Citation Nr: 1334442 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-07 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left eye caused by VA surgeries on November 20, 2008 and December 8, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1953 to February 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this case in December 2012 and June 2013 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration. In July 2012, the Veteran presented testimony at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated in 2012 and 2013. However, these records do not impact the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran may have a raised a separate claim for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left eye caused by a third VA surgery in March 2009. See Veteran's February 2012 statement; November 2011 VA Form 9; May 2013 Informal Hearing Presentation. However, neither the Veteran nor his representative discussed the March 2009 surgery. That is, the issue of entitlement to section 1151 benefits due to a third left eye surgery in March 2009 has not been adjudicated or developed by the RO, and it is unclear from the record whether the Veteran is even raising the issue. At the July 2012 hearing and in most of his statements, the Veteran only described VA negligence at the initial November 2008 and December 2008 left eye surgeries, without offering any specific testimony or indication as to how the third March 2009 VA surgery was performed by VA in a negligent manner. Therefore, the Board does not have jurisdiction over this potential issue, and it is referred to the RO for appropriate action - that is, the RO should ask the Veteran to clarify whether he is seeking another § 1151 claim based on the March 2009 VA surgery of the left eye, and if so, on what basis. FINDINGS OF FACT 1. Although VA surgeries performed on November 20, 2008 and December 8, 2008 caused additional disability to the Veteran's left eye, the proximate cause of the additional disability was not the result of either VA carelessness or negligence, or an event that was not reasonably foreseeable. 2. The Veteran provided his express, informed, and written consent to what a "reasonable health care provider" would have considered to be ordinary risks of treatment, prior to the November 20, 2008 and December 8, 2008 VA surgeries. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left eye caused by VA surgeries on November 20, 2008 and December 8, 2008 have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist For the § 1151 issue, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran dated in February 2009, January 2013, and July 2013. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his § 1151 claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, a February 2009 VCAA letter advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With regard to the timing of VCAA notice, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice in February 2009 prior to the June 2009 rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, VA treatment records, private medical evidence as identified by the Veteran, and several VA opinions. For his part, the Veteran has submitted personal statements, hearing testimony, argument from his representative, private medical evidence, a medical pamphlet, and an undated VA medical note from Dr. D.H., MD., received in February 2012. VA medical opinions and a VA eye examination were also obtained in May 2009, April 2013, and August 2013 in connection with the claim for compensation under 38 U.S.C.A. § 1151. In this regard, the Court recently held that VA's duty to provide a medical examination and/or medical opinion under 38 U.S.C.A. § 5103A(d) also applies to compensation claims under 38 U.S.C.A. § 1151. Trafter v. Shinseki, 26 Vet. App. 267, 278-80 (2013). That is, in the context of § 1151 claims, the Court held that the "may be associated" language required that the evidence of record indicate a causal connection between the current disability and the VA treatment, before VA was required to provide a medical examination or opinion. Id. The Board emphasizes that the threshold for making this determination is a "low" one. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the present case, several VA medical opinions for the § 1151 issue on appeal were secured in light of this duty. When considered together, the Board finds that the VA medical examination and opinions are adequate, as they were predicated on a physical examination and a full reading of the claims file, including the Veteran's own allegations. As discussed below, the VA examiner provided a rationale for the opinions stated, relying on and citing to the records reviewed. With regard to the July 2012 travel board hearing for the § 1151 claim, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012). At the travel board hearing, the Veterans Law Judge, the Veteran, and the representative outlined the § 1151 issue on appeal and engaged in a discussion as to substantiation of that claim. The elements of additional disability, causation, negligence, foreseeability, and informed consent for purposes of § 1151 entitlement were discussed by the parties at that hearing. Potential favorable outstanding medical evidence was discussed, and the Veteran was given additional time after the hearing to submit such evidence. See hearing testimony at pages 2-3, 12, 16. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. Overall, the hearing was legally sufficient, and there has been no allegation to the contrary. Moreover, the Veteran and his representative have not requested another hearing. With regard to the previous December 2012 and June 2013 Board remands, the Board finds that the RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the Board remands, the RO sent the Veteran medical authorization forms to secure potential private medical evidence; secured additional VA treatment records; secured copies of VA's informed consent forms for the November 2008 and December 2008 left eye surgeries; and obtained several VA opinions and a VA examination for the § 1151 issue on appeal. As such, the RO has substantially complied with the Board's instructions. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his § 1151 claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of the § 1151 appeal. Governing Law and Regulations for Section 1151 Claim Section 1151 compensation is awarded for qualifying additional disability in the same manner as if such additional disability were service-connected. The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment, VA surgery, or vocational rehabilitation. 38 U.S.C.A. § 1151(a) (West 2002 and Supp. 2013). For purposes of establishing entitlement to section 1151 benefits, a disability or death is a qualifying additional disability or qualifying death if the disability or death: (1) was not the result of the Veteran's willful misconduct; and (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death 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(a); 38 C.F.R. § 3.361(a)-(d). First, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). VA considers each body part or system separately. The additional disability must not be the result of the Veteran's willful misconduct. 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA. 38 C.F.R. § 3.361(c). 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). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1). 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). Third, with regard to causation, the proximate cause of the disability, as opposed to a remote contributing cause, must be 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 that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). With regard to carelessness or negligence, 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 was the proximate cause of a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1). Minor deviations from those requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Id. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Id. With regard to reasonable foreseeability, whether the proximate cause of a Veteran's additional disability or death 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. See 38 C.F.R. § 3.361(d)(2). But if the Board makes an initial determination that any additional disability was not caused by VA, the Board is not required to make a finding as to whether the event in question was reasonably foreseeable. See 38 C.F.R. § 3.361(c); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005). Thus, section 1151 contains two causation elements - a Veteran's disability must not only be "caused by" the hospital care or medical treatment he received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." See 38 U.S.C.A. § 1151(a)(1). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment the expected benefits, reasonably foreseeable associated risks, complications, or side effects, reasonable and available alternatives, and anticipated results if nothing is done. See 38 C.F.R. § 17.32(c). Under 38 C.F.R. § 17.32(d), the informed consent process must be appropriately documented in the medical record. In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that require the use of sedation, anesthesia or narcotic analgesia; are considered to produce significant discomfort to the patient; have a significant risk of complication or morbidity; or require injections of any substance into a joint space or body cavity. Id. In determining whether § 1151 compensation is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Section 1151 Claim The Veteran contends that he sustained additional disability to the left eye as the result of VA surgeries to remove cataracts on November 20, 2008 and December 8, 2008. He has also stated that he had three surgeries in one day, although no evidence of record supports this. These surgeries were performed at the VA Medical Center (VAMC) in Durham, North Carolina. He asserts that inadequately prepared "trainees" who were "unorganized and unprofessional" performed the surgeries. He indicates that after the VA surgeries, his vision worsened, his pain and discomfort increased, and he was nearly blind in the left eye. In essence, he believes his left eye condition permanently worsened after both VA surgeries. He states that VA physicians were negligent in the manner in which they performed his left eye surgeries. He says he had to undergo additional left eye surgeries with a private eye specialist in May 2010, January 2012, and August 2012 to help correct the damage VA doctors caused to his left eye. See January 2009 claim; February 2009, March 2009, November 2009, December 2011, February 2012, and July 2013 Veteran's statements; February 2010, November 2011, and December 2011 VA Form 9s. The Veteran also argues that he did not provide written consent for either of the VA surgeries. See hearing testimony at page 12. An abbreviated history of VA and private treatment for the Veteran's left eye is as follows: An August 2003 VA eye consult revealed "beginning cataracts." On November 20, 2008, the Veteran underwent VA cataract surgery with insertion of an intralocular lens for the left eye. The purpose of the surgery was to correct a cataract (clouding of the lens of the left eye). He signed an informed consent form for this surgery on November 7, 2008. A November 24, 2008 VA pre-op note indicated that further surgery was needed status post "complicated" cataract extraction of the left eye. The Veteran had a retained lens fragment, inflammation, and elevated intraocular pressure in the left eye. On December 8, 2008, the Veteran underwent VA pars plana vitrectomy surgery for the left eye. The purpose of the surgery was to correct disorders of the back part of the left eye, including problems with the retina. Removal of lens material from the left eye was necessary. He signed an informed consent form for this surgery on November 24, 2008. Several December 2008 VA ER notes reflected persistent pain of the left eye with purulent drainage from the left eye for two days with decreased vision and blurriness. His left eyelid does not open all the way. A January 29, 2009 VA ER note documented the Veteran's complaint that he feels like he has "splinters" in the left eye. A February 12, 2009 VA eye report remarked that since his cataract surgery, the Veteran has had a large corneal abrasion, which is healing "very slowly." He has great pain with blurry vision. On March 5, 2009, the Veteran underwent VA Ahmed shunt surgery. Poor clarity persisted after the surgery. A June 15, 2009 VA optometry consult assessed that the Veteran has had multiple problems with his left eye since his surgeries. His left eye has watering and burning. His best distant visual acuity was 20/400 for the left eye. Other June 2009 VA treatment records documented a left eye infection, being treated with Cipro. Several July 2009 VA ophthalmology consults noted that the Veteran "hasn't seen well since" his surgeries and has recently gotten worse with "double vision with gaze to L." He also has pain behind the left eye. His vision loss was recorded as "severe." He was unable to see the eye chart. He experienced a severe IOP elevation and has been using glaucoma medication. He also has severe cornea opacification. His current visual acuity is barely light perception. The Veteran stated that VA "messed up my L eye." A September 24, 2009 VA eye report remarked that the results of the Veteran's earlier VA cataract surgery were "poor" and that he has been treated for glaucoma since. A November 18, 2009 VA ER note documented the Veteran's complaint that he is "going blind." A November 20, 2009 VA eye report discussed the Veteran's complaints of severe pain in and around the left eye, due to cataract surgery with a poor outcome. He now has severe vision loss and elevated IOP. His best distant visual acuity was 20/bare light perception for the left eye. A November 27, 2009 VA ophthalmology note commented that the left eye discomfort was better, but there was still poor vision. It was recommended that the Veteran visit a corneal specialist. A November 2009 VA request for an eye consult from a VA doctor, Dr. D.H., MD., noted the "poor outcome" from surgery with severe vision loss and severe IOP elevation and severe cornea opacification with current visual acuity of bare light perception. The Veteran complained of a recent onset of severe pain, such that Dr. D.H. referred the Veteran for a private consult to preserve or improve the eye due to possible loss. A December 2011 VA ER note reflected the Veteran's statements that he is still losing his vision and going blind due to VA surgery in 2008 by a trainee. VA referred the Veteran for private treatment with Dr. S.H.B., a private vision specialist. Private treatment records from Dr. S.H.B. dated from 2010 to 2012 revealed further corrective left eye surgeries in May 2010, January 2012, and August 2012, including corneal transplants. It appears from these private treatment records there was some degree of improvement for the left eye over time, but not immediately. A February 2010 report from Dr. S.H.B. noted the Veteran's assertion that all his VA surgery was done in one day. A March 2010 report from Dr. S.H.B. remarked "it was hard to know for certain the cause" of corneal swelling in the Veteran's left eye. Dr. S.H.B explained that "any time you have intraocular surgery, it can happen." Reports dated in 2011 indicated that the Veteran's vision had deceased due to glaucoma damage and graft rejection. None of Dr. S.H.B.'s treatment reports assessed any negligence on the part of VA during its 2008 surgeries. Upon review of the above evidence of record, including VA medical opinions, VA and private treatment reports, and hearing testimony and lay assertions, the Veteran's claim for §1151 compensation is denied. 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.361(a)-(d). At the outset, the evidence establishes that VA surgeries for the left eye on November 20, 2008 and December 8, 2008 did in fact cause additional disability to the Veteran's left eye. See 38 C.F.R. § 3.361(b) and (c). This is shown by comparing the Veteran's condition before and after the VA cataract surgeries in question. Subsequent to the November 2008 and December 2008 VA surgeries, VA and private treatment records dated from 2008 to 2012 frequently document signs and symptoms of additional disability to the left eye resulting from VA surgeries. Specifically, additional disability in the left eye was observed by signs and symptoms such as decreased vision, blurriness, pain, swelling, redness, retained lens fragment, inflammation, elevated intraocular pressure, severe cornea opacification, and the development of glaucoma. Moreover, the same VA ophthalmologist in May 2009, April 2013, and August 2013 medical examinations and opinions assessed that VA's left eye surgeries in 2008 were complicated with posterior capsular rent, vitreous loss, and retained lens fragments. It was noted the Veteran had difficulty coming to post-operation visits due to a transportation issue. The Veteran developed inflammation, hemorrhagic choroidals, corneal decompensation, and glaucoma in his left eye, subsequent to his VA surgeries. The VA ophthalmologist opined that the Veteran's poor vision after the VA surgeries was due to complications related to the surgeries. The VA ophthalmologist added that it is "as least as likely as not" that severe loss of vision, loss of field of vision, and optic atrophy secondary to glaucoma, resulted from the November 2008 left eye surgery. In addition, another VA ophthalmologist, Dr. D.H., opined in a November 2009 VA treatment letter that the Veteran had a "poor outcome with severe vision loss" after the VA cataract surgeries. The Veteran has also submitted a medical pamphlet in February 2010 indicating that cataract surgery may cause corneal failure necessitating a corneal transplant - similar to the Veteran's particular situation. Thus, the Board does not dispute that the § 1151 criteria of additional disability and causation are met here. See again 38 C.F.R. § 3.361(b) and (c). This does not, however, ends the Board's inquiry. The remaining question in the present case is whether the proximate cause of additional disability to the left eye is either 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the left eye surgeries; or 2) an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). With regard to the issue of carelessness / negligence at the November 20, 2008 and December 8, 2008 VA surgeries, VA treatment records, VA clinician opinions, and private medical evidence of record do not establish that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. See 38 C.F.R. § 3.361(d)(1)(i). In fact, in May 2009, April 2013, and August 2013 VA medical opinions, a VA ophthalmologist, after reviewing and discussing the evidence of record, opined that he did not find any elements of carelessness, negligence, error, or lack of proper skill involved at the VA eye surgeries. The VA ophthalmologist assessed that the Veteran's lay assertion of having had three surgeries on the same day is not supported by the record. As to the Veteran's lay assertion that the doctor treating him was "too young to be doctor," and his VA surgery was performed by "a trainee," the VA ophthalmologist emphasized that all the eye surgeries at the Durham VAMC were completed by "a team of ophthalmology residents and attendings." The VA ophthalmologist added that he found no evidence that VA physicians "failed to exercise the degree of care that would be expected of a reasonable health care provider as evidenced by all the progress notes documentation following his eye surgery." The Board adds that any assertion that the surgery on the left eye was performed by a VA ophthalmology surgery resident, who may have had less experience, is not strong evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, as attending ophthalmology physicians were also present. Overall, the above VA opinions were thorough, supported by an explanation, based on a review of the claims folder, to include the Veteran's lay assertions, and supported by the medical evidence of record that failed to reveal negligence or failure to exercise the appropriate degree of care during the VA surgeries in November 2008 and December 2008. These VA opinions provide strong evidence against the claim. With regard to the issue of carelessness / negligence, the Board acknowledges the Veteran's lay assertions that the Veteran was told by another VA ophthalmologist, Dr. D.H., to file a § 1151 claim with the VA due to negligence. He says Dr. D.H. drew him a picture of his left eye revealing deep scars, and that other VA surgeons "have completely ruined my eye" and "took out quite a chuck [sic] of your eye." The Veteran also recites he was told by a VA physician who performed the surgery that he made a mistake and he infiltrated the left eye too deeply. He says a female VA physician at the time the initial November 2008 surgery was performed stated "this will never do." He also adds that his private eye doctor, Dr. S.H.M., told him that VA had made mistakes with their surgery. The undersigned Veterans Law Judge advised the Veteran to submit a letter to this effect from his private doctor, Dr. S.H.M., but the record is negative for the Veteran submitting any such letter. See November 2011 and December 2011 VA Form 9's; December 2011 representative statement; July 2013 VA Form 21-4142; December 2009 Veteran's statement; hearing testimony at pages 5, 8-10, 13-16. In any event, the Veteran is competent to report what VA and private physicians allegedly stated to him regarding VA negligence, even though he has not submitted the specific evidence. Indeed, lay testimony regarding what a medical professional tells a lay person is specifically listed as one of the examples given as competent lay testimony. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regardless, none of Dr. S.H.B.'s private treatment reports dated from 2010 to 2012 discuss any negligence on the part of VA during its 2008 surgeries. In fact, a March 2010 report from Dr. S.H.B. remarked "it was hard to know for certain the cause" of corneal swelling in the Veteran's left eye. Dr. S.H.B explained that "any time you have intraocular surgery, it can happen." The absence of any notation of VA negligence in these private treatment records by Dr. S.H.B. weighs against the Veteran's lay assertions to the contrary. The Veteran has, however, submitted an undated VA medical note from another VA ophthalmologist, Dr. D.H., received in February 2012. In this medical note, Dr. D.H. advised the Veteran to file a § 1151 claim regarding the "poor outcome" of the left eye surgery performed at the VAMC in Durham. Dr. D.H. added that an investigation must be completed by a facility other than Beckley, West Virginia. Although it is confirmed Dr. D.H. advised the Veteran to file a § 1151 claim, and the Veteran also states that Dr. D.H. told him the VA doctors who performed the surgeries were negligent, the VA and private medical records and opinions discussed above are more detailed and probative than the records the Veteran has submitted, as they are based on a review of the claims file, including the Veteran's statements, as well as on the clinicians' medical expertise. They are also supported by an adequate written rationale. On the other hand, the Veteran's recitation of what VA and private doctors have told him does not explicitly reveal the basis or rationale for such opinions. Overall, the preponderance of the competent, credible, and more probative evidence of record does not establish that VA eye surgeons in November 2008 and December 2008 failed to exercise the degree of care that would be expected of a reasonable health care provider. With regard to the issue of carelessness / negligence, the Veteran also contends that he never provided written consent for either of the VA surgeries. See hearing testimony at page 12. A review of the record reveals that the Veteran's assertions are incorrect. To that end, what is clear from the record is that VA health care providers complied with the informed consent requirements of 38 C.F.R. § 17.32, prior to the November 2008 and December 2008 VA eye surgeries. See 38 C.F.R. § 3.361(d)(1)(ii). The Veteran signed written informed consent forms on November 7, 2008 and November 24, 2008, prior to both surgeries. The written consent forms detailed the expected benefits, reasonably foreseeable associated risks, complications, or side effects, reasonable and available alternatives, and anticipated results if nothing is done. 38 C.F.R. § 17.32(c) and (d). Thus, there is no probative support for the Veteran's assertion that VA's health care providers furnished the surgical treatment without the Veteran's informed consent. On the issue informed consent, the Board is aware of the Court's recent holding that the presumption of regularity may not be used to conclude that a physician has fully informed a Veteran about a particular consequence of a particular medical procedure where the only evidence supporting the presumption is a generic consent form that was filled out properly. McNair v. Shinseki, 25 Vet. App. 98, 104-107 (2011). However, a physician's failure to advise a Veteran of a foreseeable risk may be considered "a minor, immaterial deviation" if it is determined that "a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." Id. However, unlike the facts of McNair, the facts of the instant case show that the informed consent forms were detailed and specific, as opposed to generic, for the VA eye surgeries performed. They contained more detail than a standard generic form. Specifically, the informed consent forms discussed the reasons for the eye procedures, what the specific procedures involved, the expected benefits of the procedure, the alternatives to treatment, and the known risks of the treatment. As to known risks, the consent forms listed known risks that the Veteran ended up actually experiencing post-surgery such as pain, irritation, retinal detachment, dislocation of lens, glaucoma development, infection, red or painful eyes, irregular pupil, loss of depth perception, double vision, blurry vision, choroidal effusion, corneal edema, the need for additional surgery or therapy, loss of corneal clarity, failure to heal properly, and iris atrophy. In summary, in the instant case, for both VA eye surgeries, the Veteran provided VA with express, informed consent. Thus, negligence cannot be established on the Veteran's unsubstantiated allegation of a lack of informed consent. See 38 C.F.R. §§ 3.361(d)(1)(ii), 17.32. With regard to the issue of reasonable foreseeability, it is not shown that the proximate cause of the Veteran's additional left eye disability was an event "not reasonably foreseeable." See 38 C.F.R. § 3.361(d)(2). That is, the Veteran's complications from his VA eye surgeries were foreseeable ones. Specifically, in an August 2013 VA medical opinion, a VA ophthalmologist opined that as to foreseeability, the complications the Veteran encountered are "well-known risks of cataract surgery." The VA ophthalmologist commented that "[t]he rate of capsular tear can be up to 14.7%, vitreous loss about 5%, retained lens fragments 0.3 to 1.1%, and retinal detachment 1%." The VA ophthalmologist added that "each complication mentioned in the proceeding sentence increased the rate of the next complication." For example, retinal detachment occurs in 6.8 to 8.6% following Intraocular vitreous loss, and the rate increases to 14.5% when lens fragments are retained. The VA ophthalmologist also noted that "[t]hese complications and/or treatment for them can lead to glaucoma." This well-reasoned VA opinion provides strong evidence against the theory that the proximate cause of the Veteran's additional left eye disability was an event "not reasonably foreseeable." The Veteran's complications from his two VA surgeries were clearly foreseeable. There is no contrary medical opinion of record on that issue. In making this determination regarding the foreseeability of the Veteran's post-op complications, the Board finds that the Veteran's complications from the VA eye surgeries in November 2008 and December 2008 were the type of risks that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See again 38 C.F.R. § 3.361(d)(2). As relevant to his point, the Board has considered the Court's recent holding that the standard for foreseeability is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Otherwise stated by the Court, merely because a treating physician, expert, or other health care provider actually foresaw certain risks does not mean that a reasonable health care provider with primary care for the patient would have disclosed these risks. The key is what a "reasonable health care provider" would have disclosed. Schertz v. Shinseki, No. 11-2694 (Vet. App. Sep. 26, 2013). In the present case, it is significant that August 2013 VA ophthalmologist in his medical opinion noted that the complications the Veteran encountered (and was actually advised of in the informed consent forms by the VA surgeons) are "well-known risks of cataract surgery." Thus, the evidence of record reflects that a "reasonable health care provider" would have considered the specific complications the Veteran sustained to be ordinary risks of treatment, such that they were foreseeable complications of his VA eye surgeries. In light of the above, the Board finds that the criteria for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional disability of the left eye caused by VA surgeries on November 20, 2008 and December 8, 2008 have not been met, and the claim must be denied. Because the preponderance of the evidence is against the § 1151 claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left eye caused by VA surgeries on November 20, 2008 and December 8, 2008 is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs