Citation Nr: 1631323 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 12-04 540 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability in the form of a right eye injury as a result of VA medical treatment. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran's spouse ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the VA RO in Columbia, South Carolina. Jurisdiction over this matter has since been transferred to the VA RO in Atlanta, Georgia. This appeal was previously before the Board in May 2015. As is discussed in greater detail below, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran does not have additional disability as the result of the procedure performed at a VA facility in July 2007. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a right eye injury as a result of VA medical and surgical treatment are not met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In the instant case, the Veteran has been provided with all appropriate notification, and he has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to this claim for benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. In May 2015, the Board solicited an opinion addressing whether the Veteran suffered additional disability as the result of his July 2007 surgical procedure. A VA ophthalmologist rendered the requested opinion in September 2015. The Board finds that the VA ophthalmologist reviewed the Veteran's claims file and past medical history and rendered an appropriate opinion consistent with the evidence of record. In June 2016, the Veteran's representative argued that the opinion was inadequate because it gave little "consideration to . . . the Veteran's contentions that his vision has worsened since the time of the surgery". While the Board has considered this argument, as will be discussed in further detail below, the evidence demonstrates that the Veteran first complained of impaired vision in February 2008, some seven months following his surgery, which contradicts his later claims of impaired vision immediately following the surgery. In sum, the Board finds the September 2015 opinion to be adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran's spouse participated in a hearing before the undersigned in March 2015, and a transcript of this hearing has been associated with the record. It is noted that the Veteran was blind and could not walk or talk as the result of a stroke, so his wife, who had been granted power of attorney, was permitted to provide testimony on his behalf. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Entitlement to Compensation Under 38 U.S.C.A. § 1151 The Veteran claims that he suffers from a visual impairment of the right eye as a result of the treatment that he received in association with a July 2007 cataract surgery. Compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished to the veteran when 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2014). To determine whether additional disability exists, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. 38 C.F.R. § 3.361(b) (2015). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2015). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or progress. 38 C.F.R. § 3.361(c)(2) (2015). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2015). 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; and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's-or, in appropriate cases, the Veteran's representative's-informed consent. 38 C.F.R. §§ 3.361(c), (d)(1) (2015). Turning to the facts in this case, at a June 19, 2007, eye consultation, it was noted that the Veteran was scheduled to undergo a removal of a cataract of the right eye. The Veteran underwent a preoperative evaluation on June 26, 2007, and he provided his informed consent for a removal of a cataract of the right eye at that time. The Veteran underwent an phacoemulsification (PHACO) of the posterior chamber intraocular lens (PCIOL) of the right eye on July 2, 2007. A preoperative anesthesia note indicates that the Veteran was awake and alert, and the risks of and plans for anesthesia were discussed with the Veteran. The Veteran was diagnosed both preoperatively and postoperatively with a visually significant nuclear sclerosis cataract of the right eye. A surgical note indicated that the Veteran had no complications from the surgery. The Veteran was discharged to the post-anesthesia care unit, and he was to be sent home when stable. The Veteran was discharged later that day. During a July 3, 2007, postoperative check, the Veteran was instructed to take NSAID and antibiotic eye drops every hour. The Veteran had no complaints and was noted to be doing well. On July 10, 2007, it was noted that the Veteran was status-post PHACO/PCIOL of the right eye, and he was doing well. The Veteran complained of a foreign body sensation, but he otherwise had no pain. The Veteran was directed to take NSAID and antibiotic eye drops and wear a shield/sunglasses at all times. On August 10, 2007, it was noted that the Veteran was status-post PHACO/PCIOL of the right eye. The Veteran was noted to be doing well. The Veteran's distance vision was clear. The plan was to begin to taper the Veteran off of his NSAID eye drops and eye antibiotics. A note indicated that the Veteran's right eye began to hurt as he tapered off of his NSAID eye drops, but the Veteran was informed by an ophthalmologist that this was a common occurrence. On August 13, 2007, it was noted that the Veteran was status-post PHACO/PCIOL of the right eye. The Veteran was noted to be doing well. The plan was to taper the Veteran off of his NSAID eye drops over the course of a week. In February 2008, the Veteran complained of trouble reading that was not improved with reading glasses. The Veteran complained of losing focus on every line. The Veteran was assessed with meibomitis, blepharitis, pseudophakia of the right eye, refractive error with left homonymous hemianopsia (LHH), and dry eye. In March 2008, the Veteran complained that he could not read and that "everything fade[d] out". The Veteran felt as if there was a film over his eyes, and he indicated that his depth perception was impaired. The Veteran was noted to have left hemianopsia of both eyes. The Veteran was assessed with meibomitis, blepharitis, pseudophakia of the right eye, refractive error with left homonymous hemianopsia (LHH), and dry eye. In April 2008, the Veteran indicated that he had experienced difficulty reading since February 2008. An April 2008 CT scan indicated that the Veteran had moderate cerebral atrophy with a right-sided infarction that was probably new. An April 2008 MRI examination showed no evidence of acute infarct, but there was atrophy and ventricular dilation in the right occipital region suggestive of an old infarct. In an April 2008 neurology consultation, it was noted that the Veteran complained of reading problems since February 2008 following an unremarkable cataract surgery. In June 2008, it was noted that the Veteran's vision reduction could be the result of split fixation with hemianopsia. The Veteran's LHH was noted to be the result of the cerebrovascular accident (CVA) that the Veteran had suffered. A June 2008 occupational medicine note indicated that the Veteran's LHH was due to his confirmed CVA. Vision in both of the Veteran's eyes was 20/60. An October 2008 eye note indicated that the Veteran continued to have trouble with his vision. The Veteran was again noted to have LHH due to a CVA. The clinician noted that the Veteran was having increased trouble with his vision partially due to wearing single-vision reading glasses for distance viewing. The Veteran had cognitive impairment and had difficulty keeping up with his glasses. The Veteran made a claim for benefits in June 2009, at which time he claimed that he had not had clear vision in his right eye since his surgery. In a June 2009 occupational therapy note, the Veteran and his spouse both requested an explanation of what had caused the Veteran's vision to change. The Veteran believed that he had not experienced a CVA, but he had instead suffered a trauma during his cataract surgery. It was again noted that the Veteran had LHH due to a CVA. In June 2009, a VA optometrist acknowledged that both the Veteran and his spouse had concerns about the Veteran's reduction in vision, and both believed that such impairment was the result of his cataract surgery. The optometrist indicated that she educated them "at length" about vision and the visual pathway, and how surgery in one eye would not result in missing vision in both eyes. In a June 2009 low vision consultation, the Veteran and his spouse both indicated that they did not have a good understanding of the Veteran's visual condition. An optometry resident explained that the Veteran's visual field defect was the result of a previous CVA to the right occipital lobe, as indicated by the April 2008 MRI report. In September 2012, the Veteran's spouse indicated that the Veteran lost his eyesight after his 2007 eye surgery. During a March 2015 hearing before the undersigned, the Veteran's spouse indicated that he experienced pain after his surgery and could not see clearly. Upon review of this evidence, in May 2015, the Board requested that a VA ophthalmologist review the Veteran's claim file in order to determine whether the Veteran suffered additional disability as the result of his July 2007 surgery. In September 2015, a VA ophthalmologist opined that it was less likely than not that the Veteran sustained additional disability as the result of his July 2007 cataract surgery. As a rationale for this opinion, the examiner indicated that the medical record showed that the Veteran underwent an uneventful cataract surgery in his right eye. This vision loss was not related to eye surgery or exacerbated by eye surgery. The Veteran's vision loss was instead related to the CVA documented in April 2008, which was an independent event related to his comorbid systemic conditions such as diabetes. Turning to a review of this evidence, the Board finds that the weight of the probative evidence of record is against a finding that the Veteran had additional disability as a result of his July 2007 surgery. The Board affords the opinion of the September 2015 ophthalmologist with particularly great probative weight because it was accompanied by a review of pertinent evidence in the claims file and a conclusion consistent with the evidence of record. Moreover, given the training required to become an ophthalmologist, the opinion is considered to have been provided by an expert in the field. The Board additionally notes that the Veteran's treatment records consistently associate his loss of vision with a CVA, rather than with his July 2007 cataract surgery, and clinicians have on multiple occasions attempted to explain the relationship between the Veteran's vision loss and his CVA to him. The evidence in favor of the Veteran having additional disability consists exclusively of lay statements regarding his symptoms. The Veteran is competent to report symptoms such as difficulty seeing because such symptoms are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the issue in this case is not whether the Veteran has vision problems, but rather what the cause of the problems was. This is a complex medical question as it involves the inner workings of the eye, which is something that is not readily observable, but which requires the use of sophisticated medical technology to diagnose. While the Veteran may believe that the impaired visual acuity in his right eye are related to his July 2007 procedure, as a lay person, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a particular disability such as a visual impairment. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Additionally, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran has alleged that he had problems with the vision in his right eye continuously from his cataract surgery. However, the contemporaneous medical evidence shows that Veteran did not complain to clinicians of symptoms relating to the July 2008 procedure, or complain of an alleged chronicity of symptoms following the procedure, until some seven months after the procedure occurred. This significant gap in time detracts from the Veteran's current contentions that he experienced from symptoms such as vision loss consistently since July 2007. In sum, the evidence fails to show that the Veteran has an additional disability as a result of his July 2007 cataract surgery, and therefore he has failed to pass the initial threshold for a claim of entitlement to compensation under 38 U.S.C.A. § 1151. The Veteran's claim is therefore denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability in the form of a right eye injury as a result of VA medical treatment is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs