Citation Nr: 1340884 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-21 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to April 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In January 2013, the case was remanded for additional development and it now returns to the Board for further appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional VA treatment records, which were considered by the agency of original jurisdiction (AOJ) in the August 2013 supplemental statement of the case, and the Veteran's representative's November 2013 Informal Hearing Presentation. 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). FINDINGS OF FACT A left eye disorder did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disorder are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA did not satisfy its duty to notify prior to the initial unfavorable decision. Specifically, in a pre-adjudicatory August 2007 letter, the RO provided incorrect criteria for eligibility for compensation under 38 U.S.C.A. § 1151, referring instead to related benefits available to a veteran's survivors. Following the initial November 2008 unfavorable decision, the RO provided a corrected letter in November 2009 that met the requirements. The notice explained the correct criteria for eligibility for compensation under 38 U.S.C.A. § 1151 and the Veteran's and VA's respective responsibilities to obtain relevant evidence. After issuance of the November 2009 letter, and opportunity for the Veteran to respond, the January 2010 statement of the case and the September 2012 and August 2013 supplemental statements of the case readjudicated the claim. Hence, the Veteran was prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as in a statement of the case, is sufficient to cure a timing defect). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of the VCAA. The evidence of record contains the Veteran's service treatment records, post-service VA and private medical records, and lay statements and testimony of the Veteran. In this regard, in the January 2013 remand, the Board identified potentially pertinent records from the Social Security Administration, VA outpatient treatment reports, and records of care at a university hospital that were not associated with the paper or electronic files. In response to inquiries by the AOJ, in March 2013, an SSA representative reported that no medical records were available. Additional records of VA outpatient care from 1995 to the present were obtained and associated with the claims file. Although some records of VA care from April 1986 to August 1986 were already of record, the AOJ was unable to recover additional records from 1986 to 1994 including records at a different VA Medical Center. In a June 2013 telephone record, the Veteran confirmed that he did not seek VA treatment at such Medical Center. The Veteran did not provide specific identification and authorization for recovery of records from the university hospital. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). The AOJ advised the Veteran of the status of the record recovery effort in an August 2013 supplemental statement of the case. Moreover, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional evidence that is necessary for a fair adjudication of the claim that has not been requested or obtained. Additionally, VA obtained opinions in October 2008 and July 2013 so as to adjudicate his § 1151 claim. Neither the Veteran nor his representative has alleged that the opinions are inadequate. Moreover, the Board finds that such are adequate in order to evaluate the Veteran's § 1151 claim as the opinions were provided by qualified VA clinicians who noted a detailed review of the claims file both before and after the most recent recovery of records. Moreover, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds that the foregoing opinions are adequate to adjudicate the Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 and no additional opinion is necessary. In January 2013, the Board remanded the case for additional development. As discussed in the preceding paragraphs, the outstanding records identified in the Board's remand have been obtained to the extent possible, and an addendum opinion was obtained in July 2013. Therefore, the Board finds that the AOJ has substantially complied with the January 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 10 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II Analysis The Veteran served as a U.S. Army anti-aircraft artilleryman with service in Japan during the Korean War. He contended in a June 2007 claim and in a July 2009 notice of disagreement that he sustained an additional and more severe left eye disorder because of the negligent performance of laser surgery at the VA Medical Center in Kansas City, Missouri or at a private hospital under VA direction in 1995. Compensation under 38 U.S.C.A. § 1151 is awarded for a qualifying additional disability as caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 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 care or treatment is rendered. 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 causation. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; 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). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). The Board must weigh any competent lay evidence and to make a credibility determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). From April 1986 to August 1986, the Veteran was treated at a VA Medical Center for ischemic optical neuropathy of the right eye. Although many clinical entries showed the left eye to be within normal limits, one entry in August 1986 noted some macular degeneration of both eyes. As noted above, no records of VA care from August 1986 through December 1994 were recovered. In his June 2007 claim, the Veteran reported that he sought VA treatment in 1995 for a problem with blood vessels in his left eye. He reported that his attending VA physician, Dr. B., advised him that laser treatments were not working and that he should undergo surgery. The Veteran noted that, after the surgery at a private hospital, his physician advised others not to attempt any further laser treatments. Nevertheless, the Veteran noted that additional laser "surgery" was performed using a high energy setting that "...snapped my head back and permanently damaged my eye." In January 1995, a VA physician, Dr. J.M. noted that the Veteran was seeking follow-up treatment for a branch retinal vein occlusion with neovascularization of the optic disk of the left eye. On examination, the physician noted that visual acuity was 20/70 with the presence of a cataract. The physician noted that the disorder first manifested in February 1994 with several recurrent episodes. The Veteran had undergone a pan-retinal photocoagulation (PRP) procedure at 1725 spots in August 1994 that was not successful in stopping the recurrent bleeding. The Veteran signed a consent form for additional laser treatments. The form advised the Veteran that the risks of laser PRP included loss of central or peripheral vision, loss of eye, decreased night vision, bleeding, glaucoma, pain, retinal detachment, and failure and need to repeat. The physician noted that the Veteran received additional laser treatment at 286 spots and at another 360 spots two weeks later for a total of 2371 spots. There were no notations of eye or head trauma, equipment malfunction, or high energy settings. Approximately one month later in February 1995, the physician noted the Veteran's reports of recurrent bleeding. Visual acuity was 20/30. The physician noted that additional PRP should not be done until the bleeding cleared. In March 1995, visual acuity was "hand motion," and the physician advised the Veteran to consider a vitrectomy if there was no improvement. The Veteran was admitted to a private hospital in late April 1995 with a diagnosis of vitreous hemorrhage and cataract in the left eye. The Veteran underwent a pars plana vitrectomy, pars plana lensectomy, 632 additional applications of endolaser photocoagulation, and the injection of steroids. The private surgeon, Dr. C.H.B., noted initially that there were no complications and that the Veteran was seen for a post-operative follow-up at a VA clinic. However, five days after the surgery, the private surgeon noted a pale optic nerve, numerous ghost vessels, and extensive laser scarring. He also noted that the Veteran had a detached retina and inserted a long term gas tamponade. This procedure was later noted by a VA reviewer to be a pneumatic retinoplexy and cryotinoplexy. A hospital admission document showed that the Veteran was being treated by a private medical practice and that the hospital costs were borne by insurance and Medicare. There is no indication that the treatment was under VA direction or funding. In July 1995, the Veteran underwent a posterior chamber interocular lens placement at a VA Medical Center. The Veteran signed a consent form that advised him of risks such as infection, bleeding, the need for glasses, retinal detachment, and loss of eye. No complications were noted at the time, but in an August 1995 follow-up, the attending physician noted that the Veteran's glaucoma continued as indicated by high interocular pressure. He recommended a trabeculectomy to facilitate drainage as the pressure was not reduced by medication. The Veteran underwent this procedure at the VA Medical Center in November 1995. Follow-up treatment included medication for eye pain and to control interocular pressure. In March 1996, a clinician noted that the Veteran was blind in the left eye with no light perception. The ongoing diagnosis was chronic epitheiliopathy and bullous keratopathy. The treatment regime continued to the present with no further surgical intervention noted in VA records. The Veteran was provided eyeglasses, other visual devices, and instructions on techniques to manage the disability. The Veteran also experienced right eye disease, not pertinent to this claim, which imposed a reduction of field of vision to less than five percent. In October 2008, a VA ophthalmologist noted a review of the VA medical records since January 1995 and provided a detailed summary consistent with the records noted above. He noted that at the time of the start of the VA treatment in 1995, the standard of care was to attempt to stop vitreal bleeding with medication for three months prior to initiating the PRP procedures. It is not clear how this applies in the Veteran's case as he underwent the PRP in August 1994, twice in January 1995, and again while undergoing private surgery in April 1995. Nevertheless, the ophthalmologist concluded that the Veteran had a very good PRP spread and that the treatment was an appropriate follow-up to the initial retinal vein occlusion. The ophthalmologist noted that the Veteran had severe disease as was revealed during the private surgery as a pale optic nerve and flat retina that would limit his visual prognosis. He concluded that there was no apparent misoperation by VA. In July 2013, a VA optometrist noted a review of the claims file and concluded, "[i]t appears to this examiner, after examining all available material, that treatment were reasonable and to the standard of care...It appears that there [was] not negligence in this case, despite the poor outcome." He explained that laser treatment is performed to try to clear abnormal blood vessels and that the procedure can affect peripheral vision. He further explained that the rest of the Veteran's eye disease or deficits "... will prevent any vision and make any change to peripheral vision by the laser completly (sic) irrelevant." The Board concludes that compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disorder is not warranted because any additional or worsening disabilities incurred from 1995 to the present were either not proximately caused by VA treatment, were reasonably foreseeable complications of the treatment, or were progressions of the Veteran's existing severe eye disease unrelated to VA treatment. As a preliminary matter, VA treatment included the three PRP procedures in August 1994 and January 1995, the placement of an intraocular lens in July 1995, and follow up care with medication to limit eye pain and the high pressures associated with glaucoma. The attending VA physician in March 1995, Dr. J.M., declined to administer any further PRP procedures until the vitreous bleeding cleared, and when it did not do so, advised the Veteran to consider more invasive surgical options. However, VA did not order, perform, or fund the treatment and surgery performed by a physician in private practice in April 1995. The Board acknowledges the Veteran's report that this private treatment was directed by VA. However, the Board finds that his report is not credible as it is inconsistent with the records. Although a VA physician recommended that the Veteran consider surgery, there is no indication that VA directed or funded the surgery by a private physician at a private hospital. Hospital payment records refer to non-VA sources of funding. Therefore, the pars plana vitrectomy, pars plana lensectomy, 632 additional applications of endolaser photocoagulation, injection of steroids, and the pneumatic retinoplexy and cryotinoplexy were not performed by VA practitioners in a VA medical facility and consequences of these procedures are outside the scope of 38 U.S.C.A. § 1151 entitlement. Prior to the start of VA care in February 1994, the Veteran had experienced a retinal vein occlusion, neovascularization of the optic disk, and a cataract. VA treatment from February 1994 through March 1995 was limited to mediation and three PRP procedures in an attempt to clear the vitreous hemorrhages. Although unsuccessful, the Veteran did not incur an additional disability as a result of this treatment. Visual acuity was not degraded, and there was no notation of increased interocular pressure or progression of the cataract. Further, the Board places great probative weight on the opinions of the VA examiners in 2008 and 2013 that reviewed the entire history in detail and concluded that the VA PRP treatments were appropriate, timely, and performed in accordance with the standard of care. In this regard, such opinions considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Additionally, there were no notations in the record of any malfunction, misadjustment, or adverse consequences of the laser treatment even though it did not improve the recurrent symptoms. Additionally, contrary to the Veteran's contentions, the Veteran's VA physician, Dr. J.M., advised no further laser treatments in March 1995, and the only additional laser procedures were performed by his private surgeon as part of more complex surgery in April 1995. Further, the Veteran acknowledged the risks of PRP including loss of peripheral or central vision, detached retina, glaucoma, and failure and the need to repeat the treatment. The Veteran's ultimately degraded vision, detached retina, and glaucoma were events that were reasonably foreseeable both as progressions of existing disease and as acknowledged consequences of PRP. The VA optometrist in 2013 noted that the Veteran's of the features of severe eye disease were separate from the effects of PRP. The Board acknowledges the Veteran's lay reports of an incident involving a laser device used at an inappropriate high power. However, the Board finds that this lay report is not credible as it is inconsistent with the medical records that fail to show any such incident or any abnormal eye damage as a result of the three VA procedures. Although the procedures were not effective at terminating the vitreous bleeding, there is no evidence that the procedure caused additional damage to the eye due to negligence or an event not reasonably foreseeable. If that had occurred, the private surgeon would have likely noted the additional damage, Moreover, two VA examiners reviewed the records and also found no indication of misoperation of the laser equipment. Although not claimed by the Veteran, the Board considered whether the VA surgery in July 1995 to place a posterior chamber interocular lens was a proximate cause for an additional disability. Prior to this procedure, the Veteran had been diagnosed with a cataract, glaucoma, and a detached and repaired retina by the private surgeon in April 1995. The VA placement of the interocular lens was a follow-up to the lensectomy, correcting the aphakic condition. There is no evidence that this procedure caused an additional disability. Subsequent high pressures were progressions of glaucoma that was present prior to this VA procedure. As noted by the VA examiner in 2013, the Veteran's severe eye disease features other than the reduction of peripheral vision were the proximate cause for the eventual loss of sight in the left eye. The Board further finds that the Veteran is not competent to opine that VA's treatment of his left eye disorder was negligent because knowing and applying the standard of care with respect to eye surgeries requires specialized medical knowledge of the inner workings of the eye as well as the accepted principles of the medical community. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this case, as the Veteran does not possess the requisite knowledge regarding the inner workings of the eye or the standard of care regarding eye surgery as recognized in the medical community, he is not competent to render an opinion regarding the alleged negligence of his VA care providers. Therefore, the Board accords the Veteran's statements regarding the etiology of his claimed left eye disorder no probative value, as he is not competent to opine on such a medically complex question. Therefore, the Board finds that a left eye disorder did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable, and, as such, the Veteran is not entitled to compensation under the provisions of 38 U.S.C.A. § 1151. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107, Gilbert, supra. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs