Citation Nr: 1636149 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 08-26 999 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas 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: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to October 1965 and from January 1971 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the VA RO. This appeal has previously been before the Board, most recently in September 2014, when it remanded the Veteran's claim in order to afford him with a hearing before the Board. 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). Of note, the Veteran cancelled his requested hearing in October 2014. FINDING OF FACT VA treatment, or lack of treatment, did not cause an additional visual disability in the Veteran's right eye. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a right eye disability 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. The Veteran has been provided with examinations and opinions addressing his right eye in December 2007, July 2010, August 2012, and February 2014. Particularly with respect to the February 2014 opinion, the Board finds that the examiner reviewed the Veteran's claims file and past medical history and rendered appropriate opinions consistent with the evidence of record. Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). The Board, therefore, finds the medical evidence, particularly the February 2014 opinion, to be adequate for the purpose of rendering a decision as to the issue on appeal. 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran requested a hearing before the Board, but in October 2014, the Veteran withdrew his request for such a hearing. 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 diagnosis and treatment of his right eye retinal detachment. 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, in April 2007, the Veteran complained to VA clinicians of experiencing black spots in his vision for the past two or three days. The Veteran indicated that he had experienced these symptoms "off and on" for ten years. The Veteran was referred to optometry and received a dilated examination of his eyes the next day. Slit-lamp examination revealed that the discs, macula, vessels, and periphery of the right eye were normal with bilateral vitreous floaters. The Veteran was diagnosed with a bilateral refractive error and cataracts. Dr. Putman, a private optometrist, indicated that he saw the Veteran on July 30, 2007, and found retinal detachment in the right eye at that time. On August 3, 2007, the Veteran reported to VA that he had experienced failing vision for a few months, and the Veteran's primary care physician referred him to VA's eye service. On August 15, 2007, the Veteran complained of an acute loss of vision in his right eye. The physician indicated that it was unclear how long the Veteran's right eye vision had been poor. The Veteran reported that his vision had gradually worsened over the past year, and a private physician told him approximately two weeks before that he had suffered a retinal detachment. The Veteran was noted to have a bullous retinal detachment with a medium-size horseshoe tear superonasally, and the macula was off. The Veteran was upset about the delay in VA's diagnosis of the detachment. On August 28, 2007, the Veteran underwent a repair of the retinal detachment in the right eye, via scleral buckle placement with pars plana vitrectomy, membrane peel, endolaser photocoagulation, gas fluid exchange, and silicone oil injection. A postoperative note indicated that the Veteran's surgery occurred without complication. In August 29, 2007, September 4, 2007, and September 19, 2007 ophthalmology notes, the Veteran was noted to be "doing well" following his surgery. The Veteran was diagnosed with a chronic rhegmatogenous retinal detachment of the right eye. It was noted that the Veteran had a total detachment/macula off with a horseshoe tear present superonasally. In a December 2007 eye examination, it was noted that the Veteran had a loss of vision in his right eye due to a detached retina. The examiner noted that the Veteran's detached retina was more likely than not caused by his high myopia. The Veteran additionally had cataracts in his right eye as a result of his advancing age, which had been aggravated by his retinal detachment procedure. In January 2008, the Veteran asserted that he had been "misdiagnosed and was sent for cataracs [sic] instead of detached retina". The Veteran stated that a civilian doctor had informed him that he "had gone too long to correct [his] vision". In a separate January 2008 statement, the Veteran indicated that he had complained to VA of vision problems for the previous three years, but had only been told that he had cataracts. The Veteran said that a private physician diagnosed him with a detached retina, but by the time he followed up on it with VA, the retina had been detached for too long to repair the vision. In July 2008, the VA optometrist who conducted the December 2007 eye examination indicated, without further explanation, that there was no carelessness, negligence, lack of proper skill, error in judgment or any similar instance of fault on the part of the VA clinicians who had treated the Veteran's right eye condition. In August 2008, slit lamp examination indicated that the Veteran had nuclear sclerotic cataracts and posterior subcapsular cataracts of the right eye. The retina was flat under oil with a good buckle effect. The clinician explained to the Veteran that because his best vision following the repair of the retinal detachment was 20/200, this was possibly the best vision in the right eye. The Veteran was approved for cataract extraction with the intraocular lens, followed by pars plana vitrectomy and silicone oil removal. In October 2008, it was noted that while the Veteran's retinal status was stable, he had developed a cataract. The Veteran was approved for cataract surgery and silicone oil removal. The risks, benefits, and alternatives were carefully explained to the Veteran, and he consented to the surgery. A November 3, 2008, preoperative note indicated that the Veteran had a history of retinal detachment repair with silicone oil and cataract of the right eye. The preoperative diagnosis was a cataract of the right eye and status-post retinal detachment repair of the right eye. The planned procedure was a cataract extraction with intraocular lens implantation of the right eye, and a pars plana vitrectomy with silicone oil removal of the right eye. On November 4, 2008, the Veteran underwent a phacoemulsification with intraocular lens and silicone oil removal. The intraocular lens/bag complex was displaced inferiorly. There were no surgical complications. On November 5, 2008, and November 12, 2008, the Veteran was noted to be doing well. In December 2008, it was noted that as a result of the Veteran's poor visual potential in the right eye, he was to be observed only. The Veteran participated in a hearing before RO staff in February 2009, at which time he reported having complained to VA clinicians for four or five years before the August 2007 surgery that something was wrong with his eye. The Veteran indicated that VA had attributed his symptoms to cataracts. VA only diagnosed the Veteran with a detached retina after he presented proof of his condition to VA clinicians from a private optometrist. The Veteran underwent an additional VA examination in July 2010, at which time the examiner noted that he had experienced a spontaneous retinal detachment in his right eye in 2007, most likely due to his high myopia. An attempt was made to repair the detachment, but the Veteran's vision did not improve. The Veteran subsequently had silicone oil removed from the eye in November 2008. In August 2011, the Veteran's representative indicated that he was not contending that the VA surgical procedures performed to repair his right eye retinal detachment were careless or negligent. The Veteran indicated that he was told by the surgeon prior to the surgery that the progression of his detached retina was particularly severe and the prognosis for full restoration of vision to his right eye was uncertain. The Veteran instead contended that his primary care physician had refused, for approximately four years, to refer him to an eye specialist for a thorough diagnosis of his complaint of deteriorating vision in his right eye. The Veteran's representative argued that the four-year period of repeated visits and complaints of deteriorating vision were met only with the primary care physician's unqualified diagnosis and insistence that the Veteran suffered only from cataracts. This allowed the Veteran's detached retina to go undiagnosed and untreated. The Veteran's representative asserted that the four-year period of neglect contributed to the irreversible severity of his condition, resulting in the Veteran's blindness in his right eye. In July 2012, a VA physician found no fault with the care that the Veteran had received from VA. As a rationale for this opinion, the physician noted that the Veteran presented to VA with handmotion-only vision in the right eye with a macula off retinal detachment. Following the August 2007 and November 2008 surgeries, the Veteran's vision had improved to 20/400. The physician noted that the Veteran's vision was better at his last visit than at the time he presented with handmotion-only vision. In August 2012, a VA examiner acknowledged that the Veteran's vision had worsened after his 2009 lens displacement, but concluded that the VA physician exercised appropriate judgment and provided reasonable care to the Veteran in a timely manner, though the examiner did "not have all necessary information to make a final judgment call." In February 2014, an additional ophthalmologist reviewed the Veteran's claims file and opined that the diagnosis and treatment of the Veteran's right eye disability was timely. As a rationale for this opinion, the examiner noted that the date of onset of retinal detachment was unknown, which was frequently the case. The examiner noted that the Veteran was a myope, which made him more likely to develop a spontaneous onset retinal detachment. Once the diagnosis was available, the timeliness of the Veteran's treatment was within the standard of care. The examiner noted that a VA physician made an optometric referral when the Veteran offered visual complaints, and there was no retinal detachment in April 2007. The examiner further opined that VA provided reasonable care from 2002 to 2007, noting that a prompt evaluation by the Veteran's primary care provider resulted in a prompt optometric consultation. The examiner indicated that there was no evidence to support a need for escalation of care or a higher frequency of encounters, and there was no reason to believe that additional care would have changed the outcome. The care provided to the Veteran was within the standard of care. The examiner also found that the Veteran's additional right eye disability was inevitable. As a rationale for this opinion, the examiner noted that from the time of diagnosis for retinal detachment with macula off, the prognosis was understood correctly to be poor. Furthermore, acceleration of cataract formation is a well-known complication of retinal/vitreous surgery which, when it occurred, was managed in a fashion well within the standard of care. Turning to a review of this evidence, as a finder of fact, the Board must determine both the weight and credibility of all the evidence of record. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Veteran primarily claims that VA's negligence in timely diagnosing and treating his retinal detachment led to his severely impaired vision. Thus, as a threshold issue, the Board finds that the Veteran suffered an "additional disability," in the sense that his visual acuity worsened from 20/40 at the time of an April 2007 VA optometric evaluation to handmotion only vision or 20/400 vision following the August 2007 diagnosis of retinal detachment and subsequent corrective surgeries. With an "additional disability" established, the next question for consideration is whether VA's medical treatment caused the Veteran's worsened visual acuity. The Board has closely reviewed the evidence of record, and it cannot find that the evidence supports a finding that VA's treatment or failure to timely diagnose or properly treat the Veteran led to his retinal detachment. The Board affords the opinion of the February 2014 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 Board considers the opinion to have been provided by an expert in the field. The evidence in favor of VA having caused the Veteran's additional disability consists exclusively of lay statements from the Veteran and his representative. 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 such problems was. This is a complex medical question because it involves the inner workings of the eye, which is something that is not readily observable, but which instead requires the use of sophisticated medical technology and training to diagnose and analyze. 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, for example in August 2011, that VA physicians "refused" to refer him for an eye specialist for "four to five years". Statements such as this one are inconsistent with the medical evidence of record, which shows that when, for example, the Veteran complained of visual difficulties in April 2007, he received a dilated-eye examination the next day, which revealed no retinal tear. While the Board is sympathetic to the pain and impairment that his right eye retinal detachment has caused, when it closely examines the medical evidence of record, it finds that the weight of the evidence supports a finding that retinal detachments often happen spontaneously in those, like the Veteran, who have high myopia. In sum, the evidence fails to show that the Veteran has an additional visual disability that was caused by VA treatment, including as a result of VA's alleged failure to timely diagnose and treat his right eye retinal tear, and 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