Citation Nr: 1339122 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-13 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013) for right eye infection, herpes simplex keratitis, as a result of hospitalization at the Milwaukee VA Medical Center ("VAMC"). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to July 1969. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Milwaukee, Wisconsin. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. FINDING OF FACT A right eye infection, herpes simplex keratitis is not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right eye infection, herpes simplex keratitis, as a result of VA hospitalization have not been met. 38 U.S.C. § 1151 (West 2002); 38 C.F.R. § 3.361, 17.32 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA ("Secretary"). See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). In this case, an October 2009 pre-adjudication letter informed the Veteran of the types of evidence needed in order to substantiate his claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. Thereafter, the case was readjudicated in a March 2011 Statement of the Case ("SOC") and an October 2012 Supplemental Statement of the Case ("SSOC"). B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, and VA examination reports dated October 2009, December 2009 and September 2012. In addition, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the October and December 2009 examination reports reveals that, although the examiner reviewed the complete claims folder and completed a comprehensive evaluation of the Veteran, their final opinions as to whether the treatment the Veteran received at the Milwaukee VAMC resulted in his right eye infection were somewhat unclear. Therefore, the Veteran's claims folder was reviewed by a third examiner in September 2012. Review of this report demonstrates that the examiner reviewed the complete claims folder, as well as the two previous examination reports, and provided a well-reasoned explanation for his opinion that the Veteran's right eye infection not the result of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Accordingly, the Board finds the VA examination reports, when taken as a whole, to be adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Veteran avers that he developed an infection of the right eye, subsequently diagnosed as herpes simplex keratitis, in March 2009, while being treated for pneumonia at the Milwaukee VAMC; the Veteran further claimed that his pneumonia was secondary to his service-connected asthma. He has specifically asserted that he developed cold sores on his mouth as a result of wearing an oxygen mask and that the cold sore virus travelled up his nose and into his right eye. See claim, August 2009. In pertinent part, 38 U.S.C. § 1151 reads as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title 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. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and -- (1) 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." In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2013). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2013). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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) (2013). 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 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. 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. 38 C.F.R. § 3.361(d)(1) (2013). 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. 38 C.F.R. § 3.361(d)(2) (2013). Review of the Veteran's hospital summary, as well as the October 2009 VA eye examination, shows that the Veteran was hospitalized on March 8, 2009 for shortness of breath. He was subsequently diagnosed with community-acquired pneumonia and was initially kept on a bilevel positive airway pressure ("BiPAP") machine. His symptoms improved on antibiotics, however, a March 12 progress note shows he reported having a right temporal headache, which responded to Tylenol. There was no note of any eye pain or cold sores made at that time. The Veteran was discharged from the hospital on March 13, 2009. A post-discharge call from the hospital was made on March 16, at which time, the Veteran reportedly had no questions or concerns. A March 18, 2009 treatment record shows that the Veteran was seen at the VAMC with complaints of spinal stenosis and shoulder pain. At that time, he also reported a new onset of right-sided headache, tearing of the right eye, and sensitivity to light. He reported that he had had the headache while hospitalized at the VAMC. An examination revealed right eye tenderness, possible irritation with mild swelling, right upper/lower eyelid, probable iritis. The following day, the Veteran returned and was examined in the ophthalmology clinic, where he was diagnosed with glaucoma suspect and herpes simplex virus ("HSV") keratitis of the right eye. During the October 2009 VA eye examination, the clinician took a history of symptomatology from the Veteran and reviewed the complete claims folder. She recorded a detailed history of the Veteran's treatment for his right eye through July 2009. She made the following diagnoses: 1) HSV, dendritic and stromal keratitis, right eye, as well as trabeculitis of the right eye; 2) decreased vision of the right eye due to the aforementioned conditions; 3) proliferative diabetic retinopathy, both eyes, status-post panretinal photocoagulation, both eyes; 4) clinically-significant diabetic macular edema, both eyes, status-post focal laser, both eyes. She opined that it was less likely as not that the claimed disability "was caused by or became worse as a result of the VA treatment of the issue." She further opined that it was less likely as not that the disability resulted from carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel. She opined that it was more likely than not that the disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider. She further opined it was less likely as not that the disability was caused by the failure on the part of the VA to timely diagnose and/or properly treat the claimed disability allowing the disability to continue to progress. In this respect, the Board notes that the examiner referred to the "VA treatment of the issue," which possibly suggests that her opinion referred to the subsequent treatment the Veteran has received for his HSV at the VAMC instead of the treatment he received while hospitalized for pneumonia. Moreover, she added that "it is difficult to say that the patient's herpes simplex dendritic keratitis definitely started while he was an inpatient," which suggest an equivocal rationale. Accordingly, the Veteran was scheduled for another VA examination. During the December 2009 examination, the clinician primarily discussed the Veteran's visual acuity without providing a detailed discussion of his contention that his right eye disorder is the result of VA hospital treatment. He concluded that the Veteran's corneal infection was a herpetic organism neither related to service, nor his non-service-connected diabetes mellitus. It was noted that the Veteran became exposed to the infection during the course of treatment for pneumonia. He concluded that it was at least as likely as not that the present corneal infection was related to the Veteran's service-connected asthma. The basis for this opinion was not explained, and appears to be based on the unsubstantiated premise that the Veteran's VA hospitalization was for treatment of service-connected asthma, which, as will be explained, is inaccurate. Thereafter, in February 2010, the Veteran's claims folder was reviewed for an opinion as to whether his pneumonia was secondary to his service-connected asthma. The examiner concluded that his pneumonia was neither caused, nor aggravated by his service-connected asthma, and that his March 2009 hospitalization and treatment was not related in any way to his service-connected asthma. As discussed above, because the VA examination reports were somewhat ambiguous, in September 2012, the Veteran's claims folder was sent for review by another clinician for an opinion as to whether his HSV was the result of VA hospitalization and treatment. After careful review of the claims folder, he opined that he agreed with the clinician who performed the initial examination in October 2009 that it is less likely than not that receiving BiPAP during the Veteran's VA hospitalization "represents" a primary HSV infection that later spread to the eye." In this respect, he noted that HSV infections that affect the eyes are generally seen as a manifestation of a dormant disease and the majority of people have latent disease that can surface as active disease under conditions of stress. Accordingly, he noted that, given the high prevalence of latent infection, this does not represent a contraindication to receiving oxygen by mask. He also noted that, despite the Veteran's claims of having developed cold sores while hospitalized, there was no indication of such until after the Veteran's eye condition developed following his hospitalization. Thus, he opined that it is less likely than not that the Veteran's HSV keratitis was caused by or became worse as a result of the VA treatment at issue; or carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. In addition, he concluded that it is less likely than not that the HSV keratitis resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. III. Conclusion Based on a review of the evidence of record, the Board concludes that the requirements for compensation under 38 U.S.C.A. § 1151 are not met, as the probative evidence fails to establish that the Veteran's eye disorder was a result of his hospitalization and treatment for pneumonia at the Milwaukee VAMC. In making this determination, the Board finds the most probative evidence to be the October 2009 and September 2012 examination reports, in which, as discussed above, after careful consideration of the Veteran's hospital and post-hospital treatment records, the examiners concluded that the Veteran's HSV keratitis was a manifestation of a dormant disease that can surface during times of stress. As such, the Board finds no evidence of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing the hospital treatment. The VA examiners' findings are consistent with the medical evidence, as no treatment reports of record show the Veteran to have any additional disabilities as a result of VA hospitalization and treatment in March 2009. There is also no evidence that his current disorder was aggravated by such treatment. In addition to the medical evidence of record, the Board has considered the Veteran's personal contentions that some failure on the part of VA resulted in his eye disease. However, as a layperson, the Veteran lacks the requisite medical expertise to offer a medical opinion without competent substantiation. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Veteran is competent to report complaints he experiences regarding the right eye, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, the issue in this case is a complex matter which requires specialized training for a determination; therefore, it is not susceptible of resolution by lay opinions on etiology. Based on the foregoing, the Board concludes that there is no competent evidence demonstrating the presence of additional disability due to VA negligence, lack of proper skill, error in judgment or similar instance of fault on VA's part, and therefore, compensation under 38 U.S.C.A. § 1151 must be denied. Accordingly, for the reasons stated above, the Board finds that the evidence is against the claim for compensation under 38 U.S.C.A. § 1151 for right eye infection, herpes simplex keratitis, as a result of hospitalization at the Milwaukee VAMC. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right eye infection, herpes simplex keratitis, as a result of hospitalization at the Milwaukee VAMC is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs