actually improved following the surgery to a level better than that prior to the procedure. Further, the examiner addressed the Veteran's contention that the July 2008 treatment provider "rushed to judgment" by pointing out that the bleb needling procedure is a proper treatment for the increased intraocular pressure the Veteran was experiencing. There is additionally simply no evidence in the record whatsoever to suggest that the procedure should have been "tested" in the Veteran's right eye prior to performing the left eye procedure, as the Veteran has contended on multiple occasions. In sum, the Board finds there to be no objective evidence to suggest that the Veteran suffers from any disability that was caused by his July 2008 bleb needling surgery. Importantly, and contrary to the Veteran's lay contentions, the May 2013 VA examiner concluded that there was no additional disability of the left eye that currently exists but did not exist prior to the July 2008 procedure. In the absence of competent evidence that demonstrates additional disability caused by VA, the Board concludes that compensation under 38 U.S.C.A. § 1151 is not warranted. Accordingly, the Board concludes that the greater weight of the evidence is against the claim. The evidence does not show that VA treatment or absence thereof caused a disability or resulted in any additional disability. Because such a causal connection must be shown before the question of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or whether an event not reasonably foreseeable was the proximate cause of additional disability, the Board's analysis ends with the conclusion that no additional disability was caused by VA. Accordingly, the Board must conclude that the greater weight of the evidence is against the claim. Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C.A. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a left eye disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs