Citation Nr: 1604487	
Decision Date: 02/08/16    Archive Date: 02/18/16

DOCKET NO.  12-25 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to compensation for residuals of laser eye surgery under 38 U.S.C.A. § 1151 due to VA treatment.


REPRESENTATION

Veteran represented by:	Blinded Veterans Association


WITNESSES AT HEARING ON APPEAL

Veteran, C.L., T.C., S.M. (observer); C.P. (observer)


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran served on active duty from April 1948 to March 1950.

This appeal to the Board of Veterans' Appeals (Board) is from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Togus, Maine.

The Veteran testified at a videoconference hearing in December 2012 before Judge Alan S. Peevy, Chairman, who has since retired.  The Veteran was offered another hearing, where he declined.  The transcript of that hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2015).


FINDING OF FACT

The Veteran does not have an additional disability, blindness, that was proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment.


CONCLUSION OF LAW

The criteria for compensation benefits for residuals of laser eye surgery are not met.  38 U.S.C.A. § 1151 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.102, 3.159, 3.303, 3.358, 3.361(b), 3.800 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant.  Pellegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3).

Through a letter dated in September 2009, the RO notified the Veteran of the legal criteria governing claims for compensation benefits under 38 U.S.C.A. § 1151 and service connection, which served to provide notice of the information and evidence needed to substantiate the claim.

VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them.

Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each of the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

There is no indication that any additional action is needed to comply with the duty to assist the Veteran.  The claims folder contains copies of all pertinent VA treatment records, including the informed consent that was obtained on August 6, 2009.

The Veteran was also afforded a December 2009 VA opinion and a March 2014 specialist medical opinion in connection with the claim on appeal, reports of which are of record.  These opinions are predicated on a review of the history and consideration of the Veteran's complaints and symptoms.  However, the Veteran asserts that the December 2009 medical opinion is inadequate in that the December 2009 VA examiner gave a general oversight of the Veteran's eye history.  The medical opinion did not note the dates of surgery with his acuities before and after each surgery to explain his rationale.  The medical opinion did not address the sudden decrease in vision after surgery; or answer if the Veteran's diabetic retinopathy was a risk factor in surgery and would the surgery have played a role in the decrease in vision.  (April 2013 Written Statement).  The Board assigns little probative value to the December 2009 VHA opinion and assigns significantly more probative value to the March 2014 specialist opinion.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c) (2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the Board hearing, the Veterans Law Judge that conducted the hearing, now retired, set forth the issues to be discussed at the hearing and 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.  In addition, the claim was remanded to ensure that all information and evidence necessary to decide the claim was obtained.  Accordingly, any deficiency in the conducting of the hearing is nonprejudicial.

II.  Analysis of the 1151 Claim

Under current provisions of 38 U.S.C.A. § 1151, compensation shall be awarded for a Veteran's qualifying additional disability in the same manner as if such additional disability was service-connected.  A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by VA, and the proximate cause of the disability is carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable.  38 U.S.C.A. § 1151(a).

To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, upon which the claim is based to the Veteran's condition after such care or treatment has stopped.  38 C.F.R. § 3.361(b); see also 38 C.F.R. § 3.358(b) (1).

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability.  38 C.F.R. § 3.361(c) (1); see also 38 C.F.R. § 3.358(c) (1).  The proximate cause of a disability is the action or event that directly caused the disability, 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability (as explained in paragraph (c) of this section); and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider.  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.  38 C.F.R. § 3.361(d)(2).

Here, the Veteran has a history of advanced glaucoma in both eyes and only had light perception in his left eye.  A VA physician prescribed laser treatment for his right eye in order to preserve vision in that eye as he had "bleeders."  The Veteran asserts that the resulting loss of vision in the right eye (detachment and deformity) of his retina was not explained to him (lack of informed consent) by the doctor who performed the laser and was an unforeseen consequence.

VA treatment records from VA Medical Center in Togus from October 2005 through August 2009 reflect a diagnosis of diabetic and hypertensive retinopathy along with end-stage glaucoma bilaterally in September 2008.  There was evidence of small area of prior retinal laser identified inferiorly. 

Outpatient treatment notes from VA Medical Center in Boston from November 2008 through September 2009, included a signed consent form dated on August 6, 2009 for treatment/procedure regarding a procedure to the right eye.  Known risks of this treatment/procedure were but not limited to: loss of vision; infection; bleeding ptosis (drooping of eyelid); diplopia (double vision) from muscle imbalance; macular pucker (formation of scar tissue); retinal detachments cataract (condition that causes clouding in the eye) formation; cystoid macular edema; macular dysfunction glaucoma; dry eye syndrome; cornea clouding failure to heal properly, requiring additional surgical procedures; pain; irritation; or unsightly cosmetic deformity surgical removal of the eye; or its content risks of anesthesia, including stroke, coma, and death.

The Veteran underwent an epithelium scraping for retinal detachment surgery in October 2009 at Jamaica Plains VA Medical Center in Boston.  

A March 2010 RD denied the 1151 claim as there was no neglect or error found with the procedure of the right eye.  

Outpatient treatment notes from VA Medical Center in Togus from August 2009 through August 2012 revealed visual acuity of the right eye was hand motion only and that he was legally blind.

The Veteran underwent laser surgery to eliminate the effects of disease or new blood vessels in the retina (panretinal photocoagulation, PRP) on November 25, 2008 at the Boston VA Medical Center.  Informed consent was obtained.  Documentation dated February 10, 2009 showed status post-right eye PROP and reported worsening vision in the right eye.  Documentation dated August 6, 2009 showed that he underwent a vitrectomy in the right eye to treat blood or other opacities in the vitreous of the eye.  Documentation dated September 22, 2009 showed that he underwent a vitrectomy in the right eye to treat blood or other opacities in the vitreous of the eye.  A September 2009 treatment record showed that he underwent a para plana vitrectomy due to disorders of the back part of the eye, including problems with the retina.  Documentation dated in December 2009 showed that he underwent an intravitreal injection of bevacizumab in the right eye and had a diagnosis of postoperative uncontrolled glaucoma with status post partial silicone oil removal and valve placement on January 2010.

A December 2009 VHA medical examiner opined that he could not find any negligent actions after reviewing all of the pre-op and post-op notes.  The outcome of the surgery was not what was hoped for and the complications were most likely due to the diabetes.

A March 2014 independent medical opinion stated "I do not believe the VA eye surgeries caused any additional disability to the patient.  Unfortunately, he did not have a positive visual outcome despite all the treatments that were done in attempt to stabilize the eye.  I suspect the vision loss due to the multiple ocular comorbidities that suffers from, including advanced glaucoma (open angle and neovascular), hypertensive retinopathy, proliferative diabetic retinopathy, and generalized retinal ischemia.  All of these conditions [could] compromise ocular blood flow, which [could] lead to retinal and optic nerve ischemia and guarded visual outcomes.  The limited vision that has unfortunately resulted [was] within the scope of the informed consents that [were] typically done with ocular procedures."  

In support of the opinion, the independent medical examiner gave a brief summary of the Veteran's course and noted that he had a history of advanced glaucoma in both eyes prior to initial treatments.  He stated that: 

He also had longstanding vision loss in the left eye (light perception) which was stated to possibly have been related to a retinal vascular occlusion.  He was noted to have neovascularization of the retina in the right eye in 2006.  The etiology may have been related to proliferative diabetic retinopathy or any other etiology of retinal ischemia (e.g. ocular ischemic syndrome).  As this was his only functioning eye, laser treatment was initiated to attempt to preserve vision.  Visual acuity was 20/30 on 8/27/2007, which was 2 weeks after laser treatment, and based on the medical record, the retina was stable.  There was a period of time from October 2007 to June 2008 where the patient was lost to follow-up.  Glaucoma exams noted advanced optic nerve cupping in the right eye.

Additional progression of retinopathy and retinal neovascularization was noted in early 2009 and he was referred to Boston for additional laser treatments.  Review of patient statements describes pain during the laser procedure.  This is not uncommon with panretinal laser treatments and is not a cause of direct central vision loss.  In fall 2009, there appeared to be continued progression of disease and development of vitreous hemorrhage and tractional retinal detachment.  Both of these are complex disease processes that often require surgical intervention.  Two vitrectomy surgeries were performed in October and December of 2009.  After the first surgery, visual acuity was recorded as 20/80 in the right eye on November 30, 2009.

Having a history of glaucoma and advanced and persistent neovascularization may have led to the development of neovascular glaucoma, and treatments with intravitreal bevacizumab and incisional surgery with Ahmed valve are certainly reasonable treatments for this.  He was also noted to have delayed healing of the corneal epithelium throughout the postoperative period, which is also not uncommon with diabetic patients.

When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  A medical opinion that contains only data and conclusions is not entitled to any weight.  "It 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."  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Here, the examiners reviewed the claims file.  There are no findings of negligence or carelessness, or lack of proper skills or judgment in the medical treatment provided to the Veteran.  The Board finds the March 2014 specialist opinion more probative than the December 2009 VHA medical opinion because it more directly answered the Board's questions and contains sound reasoning; it is consistent with the medical records, and is afforded significant probative value.  

Neither the Veteran nor his representative submitted a medical opinion that shows that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider), despite stating that he would submit a medical opinion in his April 2011 Notice of Disagreement.

The Veteran testified that he was sent to Boston to have laser treatment.  He stated that something went wrong towards the end of the treatment as the pain was intense.  (Hearing Transcript p. 2).  He had 20/25 vision to being blind from the surgery which he considers as unforeseen circumstance.  (December 2012 Hearing Transcript pp. 3, 6).

The Board recognizes that the Veteran is competent to report first-hand experiences of loss of site.  However, he (and his daughter and wife) as a lay person, is not shown to have the medical expertise to offer an opinion as to the underlying etiology of any current claimed residuals of laser surgery.  Therefore, the Board ultimately places far more weight on the March 2014 specialist opinion, discussed above, which considered the nature and circumstances of his medical treatment at a VA facility, but concluded carelessness, negligent, lacking proper skill, error in judgment, or similar instance of fault.  And that the limited vision that has unfortunately resulted from the surgery was within the scope of the informed consents that were typically done with ocular procedures.

In short, the March 2014 independent specialist opinion, which is the most competent and probative evidence, weighs against a finding of any additional disability related to improper care or an unforeseen event related to VA medical treatment of laser eye surgery.  

The Board is grateful for the Veteran's service and very sympathetic to the Veteran's claim and particular circumstances; however, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503 , 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416 (1994).  VA is bound by the applicable law and regulations as written.  38 U.S.C.A. § 7104(c)  (West 2014).  The Courts have held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). 

Given all of the above, the preponderance of the evidence is against the Veteran's claim and so it must be denied.  


ORDER

Entitlement to compensation for residuals of laser eye surgery under 38 U.S.C.A. § 1151 due to VA treatment is denied.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs