Citation Nr: 1328972 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-33 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to compensation pursuant to 38 U.S.C. § 1151 for right eye vision loss status post laser peripheral iridotomy. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active duty service from February 1952 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was afforded a February 2010 Travel Board hearing before a Veterans Law Judge (VLJ). The hearing transcript is associated with the record. The Board remanded this case for additional development in April 2010 and December 2012. During the course of this development, the VLJ who conducted the February 2010 Board hearing left the Board. The Veteran was given the opportunity to elect to appear at another hearing before another VLJ in an April 2012 letter, but did not respond. As noted in the April 2010 and December 2012 Board remands, the issue of service connection for depression secondary to blindness of the right eye has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is not shown to have any additional disability as a result of February 2002 right eye iridectomy surgery. CONCLUSION OF LAW The criteria for compensation benefits under 38 U.S.C.A. § 1151 for right eye disability have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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 38 C.F.R. § 3.159(b)(1). A July 2005 letter explained the evidence necessary to substantiate the claim and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). It does not appear that the Veteran received notice of the criteria for assigning disability ratings and effective dates in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As the instant claim is being denied, however, no disability rating or effective date will be assigned. Thus, the Veteran was not prejudiced by this omission. With regard to the duty to assist, the claims file contains VA treatment records, private treatment records, the reports of VA examinations and the assertions of the Veteran, his daughter and his representative, including the February 2010 hearing testimony. The prior remands instructed the Appeals Management Center (AMC) to obtain all available records concerning the VA laser iridotomy surgery and follow up care the Veteran received on February 6, 2002 and thereafter; to arrange for a VA medical opinion; and to obtain any available documentation related to "an FTCA lawsuit" filed by the Veteran in relation to the February 6, 2002 surgery. The Board notes that the AMC obtained all of the available pertinent VA treatment records. The AMC also determined that an FTCA lawsuit was not filed; instead, the Veteran had filed a government tort claim. Thus, the AMC appropriately obtained the available documentation pertaining to this claim. Additionally, the AMC arranged for a VA examination and medical opinion, which was provided in September 2011. The Board notes that it is not entirely clear whether a February 6, 2002 note contained in the VA medical records constitutes an actual iridotomy operative report or whether it simply represents a progress note created in conjunction with the procedure. Regardless, it is evident that the AMC found that it had obtained all the records pertaining to the surgery and there is no indication that there are any further VA records pertaining to the iridotomy surgery available. Consequently, even assuming that a separate operative report existed at some point, further development to attempt to obtain it would serve no useful purpose but to delay further the adjudication of the appellant's claim with no benefit flowing to him. Soyini v. Derwinski, 1 Vet. App. 540 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Further, as will be explained below, the September 2011 VA examiner's opinion shows that the existing available evidence (i.e. the February 6, 2002 progress note and the medical records demonstrating the Veteran's level of vision both before and after the operation were sufficient to determine the threshold question in this case: whether, the Veteran suffered any additional permanent disability as a result of the February 6, 2002 iridotomy surgery. Moreover, although the December 2012 remand instructed the AMC to make a formal finding of unavailability if it determined that any records pertaining to the surgery were not available, it is evident that the AMC concluded it had obtained all the records pertaining to the surgery. Accordingly, it was not required by the remand to make any formal finding of unavailability. In sum, the Board finds that the AMC substantially complied with all remand instructions. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Regarding the Veteran's hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2010 hearing, all parties agreed as to the issue on appeal. The parties also had a specific discussion on the evidence contained in the record and what pertinent evidence might still be outstanding. Additionally, as mentioned above, the Board's subsequent remands further instructed the RO to obtain outstanding pertinent VA medical records and other outstanding records, and to obtain a VA medical opinion/examination pertaining to the claim. There is no indication the Veteran has any additional evidence to submit or that there is any additional evidence for VA to obtain regarding the claims herein decided. Thus, the Board finds the duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claim. Overall, the Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis With respect to claims filed on or after October 1, 1997 (see VAOPGCPREC 40-97 (Dec. 31, 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. 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). To determine whether additional disability exists within the meaning of § 1151, 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 program upon which the claim is based is compared to his 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 veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish such 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 natural 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 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). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A February 6, 2002 VA ophthalmology note shows that the Veteran was undergoing a right eye iridectomy. His vision was noted to be 20/40-1 in the right eye with pinhole testing showed no temporal improvement. A February 24, 2002 VA emergency room note shows that the Veteran was noted to be two weeks status post glaucoma surgery. He reported that he had been doing well until two days previously when he experienced acute blurring with pain in the back of the eye. He reported that he had taken pilocarpine and over the past 24 hours his pain had resolved with return of vision to pre-event but he wanted to be evaluated. It was also noted that the Veteran was legally blind in his left eye. Physical examination showed slight erythema around the eye. The diagnostic impression was recent laser surgery with complaints of blurred vision and pain now resolving. Given the improvement, the examining medical professional doubted severe eye pathology. In a January 2004 government tort claim, the Veteran asserted that the "young trainee" who performed the February 2002 surgery did not seem to know how to operate the laser machinery employed. He noted that the young man administered some shots that were very painful and that the attending physician harshly "corrected him." He reported that neither individual told him their names and he did not know who they were. He indicated that after the surgery he was completely blind and that he stayed that way for several days. He noted that he was told that he would be able to see again in a few days but asserted that two years had passed and he had only recovered about 20 percent of his vision. He also asserted that his right eye vision was good enough before the procedure that he could drive an automobile anywhere he wanted to go but that after the procedure he was unable to drive. The Veteran reported that after the surgery he continued to attend the VA clinic weekly and the doctors assured him that his full sight would return. Finally, out of desperation, he contacted Dr. Lynch from the VA clinic and she set up an appointment for him in May 2002. He indicated that he worked with Dr. Lynch until October 2002 at which point she informed him that there was no hope of recovering his sight. Private ophthalmology treatment notes from Dr. Lester from July 2003 to January 2004 show ongoing treatment for vision problems. In July 2003, the Veteran complained of very bad vision, worse in the left eye, secondary to suffering from glaucoma for the past 10 to 12 years. He noted that in February 2002, he had had laser surgery in the right eye and "went blind from the laser." He complained of bright light glare for which glasses were not helpful. In September 2003, he was diagnosed with nuclear sclerosis miosis and a left eye complex cataract (pupil stretchers) procedure was performed. Also, in September 2003, he apparently underwent a right eye paracentesis procedure. In October 2003, he reported that his visual acuity was pretty good in the morning but was still fuzzy. In November 2003, he reported that his visual acuity was poor in the left eye. In December 2003, the Veteran indicated that his vision was not good in the left eye but that his right eye seemed o.k. He noted that he could not drive but could see a short distance. In January 2004, a diagnosis of glaucoma of both eyes was noted and the Veteran was found to have massive visual field loss. In a June 2005 letter, the Veteran's daughter indicated that before February 6, 2002, the Veteran was able to see well. He was able to drive his car and perform his daily life in an independent manner. Several weeks before the laser surgery he had driven 560 miles round trip to South Carolina to visit his grandchildren. The daughter asserted that the Veteran was "blinded" by the February 2002 surgery. He was then initially told he would regain his sight but after many visits to the VA clinic, he was informed in October 2002 that no treatment would help and he should go to school for the blind. In a July 2005 statement, the Veteran indicated that the student who performed the February 2002 laser surgery did not appear ready for the procedure and was very unsteady. In an August 2006 statement, the Veteran asserted that the young student who performed his 2002 VA iridectomy was not familiar with the laser machine used to perform the surgery. He also indicated that Dr. Lester subsequently did the best he could to try and improve the Veteran's sight but in the end could only tell him that "you will be blind the rest of your life." On his October 2008 Form 9, the Veteran reported that on February 6, 2002, the doctor and medical student performed his laser surgery on his right eye from two different machines. He noted that on February 23, 2002, the eye became very inflamed and sore. He called the VA and then reported to the emergency room on February 24, 2002. He indicated that he was seen by a physician who did not know how to treat his eye and was advised to come back the next day. He asserted that following the February 6, 2002 surgery, his right eyesight had not returned to its pre-surgery level and that VA performed the surgery on the right eye improperly using an untested new laser device operated by a medical student under the direction of an eye clinic physician. In a March 2009 statement, the Veteran reported that his vision was doing fine for several years with the simple application of eye drops to keep his intraocular pressure down. However, he was informed in 2002 that he should have the laser surgery to keep a tube open, which in turn would help keep down the pressure. He indicated that he was not told that an inexperienced young man would perform the procedure. Also, the physician in charge of the operation informed him that they would be trying out a new type of machine on him. The Veteran indicated that at the time he "felt sure that this was the right thing to do." However, he asserted that the student shot the laser into his eye several times and that at one point, the laser hit a nerve and caused him to jump out of his chair. The Veteran reported that the physician in charge was furious with the student and shouted for him to stop. The Veteran noted that this happened several times, at which point the doctor stopped the operation entirely. The Veteran indicated that at that point, he was not able to see anything and was ready to leave the operating room. He reported that he remained completely blind when he left the VA and that he did not see any light for three days. Gradually, on the fourth day, he saw some tiny rays of light, which continued for a few days until he got back about 20 percent of his original sight. He noted that eventually, the pressure in his eye came down but reported that he never regained the level of sight he had had before the surgery. He also noted that he was never able to drive again. The Veteran indicated that after the treatment arranged by Dr. Lynch was not successful in improving his eyesight, he sought assistance from Dr. Lester, who was able to bring back some of his eyesight so that he could see enough to read and write. In a March 2009 statement, the Veteran's daughter contended that it was clear from the Veteran's March 2009 statement and the medical records from Dr. Lester, that the February 2002 VA surgery resulted in the Veteran's rapidly failing eyesight. At a May 2009 VA eye examination, the Veteran described having what at the time was an experimental laser procedure in the right eye in February 2002. He noted that the student performed the actual laser surgery while an attending physician supervised and that after he experienced sharp, stabbing pain from a laser incision, which made him 'jump out of his chair', the attending began shouting at the student. The Veteran again noted that his vision subsequently returned only to 20 percent of his prior visual acuity. He denied any recent change in his visual acuity or recent loss of visual field. He denied any recent episodes of eye pain, swelling or redness. The examining physician noted that the Veteran's history was significant for mixed mechanism glaucoma in both eyes. He had a component of open angle glaucoma and narrow angle glaucoma; was status post trabulectomy in the left eye; was status post argon laser trabeculoplasty in both eyes and was status post argon/YAG laser peripheral iridotomy in the right eye. He was also pseudophakic in both eyes. Visual examination showed that visual acuity without correction at distance was 20/80+2 in the right eye/pinholing with no improvement and hand motion in the left eye. Visual acuity at near without correction was worse than J16 in the right eye/pinholing with no improvement and hand motion in the left eye. Visual acuity at near with correction was J16 in the right eye and hand motion in the left eye. The pupil was 5mm and surgically irregular with poor reaction to light in both eyes. Afferent papillary defect could not be assessed due to poor reaction of the pupils in both eyes. Tonometry by applanation at 11 oclock was 13 in both eyes. Confrontation visual fields were constricted 360 degrees in both eyes. The anterior chamber was mildly shallow in both eyes. The iris in the right eye showed superonasal peripheral iridotomy, which was patent to transillumination. The Veteran had a posterior chamber intraocular lens implant in both eyes. His vitreous was clear in both eyes and his dilated fundus examination showed a cup to disk ratio of .95 in both eyes with inferior rim notching in both eyes. His macula was flat and dry in both eyes and his periphery was a flat 360 degrees in both eyes. The diagnostic assessments were mixed mechanism glaucoma and pseudophakia. The examiner noted that the Veteran was diagnosed with open angle glaucoma in the 1990s but there also appeared to be a component of narrow angle glaucoma. The Veteran had advanced glaucomatous optic neuropathy in both eyes. The Goldman visual field testing had shown an inferotemporal island of vision in the right eye with field loss cutting through the center of vision, which explained his poor visual acuity. Intraocular pressures were currently well controlled on maximum medical therapy. The examiner noted that a claims file review showed that the Veteran had had a laser peripheral iridotomy using argon laser in conjunction with YAG laser. The February 6, 2002 progress note indicated that the Veteran did have the procedure and that his postoperative intraocular pressure did not spike significantly. Preoperative pressure was 21 and postoperative pressure was 22. There was no indication within the note that there was any complication or difficulty with the examination. However, because the procedure note was not included in the claims file, there were inadequate records and therefore, the examiner felt that there was inadequate evidence to appropriately assess the course of events that occurred after the laser peripheral iridotomy. The examiner concluded that any opinion he would render would be pure speculation because it was not clear from the record what happened in the week following the procedure. What the examiner could say is that the Veteran appeared to have relatively advanced glaucoma in the right eye at the time of the procedure and that pressure spikes and vision loss were known complications of laser peripheral iridotomy. The examiner commented that the Veteran should have been properly consented prior to having the February 2002 procedure performed. At the February 2010 Board hearing, the Veteran testified that about a week prior to the February 2002 procedure, he was able to drive to his daughter's home, about 250 miles away from his home, without any visual problems. The Veteran also reported that after the surgery Dr. Lynch began meeting him regularly for 10 or 12 Saturdays in a row to try and help him regain his sight but in October 2002, she informed him that he would not be able to regain it. The Veteran's daughter testified that there was no doubt in her mind that something went wrong during the surgery as afterwards he was no longer able to participate in activities such as fishing and driving. She also asserted that if he had been properly informed that permanent damage could result from the surgery, he would not have proceeded. The Veteran also indicated that during the surgery, when the attending physician turned over the experimental machine to the student under his supervision, the Veteran was confident that everything had been planned out so that nothing would go wrong. However, the laser surgery performed by the student was so painful that he shook all over and was finally just ready to leave the clinic. The Veteran also testified that he had had many bad experiences as a result of his poor vision including falling down the stairs, not being able to see his food and knocking over glasses. At a September 2011 VA examination, the examiner noted that the Veteran was diagnosed with probable glaucoma in both eyes during an eye examination on August 14, 1986. At that time, his vision was 20/20 in both eyes and his cup to disc ratio was .5 in the right eye and .7 in the left eye. At that time, he also had full visual fields. He was started on Timpoptic in both eyes for suspicion of open angle glaucoma. There were no additional eye examination notes until April 1992 where it was documented that his cup to disc ration was .9 in the right eye and .95 in the left eye. By August 26, 1992, he had developed a superior arcuate defect in the right eye and 20/25 vision in the left eye. By July 1993, he had shown glaucomatous progression in the right eye and had both a superior and inferior arcuate defect on visual field testing. Over the next two years, he underwent argon laser trabulectomy surgery in the left eye. His intraocular pressure remained relatively well-controlled in the left eye after this incision surgery but he had already developed severe visual field loss. By September 1997, he had significant superior visual field depression in the right eye on Goldman visual field testing. The Veteran first presented to the Atlanta VA Medical Center eye clinic on January 18, 2002. At that visit, his visual acuity in the right eye was 20/40 and "counting fingers" in the left eye. His intraocular pressures were 26mmHg right eye and 25mmHg left eye. On gonioscopy, he had a narrow inlet in the right eye and only the sclera spur was visible. It was recommended that he undergo a laser iridotomy in the right eye. He underwent an uncomplicated laser iridotomy procedure in the right eye on February 6, 2002 and his post-procedure intraocular pressure was 22mmHg. He was started on topical PredForte after this procedure. He followed up one week later with vision of 20/60 and intraocular pressure of 20mmHG in the right eye. His PredForte was tapered. He was not seen again until he went to the ER on February 24, 2002 complaining of decreased vision in the right eye. He had follow-up in the eye clinic on February 25, 2002 and had a visual acuity of 20/200 and intraocular pressure of 38 mmHg. This was treated with topical glaucoma drops and oral Diamox and his intraocular pressure came down to 28. He was felt to have rebound inflammation and was re-started on topical PredForte and multiple glaucoma agents. There was documentation that he was unable to come back for follow up appointments until March 2, 2002, although 'several attempts to call (him) during this time were unsuccessful.' On his visit on March 2, 2002, his visual acuity was 20/70 and his intraocular pressure was 20 mmHg in the right eye. He then had 7 follow-up visits in the eye clinic between March and October 2002 and his visual acuity baseline appeared to be around 20/70 in the right eye with intraocular pressure in the mid teens. On March 14, 2002, his Humphrey visual field showed less than 10 degrees of central vision in his better seeing right eye. He was then lost to follow-up at the Atlanta VA eye clinic until December 28, 2005. There were notes that he was treated by Dr. Lester during this period. On postoperative day 1 after cataract surgery in September 2003 from Dr. Lester, his intraocular pressure in the right eye appeared to have been 50 to 54. He was restarted on multiple glaucoma agents and his intraocular pressure at his other follow-up visit was in the mid teens. Approximately one month after his cataract surgery his best corrected visual acuity was 20/40 in the right eye but this fluctuated on several visits between 20/40 and 20/80. Between 2005 and 2011, he had numerous follow-up visits with the Atlanta VA Medical Center eye clinic but had not undergone any additional procedures. His visual acuity had typically stayed in the 20/200 range in the right eye and counting fingers to hand motions in the left eye. After reviewing all the findings in the claims file, it was the examiner's impression that the Veteran had shown progressive decline in both eyes over the past 25 years due to glaucoma. He did undergo an uncomplicated laser iridotomy procedure on February 6, 2002 and had rebound inflammation and raised intraocular pressure a few weeks after this procedure. This was treated successfully with glaucoma medication. The examiner did not believe that the short term spike in intraocular pressure caused the Veteran to go blind in the right eye. Instead, the examiner opined that the blindness had been the result of his progressive glaucoma. The examiner did not believe that the Veteran's blindness in the right eye occurred because of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA in furnishing the laser treatment. Additionally, the examiner did not believe that the blindness occurred from an event not reasonably foreseeable. In January 2012 argument, the Veteran's representative noted that the September 2011 VA examiner was an ophthalmology resident and that the prior April 2010 remand had requested that the Veteran be examined by an "appropriately qualified physician." The representative also contended that the examiner failed to provide an appropriate rationale for his opinion. The evidence does not establish that the Veteran experienced any chronic or permanent disability, including loss of vision, as a result of the February 6, 2002 iridotomy surgery. In this regard, the September 2011 VA examiner, after a detailed review of the record, specifically attributed the Veteran's right eye visual loss (i.e. blindness) to his progressive glaucoma and not to the iridotomy surgery. In this regard, the VA examiner specifically opined that the blindness was not caused by the short term spike in intraocular pressure resulting from the February 6, 2002 surgery. Despite the contention of the Veteran's representative, this opinion is supported by an adequate rationale as the examiner based his conclusion on an analysis and comparison of the visual acuity findings pertaining to the Veteran both before and after the operation. Additionally, as the examiner was an ophthalmology resident, the Board considers him to have been an "appropriately qualified physician" within the meaning of its remand instructions as residents are generally considered to be physicians and as ophthalmology is the appropriate specialty for evaluation of the disability in this case. There is no medical evidence contrary to the findings of the September 2011 VA examiner. Notably, the May 2009 VA examiner did find that any opinion he would render would be pure speculation, noting that because an actual procedure report was not of record, it was not clear from the record what happened in the week following the procedure. While this conclusion does not support or weigh against a finding that the Veteran developed additional disability as a result of the February 6, 2002 surgery, it does raise the question as to whether the record was sufficiently complete for an opinion concerning additional disability to be rendered. However, unlike the September 2011 VA examiner, the May 2009 physician did not have access to medical records subsequently added to the claims file pertaining to the period soon after the surgery. With access to this information, the September 2011 VA examiner was able to render an uncontradicted medical opinion that the Veteran's vision loss was due to the progressive glaucoma rather than the surgery. As the examiner was comfortable providing this opinion in the absence of a formal narrative report describing the February 6, 2002 procedure (as opposed to the February 6, 2002 progress note mentioned above); as there is no indication that such a formal narrative report is available; and as the examiner's opinion was supported by a specific, reasoned rationale, the Board attaches significant probative value to it. The Veteran and his daughter have affirmatively contended that the Veteran's vision loss in the right eye did result from the February 6, 2002 surgery. While both individuals are competent to report their observations concerning the Veteran's vision loss over time, their competence in determining the cause of that vision loss is limited in comparison to an ophthalmology resident's specific expertise concerning the nature of vision loss. Consequently, the Board places more evidentiary weight on the ophthalmologist's finding that the vision loss resulted from the progressive glaucoma and not from the surgery than on these lay observations. The Board is cognizant of the Veteran's report that he was unable to drive again after undergoing the surgery and the Veteran's daughter's report that he was unable to drive or fish again after the surgery. The Board does find these reports probative to the question of whether the Veteran suffered additional disability as a result of the surgery. However, given the specific finding of the September 2011 VA examiner and his greater expertise in determining the etiology of vision loss, the Board finds that the evidence weighs in favor of a finding that this vision loss resulted from the underlying progressive glaucoma rather than the February 6, 2002 surgery. The Board also notes that both the Veteran and his daughter have raised arguments concerning whether he was actually given the opportunity to provide informed consent to the February 6, 2002 surgery. In cases where additional disability did result from VA medical care, lack of informed consent, if actually present, does form a basis for a finding that carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in performing surgery resulted in such additional disability. 38 C.F.R. § 3.361. However, as explained above, the weight of the evidence is against a finding that any additional disability actually resulted from the iridotomy surgery performed on the Veteran. Thus, the Board need not make a finding as to whether proper informed consent was obtained in this case. In sum, because the weight of the evidence is against a finding that the Veteran experienced any additional disability of the right eye, including vision loss, as a result of the February 6, 2002 iridotomy surgery, the preponderance of the evidence is against the claim and it must be denied. Gilbert, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for right eye vision loss status post laser peripheral iridotomy is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs