Citation Nr: 1428992 Decision Date: 06/26/14 Archive Date: 07/03/14 DOCKET NO. 09-21 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to VA compensation under 38 U.S.C.A. § 1151 (West 2002) for a left eye disability, to include left eye droop / ptosis, claimed as residual of left eye surgery at a VA facility on March 29, 2006. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was previously before the Board of March 2011, when it was remanded for additional development. The Veteran testified at a Board hearing in December 2010. The transcript of this hearing is of record. FINDING OF FACT The Veteran did not suffer any new or additional disability associated with his left eye or left eyelid as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or as a result of 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 disability, including left eyelid ptosis, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Letters dated in December 2007 and March 2011 informed the appellant of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The December 2007 and March 2011 letters also provided notice concerning the evaluation and the effective date that could be assigned should service connection / 38 U.S.C.A. § 1151 benefits be granted, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The December 2007 letter was sent prior to the May 2008 RO rating decision on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes all pertinent identified medical records, including VA and private medical records. The Veteran's records in the custody of the Social Security Administration (SSA) were sought and, in June 2008, the SSA notified VA that "[a]fter exhaustive and comprehensive searches, we were not able to locate medical records. Further efforts will be futile." VA has assisted the Veteran by obtaining an appropriate VA medical opinion informed by review of the medical evidence to address the key medical questions pertinent to this appeal. The August 2009 VA medical opinion is of record. The Board finds that the August 2009 VA medical report adequately addresses the critical questions at issue in the context of the other medical evidence of record. The VA examination reports present sufficient discussion of the pertinent history, clinical findings, medical principles, and expert determinations informed by review of the claims file such that they present adequate and probative evidence in this case. The VA medical opinion addresses the question of whether the Veteran's left eyelid ptosis is due to the March 2006 VA surgery, and the substantial quantity of other medical evidence of record otherwise raises no indication of new or additional left eye disability following the surgery. 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 Board finds that the actions directed by the Board's prior remands have been adequately completed in this case. In particular, the Board notes that the claims file now contains the private medical records sought by the directives of the March 2011 Board remand. The Board finds that the actions directed by the prior remand have been completed in substantial compliance with the terms and purposes of those directives. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Analysis The Veteran underwent surgery to relieve pressure in his left eye (apparently associated with glaucoma) at a VA medical facility in March 2006. The Veteran contends that the surgery was improperly performed to the extent that it caused residual problems with his left eye featuring weakness and low drooping of his left eyelid. He seeks compensation under the provisions of 38 U.S.C.A. § 1151. Compensation under 38 U.S.C.A. § 1151 is awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was caused by VA medical treatment, 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 VA in furnishing the medical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C.A. § 1151. Under 38 C.F.R. § 3.361(c), a claim based on additional disability due to medical treatment must meet the causation requirements. To establish causation, the evidence must show that VA's medical treatment resulted in additional disability. Merely showing that a veteran received treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. Under 38 C.F.R. § 3.361(d), to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment, it must be shown that the treatment caused the veteran's additional disability; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Whether the proximate cause of the additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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 informed consent. 38 C.F.R. § 3.361(d)(2). The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in VA's electronic data storage systems, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. Evidence in the claims-file includes VA medical records documenting the March 2006 eye surgery and its aftermath. The VA medical reports show that the Veteran underwent the March 2006 surgery as part of treatment of primary open-angle glaucoma (referred to as "POAG" in some medical records). A document signed by the Veteran certifying informed consent to the March 2006 VA surgery indicates that he chose to proceed with the surgery "to lower the pressure in the left eye" with "no guarantees ... concerning the results of the operation or procedure." The March 2006 pre-operative diagnosis was glaucoma and the post-operative diagnosis was the same. The documentation of the March 2006 eye surgery does not document any pertinent events or concerns suggestive of unintended consequences or complications during surgery. The VA records document that on the day following the surgery the Veteran complained of "pain and not being able to open lid." In early April 2006, the Veteran was still experiencing some pain and bleeding and a report notes concern about "scarring and failure." A June 2006 VA report, amongst others repeating the same finding, shows that the "Bleb is not filtering and considered failed." June 2006 VA medical notes also show that the left eye surgery had resulted in "improvement" in the Veteran's problematic intraocular pressure. In September 2006, the Veteran complained of new floaters. A January 2007 VA report shows other eye symptoms including "intermittent floaters" which were consistent with the Veteran's history ("hx of floaters OS that were daily") and were "now improved but still intermittently appear." The Veteran reported "blurry" visual acuity worse in his right eye than in the left. An April 2007 VA report shows that the Veteran "expresses displeasure with prior surgery saying 'that was my good eye' and that 'the other doctor in Spartanburg said I didn't need surgery.'" The Veteran complained of his left eye "closing up on me when I'm just riding along." The Veteran essentially repeated these assertions in his December 2010 Board hearing testimony. The Board notes that the Veteran has subsequently identified his "other" pertinent medical provider "in Spartanburg" as Piedmont Eye Associates; VA has assisted the Veteran and obtained the records in the possession of that provider, but neither these records nor any other documentation shows that doctors have expressed any opinion pertaining to the necessity, performance, or consequences of the March 2006 VA eye surgery. The Board notes that the U.S. Court of Appeals for Veterans Claims has held that a lay person's statement about what a physician told him, i.e., "hearsay medical evidence," cannot constitute the medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that the only new pertinent left eye medical disability diagnosed in the Veteran's numerous medical evaluations of the left eye after the March 2006 VA surgery is left eyelid ptosis / drooping. There is no evidence nor clear contention of record that the Veteran has been diagnosed with any other pertinent new chronic disability (aside from the pre-existing glaucoma) of the left eye following the March 2006 VA surgery. The ptosis was first clearly noted in the medical reports beginning over a year after the surgery, in April 2007. The Veteran's December 2010 testimony at the Board hearing described his claim and contentions as featuring the left eye drooping symptoms of ptosis as the basis of his claim. The Veteran additionally responded to a question by mentioning, in passing, that his visual acuity is currently lesser than it had been prior to the surgery and was evaluated as having somewhat decreased in 2009 (2 to 3 years after the surgery); the Veteran's presentation did not clearly or specifically allege that this was a consequence of the VA surgery beyond the extent to which the ptosis / drooping interferes in his ability to see properly. The Board also notes that the Veteran's VA medical records make reference to complaints of floaters in his vision during consultations in the treatment of his glaucoma, but without any indication that such symptom was caused or aggravated by the March 2006 VA surgery; again, the Veteran's contentions have focused upon his belief that the left eyelid ptosis / drooping was caused by the VA surgery. In various statements and medical records, the Veteran has described pain in both eyes, sometimes indicated to be worse in the left eye than the right. An April 2009 private eye doctor consultation report shows that the Veteran described the eye pain to the private doctor and the doctor's impression / diagnosis (pertinent to the eyes) was glaucoma. Further April 2009 evaluation of the Veteran's symptoms by another eye specialist shows the Veteran's complaints of decreasing vision, "severe pain in back of both eyes more in the left," and "main complaint is that his left upper lid is droopy; this private eye specialist diagnosed glaucoma, cataracts, and ptosis. The specialist also noted the history of a failed argon laser trabeculoplasty ("ALT") without attributing any new symptoms or disability to this event. The private specialist explained that the Veteran has severe glaucoma with pressure too high in the right eye and slightly high in the left eye. The Board notes that the Veteran's private medical records indicate that he has been diagnosed with senile nuclear cataract problems, including as documented in an April 2009 private report, but there has been no suggestion in the evidence or the contentions that this condition is related to the March 2006 VA surgery. In sum, the Veteran's chronic left eye symptom complaints after March 2006 featuring pain, eyelid droop, and gradually decreasing vision have been considered by private and VA medical professionals in numerous evaluations specific to the left eye. These symptoms have been essentially attributed to the diagnoses of glaucoma, ptosis, and cataracts. There is no suggestion in the evidence or contentions that the Veteran's cataracts may be related to the March 2006 VA surgery. Regarding the glaucoma, severe glaucoma is documented to have existed prior to the March 2006 VA surgery, as reflected by the very occurrence of the surgery attempting to reduce his left eye intraocular pressure; the evidence indicates that the March 2006 VA surgery failed to accomplish its complete treatment objective, but there is no indication that it resulted in new or additional glaucoma. The Veteran's glaucoma has been closely medically monitored and documented following the surgery with no indication of new or more severe clinical signs in the left eye following the March 2006 VA surgery. The left eye droop, associated with the diagnosis of ptosis, is the medically shown new left eye problem that has manifested in the time after the March 2006 surgery; this ptosis has been the focus of the Veteran's primary contentions. The Veteran's contentions focus upon his belief that his current left eye droop, or left eye ptosis, was caused by the March 2006 VA left eye surgery. The question of whether the left eye ptosis is a consequence of the VA surgery, as well as further questions regarding whether the surgery involved any instance of fault or other pertinent failing, are medical questions beyond the competence of a lay person. The VA medical records show that the Veteran complained of being unable to open his eye in the time proximately following his surgery, with subsequent follow-up evaluation and symptom complaints including no suggestion of drooping or ptosis problems until April 2007, over a year after the surgery. The Veteran testified during the December 2010 hearing that the left eyelid drooping / ptosis was evident as soon as he took off the eye patch in the days following surgery. However, although the Veteran is competent to describe his recollection of observable left eyelid droop at that time, this testimony is contradicted by the contemporaneous VA medical records. The VA medical records show that the Veteran's left eye was examined on numerous occasions during the period of over a year between the March 2006 left eye surgery and the April 2007 documentation of left eye drooping / ptosis. The Board finds it reasonable to presume that the Veteran would have reported, and that medical professionals examining the left eye would have observed, the claimed ptosis if it had manifested more immediately following the March 2006 VA surgery. In this light, the absence of any suggestion of left eyelid droop / ptosis in the medical evaluation reports until over a year following the surgery contradicts the Veteran's testimony indicating that the ptosis was evident in the days following service. The Board finds that the contemporaneous medical reports are more probative that lay recollections concerning the onset of ptosis. Additionally, as discussed below, an August 2009 VA medical opinion explains that ptosis caused by mechanical injury during the surgery would have been immediately evident and would not have involved insidious onset and irregular severity over the following year. Further, as the lay testimony indicating onset of the chronic ptosis immediately following the March 2006 surgery and continuously thereafter is inconsistent with his report of symptoms to VA treatment providers during the year following the surgery, is contradicted by the absence of notation of ptosis during several left eye examinations during that period, and is presented in the pursuit of monetary benefits, the Board finds the testimony to be non-credible. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). His accounts of onset and continuity of symptomatology are self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). Accordingly, the Board finds that the account of symptoms and findings documented in the contemporaneous VA medical records in the time following the March 2006 VA surgery are the most probative indication of the Veteran's left eye symptoms and health during that time. The only competent medical opinion reviewing and evaluating the Veteran's contentions and the pertinent information of record is an August 2009 VA medical opinion. The VA examiner concluded that "the patient's current left eyelid ptosis is less likely than not related to his surgery he received on March 29, 2006." In explaining this conclusion, the VA examiner explains a distinction between the current ptosis, which first manifest approximately a year after the surgery, and the Veteran's inability to open his left eyelid in the immediate aftermath of the surgery. "It was confusing the fact that the patient, the day after the surgery, called and said he could not open his eye," but the examiner explains that this represented symptoms "secondary to the fact that he had so much pain and foreign body sensation. It was not a mechanical levator dehiscence, but it was a protective ptosis secondary to intraocular pain." The VA examiner explained: "That pain and inability to open the lid is secondary to all the foreign body sensation from the surgery," and "it is more comfortable for patients to keep their eyelid closed and not open it because of all the friction from the sutures and all the foreign body sensation." In other words: "patients have a protective ptosis the first day to first one to two weeks after a trabeculectomy surgery because they do not want to open their eyelid because it hurts." Significantly, the VA examiner makes clear: "This is not consistent with the type of ptosis the patient presented with one year later which was levator dehiscence ptosis. These types of ptosis are consistent [] more with age." The VA examiner further directed attention to the fact that the Veteran "had approximately eight exams following his trabeculectomy surgery and in no exam was the patient complaining of a ptosis and in no exam would any ptosis be seen by a physician." Rather, "[i]t was only when the patient presented in April of 2007 or one year after the event that he reported that his left eye was 'closing up on me when I'm just riding along.'" The VA examiner's medical impression is that the later developing ptosis is common to people with "a levator dehiscence, the ptosis is worse and comes and goes," and that this "is not consistent with what the patient is describing as a ptosis that was caused by surgery." The August 2009 VA medical opinion is specific and direct in explaining: "If a mechanical stretching of the levator occurred during the surgery, the patient would have had a ptosis on postoperative day one that would have stayed throughout the remaining postoperative period and would have been very evident to the patient." Significantly, "[t]his would not have been something that would slowly have progressed over a year later." The VA examiner's conclusion is clear: "the patient's left eye ptosis is not secondary to the fact that he underwent this ocular surgery.... the ptosis is just consistent with some normal age-related changes that happened roughly a year later and just happened to coincide with this time period." The Board notes that the VA examiner further stated that (1) "left eye ptosis was not caused by carelessness, negligence, etc. of the VA," (2) "left eyelid ptosis was not caused by or a result of VA failure to exercise what a reasonable healthcare provider would," and (3) "an eyelid ptosis is a reasonably foreseeable event to an eye surgery, not specific to the surgery the patient received but in any ocular surgery." The Board finds that the August 2009 VA medical opinion is probative evidence in this case. The opinion addresses the pertinent medical questions and the Veteran's contentions with thorough citation of the pertinent information of record and presents a persuasively explained rationale. The probative August 2009 VA medical opinion weighs significantly against the Veteran's claim because it concludes that the Veteran's left eye ptosis is not a consequence of the VA eye surgery; failure to establish a causal link between the claimed symptom or disability and the VA medical treatment prevents the Veteran from prevailing in this appeal for benefits under the provisions of 38 U.S.C.A. § 1151. Significantly, there is no competent medical opinion of record that disagrees with the August 2009 VA medical opinion, nor is there otherwise any competent medical evidence contradicting the factual predicates cited by the August 2009 VA medical opinion. The probative VA medical opinion from a trained medical doctor addressing this case clearly indicates that the Veteran's current left eye droop / ptosis was not a result of VA treatment. It follows that the Veteran's current left eye droop / ptosis was not caused by carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or as a result of an event that was not reasonably foreseeable; this conclusion is supported by the probative VA medical opinion and is not otherwise contradicted by any competent evidence of record. The VA medical opinion from a trained medical doctor explains the pertinent conclusions with reliance upon the correct factual history in pertinent regards and persuasive discussion of rationale drawing upon the author's medical expertise. The only contrary opinions of record are those of the Veteran (in various statements and at the December 2010 Board hearing ) and his spouse (in a May 2009 written statement and at the December 2010 Board hearing). The Board finds that the VA medical opinion, with an explained rationale from a trained medical doctor, is more probative and persuasive in addressing the complex medical questions in this case than the lay opinions of the Veteran and his spouse. Indeed, the Veteran's and his spouse's lay opinions on the questions of etiology and medical practices are not competent evidence in this matter. These matters are complex medical questions beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). The Veteran and his spouse are laypersons and they do not otherwise cite to supporting medical opinion or clinical or medical treatise evidence shown to pertain to the specific facts of this case. The preponderance of the probative competent evidence in the record that addresses the pertinent questions weighs against the Veteran's claim. The probative August 2009 VA medical opinion by a medical professional (who is competent to provide such an opinion) reflects familiarity with the pertinent facts of record and is accompanied by a rationale that refers to accurate factual information of record for support. The Board finds that the VA examiner's medical opinion, weighing against the Veteran's claim, is the most probative evidence in this matter. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a left eye disability, to include left eye droop. Accordingly, the claim must be denied. ORDER VA disability compensation under 38 U.S.C.A. § 1151 for a left eye disability, to include left eye droop, is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs