Citation Nr: 1340429 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 08-33 783A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for back and left leg injuries, claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing prescription eyeglasses in February 2005. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A Travel Board hearing was held at the RO in August 2011 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record. In February 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the RO/AMC to attempt to obtain additional VA outpatient treatment records and the Veteran's Social Security Administration (SSA) records. These records subsequently were associated with the Veteran's claims file and his Virtual VA paperless claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In January 2013, the Veteran submitted a waiver RO review of any evidence submitted at a later time to VA. The Veteran submitted additional evidence directly to VA in June 2013. See 38 C.F.R. § 20.1304 (2013). FINDING OF FACT The record evidence shows that the Veteran's back and left leg injuries were not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for back and left leg injuries, claimed as a result of providing prescription eyeglasses in February 2005, under the provisions of 38 U.S.C.A. § 1151, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in April 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence demonstrating that his back and left leg injuries were the result of negligent VA outpatient treatment in February 2005 and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As will be explained below in greater detail, the evidence does not support granting the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for back and left leg injuries claimed as due to VA lack of proper care/negligence in providing prescription eyeglasses in February 2005 ("1151 claim"). Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the April 2006 notice was issued prior to the currently appealed rating decision issued in August 2006; thus, this notice was timely. Because the Veteran's 1151 claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting VLJ (AVLJ) noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The AVLJ specifically noted the issue as entitlement to compensation under 38 U.S.C.A. § 1151 for back and left leg injuries claimed as due to VA lack of proper care/negligence in providing prescription eyeglasses in February 2005. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. The representative and the AVLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Veteran about the facts and circumstances surrounding the prescription eyeglasses that he received from VA following outpatient treatment in February 2005. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the AVLJ asked questions to draw out the evidence which related the Veteran's back and left leg injuries to VA lack of proper care/negligence, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The record evidence includes VA outpatient treatment records, including records concerning the prescription eyeglasses that the Veteran received following VA outpatient treatment in February 2005, and a VA examiner's opinion dated in January 2013 which addressed the contended causal relationship between the prescription eyeglasses that the Veteran received following VA outpatient treatment in February 2005 and back and left leg injuries which allegedly resulted from this treatment. After review of this opinion, the Board finds that it provides competent, non-speculative evidence regarding the claimed etiology of the Veteran's back and left leg injuries. Thus, the Board concludes that an examination is not required even under the low threshold of McLendon. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Factual Background The Veteran's VA outpatient treatment records and examination reports show that he has complained of and been treated for a variety of back and left leg complaints since his service separation. For example, on VA examination in May 1999, the Veteran reported that he experienced "visual problems/blurry vision" as complications of diabetes mellitus. The VA examiner noted, however, that a review of the Veteran's VA outpatient treatment records documented no diabetic retinopathy. Physical examination showed that the Veteran wore bifocals. On VA outpatient treatment in October 2004, the Veteran's complaints included a "pinched nerve in back" which had started 5 days earlier and did not radiate. The Veteran denied any injury and reported having similar problems "off and on" for 30 years. His history included 2 motor vehicle accidents and industrial and diving accidents. He also had seen a chiropractor for treatment in the past. He denied any bowel or bladder complaints. Physical examination showed he ambulated slowly "due to back pain," no focal spinal tenderness, and the Veteran "could not cooperate" for straight leg raising because he complained of back pain. On February 22, 2005, the Veteran's visual acuity was 20/20+ in the right eye and 20/30- in the left eye. Intraocular pressure was 12 in the right eye and 13 in the left eye. Slit lamp examination was within normal limits in both eyes. The assessment included diabetes mellitus without retinopathy and primary open angle glaucoma suspect - low suspicion, likely ocular hypertension versus high-normal intraocular pressure, and anisometropic amblyopia in the left eye. An eyeglass request dated on February 22, 2005, indicates that progressive lenses were considered appropriate for the Veteran's diagnosis of refractive error. This request also indicates that the lens style for the Veteran's eyeglasses was bifocal. The Veteran was seen in the emergency room at a VA Medical Center on March 14, 2005, when he complained that he "had muscle pull in lower back last week. Fell today on left hip. Having difficulty walking. Pain mainly left hip." Physical examination showed he was ambulatory with a tender hip and good range of motion. X-rays of the left hip were negative. The diagnosis was a contusion. On VA outpatient treatment on March 17, 2005, the Veteran complained that he had sprained his back 2 weeks earlier when he had a "blowout" of a tire on his vehicle and another back sprain 5 days earlier when he tripped outside of his home. He also complained of left leg tingling below the left knee. He reported that he had been seen in the emergency room following his second back sprain but the non-steroidal anti-inflammatory medication that he was given was "not helping much. Pain better in sitting position." His pain was located in the left gluteal region but not on his spine. He denied any bowel or bladder complaints. Physical examination showed he was in a wheelchair and "can take few steps without assistance." He limped and complained of pain. He had normal hip movement. X-rays of the left hip showed no acute fracture or dislocation and no significant degenerative change. On March 23, 2005, the Veteran's complaints and his physical examination were unchanged. The assessment included acute back pain. On April 7, 2005, the Veteran reported a "history of one fall due to poor vision." He used a walked for chronic back pain. He rated his low back pain as 8/10 on a pain scale (with 10/10 being the worst imaginable pain). He also reported that he had less than 1 month of low back pain due to status-post back strain "and then 1 week later a fall." His low back pain was dull and throbbing. In a Telephone Contact dated on June 29, 2005, and included in the Veteran's VA outpatient treatment records, it was noted that he "contacted front desk regarding having problems with eyeglass prescription prescribed 4/05, unable to see with lens due to 'slab' prescribed by physician." The Veteran was offered 2 different appointment times but was unable to attend either of them. He was advised to call the Administrative Officer at the VA Medical Center when he was able to attend an appointment. On VA outpatient neurosurgery consult on July 13, 2005, the Veteran's complaints included a history of back pain for 5 months "since a fall" and tingling/numbness and occasional cramping of the left leg "most of the time." He described his low back pain as cramping in the low back, gluteal muscles, posterior thigh "and stops above the knee." He also experienced radiating pain in to the lateral leg and the bottom of the foot which "happened a few times, but not recently." He walked with a cane. Physical examination showed he walked on his heels and toes with more difficulty on the heels, intact sensation throughout, full strength in dorsiflexion and plantar flexion, give way weakness of the left lower extremity, and straight leg raising "with unclear results - stretching of calf muscle with [diffuse] tingling below the knee and into the bottom of the foot." The impressions included a history of chronic low back pain "and signs that related to a possible" left S1 radiculopathy. On VA outpatient eye care treatment on July 13, 2005, the Veteran "complains that he cannot see well with his glasses." His visual acuity was 20/20-2 in the right eye and 20/30-2 in the left eye. Slit lamp examination was within normal limits. The Veteran's intraocular pressure was 19 bilaterally. The assessment was diabetes mellitus without diabetic retinopathy, primary open angle glaucoma suspect previously because of ocular hypertension and with healthy nerves, and borderline cataract in the left eye with new spectacles. The Veteran was advised to return in 1 year. An eyeglass request dated on July 13, 2005, indicates that progressive lenses were considered appropriate for the Veteran's diagnosis of presbyopia. This request also indicates that the lens style for the Veteran's eyeglasses was bifocal. On VA physical medicine & rehabilitation outpatient treatment on July 18, 2005, the Veteran complained of low back pain radiating down the left leg for 4 months. He reported falling "on March 3, 2005, while attending an auction in Houston, Texas." He denied any head trauma, neck trauma, or loss of consciousness "during his injury. He describes the back pain as constant, with no exacerbating factors," and "intermittent spasms affecting the back of the leg." He also reported experiencing "numbness and tingling down the back of the leg to the heel and the bottom of the foot" that occurred "off and on." Physical examination showed no pain on palpation of the lumbar spine or bony pelvic landmarks, decreased lumbar spine range of motion on flexion with pain on active range of motion, decreased range of motion on extension, lateral bending, and rotation of the lumbar spine, decreased left hip range of motion on internal and external rotation secondary to pain, 3/5 motor strength of the left hip flexors, 5/5 motor strength of the right hip flexors, decreased sensation on the left, and normal sensation on the right. The assessment included a past medical history significant for obesity, diabetes mellitus, and a fall in March 2005 presenting with a chief complaint of low back pain radiating down the posterior left leg. An magnetic resonance imaging (MRI) scan taken in April 2005 was reviewed and showed moderate disc degeneration with a 4 millimeter (mm) caudally migrated left posterolateral disc herniation "which most likely impinges the left S1 nerve root in the lateral recess." The impressions were possible S1, S2 sensory radiculopathy, muscle-related low back pain with tight priformis and iliotibial band, and mechanical low back pain affecting the intervertebral discs and facet joints. On VA eye examination in August 2005, the Veteran denied any "symptoms of distorted vision, enlarged images, or pain." He reported being told that he had "relatively fast growing cataracts." He had been diagnosed as having nuclear sclerotic cataracts in both eyes approximately 1 year earlier but this "condition is not due to injury." The Veteran reported that his cataracts did not cause incapacitation, functional impairment, or any time lost from work. Physical examination showed fundoscopy within normal limits, intraocular pressure within normal limits in both eyes, no keratoconus or diplopia, and visual field examination within normal limits. Visual acuity was 20/30 corrected to 20/30 in the right eye and 20/400 corrected to 20/50 in the left eye. The diagnosis was cataracts in both eyes with subjective factors of blurred vision in the left eye worse than the right eye and objective factors of cataracts in the left eye worse than the right eye. In a June 27, 2006, Nursing Note included in the Veteran's VA outpatient treatment records, the Veteran reported that a "grocery cart ran over his heel about 2 [hours] ago which intensified chronic back pain." He reported that his low back pain "hurts like hell" and rated it as 8/10 on a pain scale. On VA outpatient treatment in July 2006, the Veteran complained of a gradual decrease in left eye vision over the past year. It was noted that the Veteran was being seen for his annual ocular health examination. His history included insulin dependent diabetes mellitus, no diabetic retinopathy, primary open angle glaucoma suspect previously because of ocular hypertension, mild anisometropic amblyopia in the left eye, and borderline cataract in the left eye. The Veteran's visual acuity was 20/20 in the right eye and 20/80 in the left eye. Physical examination showed full visual fields to confrontation in both eyes, unrestricted extraocular movements in both eyes, alternating exotropia with the right eye dominant on cover test, a sebaceous cyst on the right lower lid which was an "inner canthus," mildly injected conjunctivae in both eyes, flat and intact irises in both eyes, deep and quiet anterior chambers in both eyes, syneresis in both eyes, and intraocular pressure of 17 in both eyes. The assessment included visually significant nuclear sclerotic cataracts in the left eye with 20/50 best corrected visual acuity, non-visually significant cataract in the right eye, insulin dependent diabetes mellitus without diabetic retinopathy, alternating exotropia - right eye dominant, possible anisometropic amblyopia in the left eye with minimal strabismus component, refractive/presbyopia - myopic shift in the left eye. The VA clinician deferred an order for new eyeglasses until after cataract extraction. This clinician also noted that the Veteran reported that "he was ordered standard trifocals in the past which caused him to lose his balance and fall." In October 2006, the Veteran complained of progressive decreased vision in the left eye. It was noted that he had reported for pre-operative treatment. The Veteran's visual acuity was 20/20 in the right eye and 20/50+ in the left eye. Slit lamp examination showed dermatochalasis in both eyes, conjunctiva/sclera within normal limits in both eyes, and deep and quiet anterior chambers in both eyes. The assessment included visually significant nuclear sclerotic cataracts in the left eye with 20/50 best corrected visual acuity. The Veteran was interested in cataract extraction and was cleared to proceed with this surgery. He was made aware of complications of cataract surgery, including loss of vision for the eye and the need for spectacles. The Veteran had left eye cataract surgery at a VA Medical Center on October 23, 2006. The pre- and post-operative diagnoses were left eye cataract. An anterior capsule tear without posterior extension and sulcus on the intraocular lens were noted as complications. The Veteran reported to the emergency room at a VA Medical Center on October 28, 2006, complaining of left eye discomfort and eye pain and worsening blurred vision in the left eye. The Veteran's recent left eye cataract surgery was noted along with his failure to use his eye shield since surgery. Objective examination of the left eye showed no erythema/edema, intact extraocular movements, pupil equal, round, and reactive to light and accommodation, visual acuity 20/70+1, and no gross discharge nor inflammations or foreign bodies. The assessment was foreign body sensations of the left eye, status-post cataract surgery. A VA eyeglass request included in the Veteran's VA outpatient treatment and dated in December 2006 indicates that progressive lenses were "medically necessary given history of falls and back injuries with lined bifocals in the past." The provisional diagnosis was myopia. On VA outpatient treatment in January 2007, the Veteran complained of asthenopia with present new glasses after cataract surgery in the left eye. The Veteran's visual acuity was 20/100 in the right eye and 20/25- in the left eye. The VA staff optometrist noted that the Veteran had "no problem reading whatsoever" when wearing his eyeglasses and decided to replace the left lens with the same prescription. Physical examination showed full visual fields to confrontation in the both eyes, pupils equal, round, and reactive to light and accommodation in both eyes, and slit lamp examination within normal limits. The assessment included no diabetic retinopathy, stable pseudophakia in the left eye, a right eye cataract that was not visually significant, and asthenopia with new glasses. In October 2008, the Veteran complained that his vision was "not as clear" and seeing a black circle in the center of his vision in both eyes when his blood sugar drops. The Veteran's ocular history was noted. His visual acuity was 20/20 in the right eye and 20/20+2 in the left eye, intraocular pressure of 18 in the right eye and 16 in the left eye. The Veteran stated that the small circle "lasts for 2 hours. It has been occurring for the past 2 months" approximately 3 times per month. "States he notices pressure during these episodes" below his superior orbital rims "which goes away 'quickly.'" A history was noted of non-arteritic ischemic ocular neuropathy (NAION) in the left eye which had resolved and diabetes without retinopathy. Physical examination showed the Veteran's eyes were non-tender to palpation, meibomian gland dysfunction in both eyes, quiet conjunctivae/sclerae in both eyes, poor tear film with debris, deep anterior chambers in both eyes, and clear vitreous fluid in both eyes. The assessment included a history of NAION in the left eye which was resolved, diabetes without retinopathy, stable pseudophakia in the left eye, a right eye cataract that was not visually significant, and intermittent loss of balance with "likely not ocular etiology." The Veteran was given a consult to an ears, nose, and throat (ENT) clinic to rule out vestibular etiology. In December 2008, the Veteran complained of increasing loss of balance. It was noted that he had been referred by ophthalmology. "He reports frequent falls. He has been using a cane for over 3 years." A history of back pain and radiculopathy/sciatica was noted. The Veteran also had diabetes mellitus and diabetic neuropathy "for which he wears special diabetic shoes." A recent electromyograph (EMG) had shown peripheral sensory polyneuropathy but no true vertigo. Physical examination showed no spontaneous or gaze-evoked nystagmus, clear bilateral tympanic membranes, a supple neck, no head shake nystagmus, moderate difficulty with tandem gait, and no cerebellar signs. The assessment was peripheral sensory neuropathy with no true vertigo or inner ear etiology suspected. No further ENT intervention was indicated. The Veteran was advised to return to the clinic on an as needed basis. In January 2009, no eye complaints were noted. The Veteran's ocular history was noted. His visual acuity was 20/20 in both eyes. It was noted that the Veteran "is wearing progressives." It also was noted that the Veteran reported falling "with bifocals." The Veteran's intraocular pressure was 11 in the right eye and 10 in the left eye. The impressions were unchanged from October 2008. In March 2009, it was noted that the Veteran "presents ambulatory assisted by rollator walker, alert and oriented, but responds slowly to verbal stimuli. Reports pain to back and neck after thinking about it. [Veteran] reports pain medication is not working and has to take it more often." In May 2009, the Veteran complained of "intermittent vision loss 'every once in a while.' Could not give specifics." He also reported that "his eyes [were] getting tired while reading/watching TV." The Veteran did not bring his eyeglasses with him. His intraocular pressure was 18 in both eyes. Slit lamp examination showed "greasy flakes on upper and lower lashes," conjunctivae/sclerae within normal limits in both eyes, and irises within normal limits in both eyes. The assessment included mild blepharitis but was otherwise unchanged. In June 2011, the Veteran's complaints included blurry vision in the right eye, lid margins swollen and red bilaterally, and "intermittent central bright and dark spot in both eyes yesterday and today." The Veteran's ocular history was noted. His visual acuity was 20/20-1 in the right eye and 20/20-2 in the left eye. It was noted that the Veteran "can only tolerate progressive lens. [Veteran] received these newly remade [eyeglasses] and is satisfied." His intraocular pressure was 16 in both eyes. There were significant lid margin issues but no corneal staining. The assessment was unchanged. The Veteran testified at his August 2011 Board hearing that, following VA outpatient eye treatment in February 2005, he had been given the wrong eyeglasses prescription. See Board hearing testimony dated August 17, 2011, at pp. 3. He stated that he "couldn't get used to the bifocals" and he was supposed to receive "progression lenses." After he received the wrong eyeglasses, the Veteran stated that he had fallen at an auction and seriously injured his back. Id., at pp. 3-4. He also testified that his back injury had resulted in neuropathy of the left lower extremity. Id., at pp. 4. He testified further that he subsequently received "progressive lenses" from VA which were the correct eyeglasses prescription. Id., at pp. 4-5. He also testified further that it was negligence of VA to issue him the wrong eyeglasses prescription in February 2005 which led to his fall. Id., at pp. 10. In a September 2011 statement, J.E. stated that he had held an auction "several years ago" where the Veteran had been a customer. J.E. also stated that, at the end of this auction, the Veteran had fallen "out the back door. Later, he complained of back trouble." J.E. finally stated that the Veteran had experienced back trouble since this fall. On VA outpatient treatment in January 2012, the Veteran complained, "I have four discs out of my lower back. Reports has had 1-2 falls per month-'they are not from my back they are from head.'" He was able to walk "a little bit." He used a rollator walker and another smaller walker and a cane. He rated his low back pain as 9/10 on a pain scale. A scooter was requested for the Veteran. A review of the Veteran's SSA records, received by VA in February 2012, shows that he was awarded SSA disability benefits in October 2005 for lumbar disc disease and bipolar disorder. These records consist largely of duplicate copies of his VA outpatient treatment records and examination reports. In a medical opinion dated in January 2013, a VHA clinician opined that it was less likely than not that the Veteran's claimed back and left leg injuries were the result of "VA's prescription of bifocal style eyeglasses in 2005." This clinician stated that she had reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records, in detail. The rationale for this clinician's opinion was that the medical evidence did not support finding an etiological link between the Veteran's prescription eyeglasses in 2005 and any back or left leg injuries. She noted that the Veteran's uncontrolled diabetes mellitus and its secondary complications, to include peripheral neuropathy, poor eye sight, muscle weakness, and vascular insufficiency leading to lower extremity swelling, "often translate into a poor gait cycle and imbalance because of diminish[ed] fine touch and misplacement of the foot on the ground. This antalgic gait often is as least as likely as not to be a major factor in the Veteran's increased tendency to fall." The rationale also was that "bifocal style lenses remain appropriate care [for the Veteran's vision problems] although it can be argued that personal preference may lean toward progressive style lenses." This clinician described bifocal lenses as a dual segmented construction which were commonly used medical devices to correct focal vision in many patients with presbyopia. The VHA physician found no error or misdiagnosis on the part of the VA optometry department. This clinician noted further in her rationale that x-rays of the Veteran's lumbar spine showed degenerative joint disease which was "a slow, long term degenerative process rather than a condition secondary to a fall due to his use of bifocals." This VA clinician concluded that there was no evidence of additional disability caused by VA's prescribing eyeglasses to the Veteran in February 2005. She also concluded that the Veteran's claimed back and left leg injuries were not caused or aggravated "by an existing disease or injury suffered as a result of VA care. There was no evidence to show actual causation rather than coincidental occurrence." She opined instead that it was at least as likely as not that the Veteran's back and left leg injuries were due to the complications of longstanding uncontrolled diabetes mellitus, "his aging process, and poor personal care." A review of evidence submitted to VA in June 2013 by the Veteran shows that it consists of duplicate copies of VA outpatient treatment records. Law and Regulations The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that compensation 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 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 (West 2002). From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an unforeseen event. Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim. See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361). 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). 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. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death 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)(1). 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for back and left leg injuries, claimed as due to VA lack of proper care/negligence in providing prescription eyeglasses in February 2005. The Veteran contends that he is entitled to additional compensation under 38 U.S.C.A. § 1151 for back and left leg injuries claimed as due to VA lack of proper care/negligence in providing him eyeglasses in February 2005. The Veteran specifically contends that, in negligently prescribing him the wrong eyeglasses prescription in February 2005, VA caused or contributed to his subsequent back and left leg injuries experienced following a fall at an auction in March 2005. He contends that, but for VA lack of proper care/negligence in providing him what was, in his view, an incorrect eyeglasses prescription in February 2005, he would not have experienced additional back and left leg disability. The record includes a December 2006 VA clinic record noting that, at that time, progressive lenses were deemed "medically necessary" given the Veteran's reported history of falls and back injuries using lined bifocals in the past. Thus, the Board finds that the Veteran's bifocal lens prescription in February 2005 may have been a contributing factor to the March 2005 falling episode. However, the fact that the Veteran's bifocal lens prescription in February 2005 may have been a contributing factor to his March 2005 falling episode, in and of itself, does not establish his entitlement to compensation under 38 U.S.C.A. § 1151 as the evidence must demonstrate, to at least equipoise, that the prescription of bifocals by VA were the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. The most persuasive evidence on this point consists of the January 2013 of the VHA clinician. This clinician first observed that the Veteran's nonservice-connected diabetes mellitus with secondary complications of peripheral neuropathy, poor eyesight, muscle weakness and vascular insufficiency translated into a poor gait cycle and imbalance which was a major factor in the Veteran's tendency to fall. This opinion is fully supported by the clinic records reported above, and shows that the Veteran has multiple factors which contribute to his imbalance difficulties. See, e.g., VA clinic record dated December 2008. More importantly, the VHA physician opined that bifocal style lenses remained "appropriate care" for the Veteran's vision problems although personal preferences may lean toward progressive style lenses. Here, the Veteran was prescribed bifocal lenses in February 2005 which the VHA examiner described as 'commonly used medical devices" to correct focal vision, and that there was no error or misdiagnosis on the part of the VA optometry department. In March 2005, the Veteran informed VA physicians of back problems which he attributed to a back sprain and fall, but he did not report that these incidents were attributable to his bifocal lenses. The March 2005 time frame is the time frame for the alleged falling incident he attributes to his bifocal glasses which caused his back and left leg disabilities. On the other hand, the only evidence tending to support the Veteran's allegations that his March 2005 falling injury was due to an inappropriate prescription of bifocal lenses is the opinion and testimony of the Veteran himself. Here, the Veteran does not identify how VA's prescription of bifocal lenses in February 2005 may be considered lack of proper care/negligence/misdiagnosis, etc. For example, he has not referred to any authoritative sources indicating that, for his type of visual disability, a prescription of bifocal lenses was medically inappropriate, or that VA should have foreseen that bifocal lenses would have a tendency to cause him to fall. Important for this decision, while the Veteran reported a preference for progressive lenses, he did not make VA aware prior to the March 2005 injury of any past history that bifocal lenses were not medically appropriate. VA subsequently deemed a prescription of progressive lenses to be medically necessary, but this only occurred after receiving information from the Veteran regarding problems with his bifocal lenses. Overall, the Board places greater probative weight to the opinion of the VHA clinician who has greater expertise and knowledge concerning the appropriate standard of care offered in February 2005 as opposed to the Veteran's own perception of appropriate medical standards which, by the record available to the Board, is not supported by any form of evidence which matches the knowledge and expertise of the VHA physician. The Board acknowledges that the Veteran has offered a witness statement, but this witness does not offer any opinion on this dispositive matter. In summary, the Board finds that the January 2013 VA clinician provided a comprehensive rationale for her opinion on the appropriate standard of care offered in February 2005 which substantially outweighs the Veteran's own personal opinion. Overall, the preponderance of the evidence establishes that the Veteran's back and left leg injuries were not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for back and left leg injuries, claimed as due to VA lack of proper care/negligence in providing prescription eyeglasses in February 2005, is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs