Citation Nr: 1343090 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 08-35 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for glaucoma, as a result of treatment received from a Department of Veterans Affairs medical facility. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who served on active duty from November 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a formal RO hearing in Indianapolis, Indiana in July 2009. This transcript has been associated with the file. The case was remanded in January 2012 and has been returned for review by the Board. FINDING OF FACT The probative evidence of record fails to support the Veteran's claim that he sustained glaucoma, or any other disability 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 glaucoma due to the use of incorrect eyeglasses are not met. 38 U.S.C.A. § 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") Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a January 2007 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The VCAA notice letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), private treatment records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. The Veteran was afforded a hearing before a Decision Review Officer (DRO) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the 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. In this case, the DRO set forth the issue to be discussed at the hearing. The Veteran's representative asked questions pertinent to the requirements for compensation benefits under the provisions of 38 U.S.C.A. § 1151, and the case was remanded to obtain evidence that might substantiate the claim. See July 2009 hearing transcript and January 2012 Board decision. Thus, any error in this regard is nonprejudicial. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing officer complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In regard to the Board's January 2011 remand directive, he was provided VA compensation examination (in February 2012) for medical opinion concerning whether the claimed disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The Board notes that the Veteran's representative in the October 2013 Appellate Brief requested that the Board remand the case for further explanation regarding the medical opinion from the VA physician that conducted the February 2012 examination. However, as explained in more detail below, the findings were reported in a manner and format enabling the Board to address the elements needed to show entitlement to benefits. The Board finds that the VA examination is more than adequate, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its January 2012 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran contends that he was given the wrong prescription for his eyeglasses when he was treated at the VA Medical Center in 2005. He relates that he used these improper eyeglasses for a year to 14 months and developed a loss of balance, and began seeing white flashes. He says that when his eyes were rechecked by VA he was told "there was a good chance" that his use of eyeglasses with the wrong prescription caused his glaucoma. See July 2009 Hearing transcript. 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). 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). 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). 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). 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). Review of the claims folder shows that the Veteran sought new eyeglasses through VA in February 2003. The diagnoses included hypermetropia, anisometropia, and presbyopia. VA outpatient records dated in March 2005 show that he was routinely examined and given a new prescription for eyeglasses. During VA optometry examination in September 2006, the Veteran reported that something was wrong with his spectacles. VA clinical notes of Dr. D.S. noted that the previously issued spectacles were made incorrectly. The Veteran was issued new glasses. On follow up VA examinations the Veteran complained of watering eyes. In March 2007, glaucoma was diagnosed. As noted above, a hearing was held before a DRO in July 2009. The Veteran reported his medical history and current symptoms and diagnoses. He stated that he was prescribed eyeglasses in 2005, which he wore for approximately 14 months. He felt that the eye glasses were pretty strong and caused disequilibrium. He also noted intermittent white flashes. He returned to VA and was informed that he was previously issued spectacles that were made incorrectly. He was given another pair, free of charge. The VA rechecked his eyes and noticed that his nerves had been 'tore out". He was told that this resulted from the wrongly prescribed eyeglasses which caused his eyes "off the normal axis." Eventually, glaucoma was diagnosed. He was told by the treating VA physician, Dr. D.S. that his glaucoma was caused by his incorrect prescription. In February 2012, the Veteran was afforded a VA compensation and pension examination pursuant to his claim. The VA examiner noted that he reviewed the claims file and excerpts from medical information concerning glaucoma. He noted that the Veteran was given eyeglasses that were not appropriate for his right eye. This caused blurred vision and asthenopic symptoms. It was also noted that the asthenopic symptoms were transient. However, this mistake and subsequent symptoms did not cause or aggravate the Veteran's glaucoma or cause any other additional eye disability. Based on the findings in the Veteran's medical records which included descriptions of the appearance of his optic disks, visual fields, and ocular coherence tomography, the examiner concluded that the Veteran most likely has glaucoma which may be classified as normal tension glaucoma. In providing his rationale the physician noted that the Veteran's risk for glaucoma is increased by his race and positive family history (mother) of glaucoma. He further noted that his opinion was based on his training as an ophthalmologist which included studying many textbooks and medical articles addressing glaucoma as well as his experience treating patients with glaucoma. 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 incurred any additional disability as a result of the incorrect lens provided at the Crown Point VA Medical Center (VAMC). While the Veteran's VA treatment records show he currently has glaucoma, there had been no probative medical evidence presented that would support his contention that these events were the result of receiving the incorrect eyeglasses from VA. Specifically, there is no probative evidence to show that any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care proximately caused any additional disability or the permanent aggravation of any disability. 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 glaucoma. The Court has repeatedly held that laypersons are competent to describe symptoms of which they have first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, competency must be distinguished from weight and credibility, which are factual determinations, going to the probative value of the evidence, for the adjudicator. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). At his hearing the Veteran reported that due to his wearing of incorrect eyewear his nerves in his eyes were torn out and that Dr. D.S. informed him that his glaucoma resulted from the incorrect prescription. First of all, the Court has held that such hearsay medical evidence, as transmitted by a lay person, is not sufficient to support a claim of service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also Kirwin v. Brown, 8 Vet. App. 148, 153 (1995). Secondly, in reviewing the clinical notes of Dr. D.S. although he noted that the Veteran had been given incorrect lens for the right eye, there is nothing in Dr. D.S.'s treatment notes to suggest that the Veteran could or would sustain any type of damage as a result of the wearing of the incorrect lens. Certainly, there is no evidence to conclude that the nerves in the back of the eyes had been torn. The Board gives greater probative weight to the report and opinion of this evaluating VA physician because of the consideration of the Veteran's pertinent medical and other history-as accomplished by reviewing the evidence in the claims file, but more so based on the discussion of the underlying rationale of the opinion, which instead is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). This examiner also has medical expertise, which is another relevant consideration adding to this opinion's greater probative value. Moreover, this examiner's opinion is mostly supported by the clinical evidence of record, which, as mentioned, fails to show any relationship between the wearing of incorrect eyeglasses and the later developed disability. As referred to above, the Veteran's representative requested that the Board remand the case for an addendum from the VA ophthalmologist that conducted the February 2012 examination. The representative pointed out that the examiner noted that VA ophthalmology treatment, including issuing the wrong prescription eyeglasses, did not cause glaucoma or any other additional disability other than transient asthenopic symptoms. However, the representative contends that the examiner did not properly explain what those other symptoms were and requested that the Board remand the case for further explanation. The Board finds that the examiner's conclusion clearly indicated that any additional symptoms including asthenopic were transient in nature and therefore from this definition were not chronic in nature. The Board does not find that there were any implications from this statement that there may have been other additional permanent symptoms subject to service connection. Therefore, the Board does not find a need for further explanation. 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 glaucoma due to the incorrect eyewear. 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). ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for glaucoma, as a result of treatment received from a Department of Veterans Affairs medical facility is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs