Citation Nr: 1327435 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 05-31 498 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in New York, New York THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for left eye blindness and enucleation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from October 1961 to October 1963. This matter came before the Board of Veterans' Appeals (Board) on appeal from an January 2005 decision of the New York, New York, Regional Office (RO) which tacitly denied compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder. In May 2009, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in ophthalmology. In June 2009, the requested VHA opinion was incorporated into the record. In June 2009, the Veteran and representative were provided with a copy of the VHA opinion. In August 2009, the representative submitted additional argument. In September 2009, the Board denied compensation under the provisions of 38 U.S.C.A. § 1151 for left eye blindness and enucleation. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2010, the Court granted the Parties' Joint Motion for Remand; set aside the September 2009 Board decision; and remanded the Veteran's appeal to the Board for additional action of attempting to obtain consent forms regarding eye procedures performed at VA medical facilities. In April 2011, the Board remanded the Veteran's claim to the RO for additional action. In August 2012, the Board determined that there had not been substantial compliance with its April 2011 Remand instructions, and again remanded the Veteran's appeal to the RO for development of trying to obtain consent forms and related treatment records pertaining to eye procedures performed at VA medical facilities. In March 2013, the Board requested an opinion from an independent medical expert (IME) in ophthalmology. In March 2013, the requested IME opinion was incorporated into the record. In May 2013, the Veteran and representative were provided with a copy of the IME opinion. In June 2013, the Veteran submitted additional argument. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. The March 2001 ocular surgical procedure performed at the Northport, New York, VA Medical Center (VAMC) caused seepage of fluid under the left retina. 2. Seepage of fluid under the left retina was an event not reasonably foreseeable. 3. The March 2001 ocular surgical procedure resulted in additional disability including left eye phthisis (atrophy), pain, and, eventually, enucleation. 4. Such additional disability was not the result of the Veteran's willful misconduct. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, left eye phthisis, pain, and enucleation were incurred as the result of VA ocular surgical treatment. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board grants compensation for left eye phthisis, pain and enucleation; therefore, no further discussion of VA's duties to notify and to assist is necessary. 38 U.S.C.A. § 1151 The Veteran asserts that compensation under the provisions of 38 U.S.C.A. § 1151 for left eye enucleation is warranted due to seepage of fluid under the retina and other complications due to either defective equipment and/or the physician's lack of familiarity with the devices used during surgical procedures performed between February 2000 and May 2003 at the VAMC. The Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151was received by VA in January 2005. Compensation under the provisions of 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran's willful misconduct; (2) 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; and (3) the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In adjudicating claims received on or after October 1, 1997, it is necessary to make several factual determinations as set forth in 38 C.F.R. § 3.361. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before 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 to the veteran's condition after such care, treatment, examination, services, or program has stopped. Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the certain causation requirements. 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 does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 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. The proximate cause of disability is the action or event that directly caused the disability as distinguished from a remote contributing cause. 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and VA either failed to exercise the degree of care that would be expected of a reasonable health care provider or 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. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b) as in emergency situations. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In 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. An October 1999 VA ophthalmological treatment record notes that the Veteran was diagnosed with bilateral cataracts. VA clinical documentation dated in February 2000 states that the Veteran underwent left eye cataract surgery with intraocular lens (IOL) placement. VA clinical documentation dated in December 2000 reports that the Veteran was diagnosed with left eye pseudophakic rhegmatogenous retinal detachment, status post cryotherapy with injection of C3F8 gas and underwent a December 18, 2000 left eye scleral buckle. The treating VA surgeon observed that: the Veteran provided informed consent to the procedure; the physician discussed "the possibility of non regaining any usual vision" with the Veteran prior to the procedure; the Veteran's retina was attached during the procedure; and his vision was improving. A December 2000 VA consent form signed by the Veteran reflects that the Veteran was informed that the procedure could result in complications including "bleeding, infection, need for additional surgery, and no guarantee of recovery of vision." VA clinical documentation dated in March 2001 conveys that the Veteran was diagnosed with left eye recurrent retinal detachment status post multiple pnuemo-retinopexies, retinal laser, and scleral buckling and underwent left eye indirect argon laser peripheral retinopexy. The associated VA consent form does not specify any potential complications of the procedure. A June 2001 written statement from the Director of the VAMC reports that: the VA physician performing the Veteran's March 2001 ocular surgical procedure to correct the Veteran's detached left retina "was concerned about the result of one of his surgical maneuvers (removing surgical fluid and replacing it with air) that resulted in seepage of fluid under the retina" and "this problem, while unexpected, is a risk of this procedure in a patient with your severe ocular condition and was corrected by him." The Director noted that while the Veteran's VA physician "interpreted a slow response as an equipment failure, the surgical equipment was "functioning properly" during the procedure. The Director clarified that the treating physician "now realizes that his confusion between the normal equipment function and what, at the time of surgery, was his perception of equipment failure." VA clinical documentation dated in December 2001 states that the Veteran was diagnosed with left eye recurrent tractional retinal detachment following vitrectomy, membrane stripping, endolaser, and silicone oil and underwent left eye vitrectomy, silicone oil exchange, membrane stripping, and endolaser treatment. A January 2003 VA ophthalmological treatment record conveys that: the Veteran had "very poor vision in his left eye since January 2001;" his vision had "been reduced to light perception only and is permanent;" and "the cause of his problem is degenerative globe disease." An April 2003 VA ophthalmological treatment record notes that the Veteran exhibited a phthisical left eye with corneal infiltrate and thinning centrally. VA clinical documentation dated in May 2003 indicates that the Veteran presented a history of multiple left eye surgeries; a resultant phthisical left eye; and corneal decompensation with near perforation and infection. He subsequently underwent surgical enucleation of the left eye. In his January 2005 claim, the Veteran advanced that "the loss of eyesight is from surgery performed at the" VAMC. A November 2005 written statement from the VA surgeon who operated upon the Veteran conveys that: "the fundamental cause of visual loss was unrepairable proliferative vitreoretinopathy occurring one year following cataract extraction;" "any complications that might have occurred during the course of treatment may have secondarily decreased central vision;" and "loss of vision and loss of the eye is at least as likely as not caused by or the result of the proliferative vitreoretinopathic condition of the left eye." In December 2005, the VA surgeon amended his statement, essentially offering the opinion that was unlikely that the Veteran's loss of sight was the result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment, or that the loss of sight was not reasonably foreseeable (stated as "not reasonable [sic] expected results or complication of treatment"). A June 2009 opinion from a Veterans Health Administration (VHA) expert in ophthalmology succinctly summarizes the Veteran's ophthalmological history as follows: The patient underwent uneventful cataract extraction in 2/2000 for a non-service related cataract in the left eye. In 12/2000 on follow-up examination, the patient was noted to have suffered a retinal detachment in the left eye and underwent appropriated treatment with pneumatic retinopexy and scleral buckle with gas tamponade, interspersed with application of laser retinopexy in the clinic to buttress the peripheral retinal tissue. The patient then developed proliferate vitreoretinopathy (PVR) necessitating vitrectomy surgeries with long acting silicon oil tamponade. The condition known as PVR occurs in approximately 10% of the patients that undergo retinal reattachment surgery. The exact cause of PVR is unknown but scientists are theorizing that PVR is more likely in certain genetically predisposed individuals and may represent an abnormal healing response . . . The PVR, in this patient's case, most likely lead to the onset of the phthisis in the patient's left eye. The eye then became blind and painful and required enucleation. The VHA opinion concludes that the Veteran's left eye blindness and loss "is at least likely as not caused by or the result of PVR in the left eye" and "it is also highly unlikely that any of the surgical or medical treatments performed at the VA from 2000-2001 directly caused the patient's blindness and loss of eye." A May 2012 VA evaluation opines that "there was no evidence of negligence, lack of proper skill, error in judgment, or similar instance on the part of VA in furnishing the hospital care, medical, or surgical treatment of this veteran." The March 2013 IME opinion determined that "the identified 'seepage of fluid under the retina' that occurred during the March 22, 2001 VA ocular surgical procedure was not necessarily the type of risk that a reasonable health care provider would have disclosed to the patient. The physician clarified that "it is a detailed step in the retinal detachment repair process." In a June 2013 written statement, the Veteran advanced that the seepage or hemorrhage under his retina which occurred during the March 2001 procedure ultimately resulted in the loss of his left eye. In turning to the application of 38 C.F.R. § 3.361 to the facts of the instant appeal, the Board observes that, prior to the December 2000 VA retinal reattachment surgery and multiple subsequent ocular procedures, the Veteran had left eye cataract surgical residuals with IOL. At the conclusion of VA treatment in May 2003, the Veteran exhibited an extremely painful and phthisical left eye which necessitated enucleation of the eye. Given the removal of the left eye, the Board finds that there is reasonable doubt as to whether the subsequent left eye pain constituted additional disability that was caused by the VA surgical procedures. Such additional disability was not the result of the Veteran's willful misconduct. The etiology of the Veteran's phthisical left eye and associated enucleation has been attributed to PVR. The exact cause of PVR is unknown. The Veteran has advanced that the March 2001 seepage/hemorrhage of fluid under his retina was the proximate cause of the loss of his left eye. The IME opinion established that such seepage was not "the type of risk that a reasonable health care provider would have disclosed in connection with obtaining the Veteran's informed consent." Resolving reasonable doubt on this question, the Board finds that the seepage/hemorrhage of fluid under the retina of the left eye during the March 2001 procedure constitutes an event that is not reasonably foreseeable for VA purposes. 38 C.F.R. § 3.361(d)(2). While the etiology of the Veteran's left eye phthisis is not clear, the IME opinion concluded that the seepage under the retina was a complication of the March 2001 VA ocular surgical procedure and did not exclude it as the cause of the Veteran's left eye phthisis, pain, and enucleation. The left eye pain is demonstrated to have occurred subsequent to the March 2001 VA ocular surgical procedure, and is not shown to have been a risk or complication to which the Veteran was advised or that was foreseen. While there is also competent medical evidence that shows an etiology of the Veteran's blindness that is not due to VA medical or surgical treatment, there is also evidence showing that left eye pain, which led to the eventual enucleation of the left eye that had already lost vision; such evidence raises reasonable doubt as to the actual causation of the Veteran's blindness, as the evidence shows that, regardless of the actual etiology of blindness in this case, the Veteran's left eye would have eventually been enucleated due to left eye pain associated with the 2001 procedure. Given these facts and upon resolution of reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's left eye phthisis, pain, and enucleation were the result an event not reasonably foreseeable for VA purposes. Therefore, compensation under the provisions of 38 U.S.C.A. § 1151 for left eye phthisis, pain, and enucleation is now warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for left eye phthisis, pain, and enucleation is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs