Citation Nr: 1714486	
Decision Date: 05/03/17    Archive Date: 05/11/17

DOCKET NO.  13-10 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to compensation under 38 U.S.C.S. § 1151 for additional disability resulting from April and June 2009 VA right eye surgeries. 


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Ciardiello, Associate Attorney

INTRODUCTION

The Veteran served on active duty in the United States Navy from November 1973 to March 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Buffalo, New York.  

In October 2012 and April 2016, the Veteran testified before a Decision Review Officer and the undersigned Veterans Law Judge, respectively.  Transcripts of both hearings are of record.  

In August 2016, the Board requested an independent medical expert (IME) opinion, which was provided in October 2016.  The Veteran was provided with a copy of the IME opinion and was given 60 days in which to send any additional evidence or argument regarding the case.  See 38 C.F.R. § 20.903.  


FINDING OF FACT

The Veteran did not incur additional right eye disability as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment in April or June 2009, or as the result of an event not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C.S. § 1151 for additional disability resulting from April and June 2009 VA right eye surgeries are not met.  38 U.S.C.S. §§ 1151, 5107(b) (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.361 (2016).  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he has additional disability due to the negligence of VA during April 2009 and June 2009 right eye surgeries.  See April 2016 Board Hearing Transcript (Tr.) at 3.  He reports that his injury was caused by a laser that was too powerful and was used for too long.  Additionally, he reports that he only gave informed consent to operate on his left eye, not his right.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In order to warrant compensation under 38 U.S.C.S. § 1151 there must be a qualifying additional disability which was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C.S. § 1701(3)(A), and (2), and the proximate cause of the additional 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.  38 U.S.C.S. § 1151.  See also 38 C.F.R. § 3.361.  

In determining whether the Veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his 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 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).
Review of the VA treatment records reflects that the Veteran has a diagnosis of severe prolific diabetic retinopathy.  See March 2006 Medical Treatment Record at 46.  In December 2008, he was diagnosed with a vitreous hemorrhage in his right eye.  On April 15, 2009, the Veteran provided informed consent to have panretinal photocoagulation (PRP) performed on his right eye.  While the Veteran asserts that he did not provide informed consent for this surgery on the right eye, the record contains the Veteran's signed consent for the procedure, and the Board finds this contemporaneous evidence more probative than the Veteran's assertions to the contrary seven years after the surgery.  See April 15, 2009 VA Medical Treatment Records; see June 2015 Appellant's Brief; see also Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran).  

The Veteran's vision in his right eye at the time of the April 2009 surgery was 20/200, and at the time, he reported that vision in the right eye was like "looking through oil."  In June 2009, the Veteran had a pars plana vitrectomy, during which his right eye vision improved to 20/150.  However, three weeks later he developed a macula-off retinal detachment, and the retina was never able to be reattached due to a tremendous amount of scar tissue.  Id. 

In order to establish entitlement to benefits under 38 U.S.C.S. § 1151, the evidence must first show "additional disability" as a result of the treatment in question due to carelessness, negligence, lack of proper skill, error in judgment or an unforeseen event.  Here, following his VA surgeries, the Veteran's right eye vision worsened, he developed a cataract, and his retina eventually detached.  Thus, additional disability is conceded.  38 C.F.R. § 3.361(b).  

With regard to causation, as noted above the Board obtained an IME to address the medical question presented in this case.  (In this regard, the Board agrees with the Veteran's representative that the August 2011 VA opinion in this case cannot be utilized, as it was obtained by a physician involved in the Veteran's surgeries.)  The expert opined that no disability was sustained as a result surgical treatment due to carelessness, lack of proper skill, or error of judgment, and that the treatments offered and performed were "standard of care."
With regard to loss of right eye vision, the examiner found that while the Veteran's vision deteriorated from 20/200 vision before the April 2009 surgery to only light perception vision right before the June 2016 surgery, this deterioration was a result of the dense vitreous hemorrhage not being able to be fully treated because much of the retina was obscured.  In other words, the loss of vision was a natural progression of the hemorrhage, not the surgery itself.  The examiner also noted that the laser power used was not atypical, and did not make his vision worse.  The surgery was performed with a laser power of 500 mW, which the examiner opined was appropriate for this type of procedure, despite the Veteran's assertions to the contrary.  In this regard, the Veteran, as a lay person, is not competent to determine the appropriate laser power for his eye surgery.  See also April 2016 Board Hearing Tr. at 5 (the Veteran's representative notes that 500 mW "is a normal power setting.").  In terms of the June 2009 surgery, the examiner noted that the Veteran had light perception only right before the surgery, "which is not considered useful or ambulatory vision," and that his vision actually improved in the three weeks following surgery, before again returning to "no light perception," which is also "non-useful vision."  He noted that "[i]n terms of actual disability, there is no significant difference between these two acuities."  Indeed, the examiner noted that "[w]hile in this circumstance the patient did develop the no light perception vision . . . the vision likely would have declined further from the underlying tractional detachment and retinopathy that he had."  He also noted "[i]t was the proper judgment to offer vitrectomy to the patient following for the initial non-clearing vitreous hemorrhage as most often following this procedure vision improves."

With regard to his retinal detachment, the examiner noted that this occurs 4-17 percent of the time following vitrectomy, citing supportive medical literature, "and has the underlying severe proliferative retinopathy and tractional retinal detachment and the vitrectomy surgery itself as factors in terms of proximate cause.  That being said the records do not suggest that there was any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in terms of furnishing this care to the veteran."  

The examiner ultimately concluded there was "no carelessness, lack of proper skill or error in judgement."  In reaching this conclusion, the examiner indicated that there was no wide-filed surgical instrumentation available for the initial vitrectomy, as discussed in the operative report, but that "cry therapy was used in this case as it allows treatment of the periphery without visualization."  The examiner also indicated that "[o]ne may question whether the right eye could have been treated earlier with PRP (as the left one had been) . . . However, the left eye was treated three times and still did not have persistent (although less severe) episodes of hemorrhage due to the severity of his underlying disease," and "the patient did also miss an appointment for treatment during this period."  Notably, the examiner also stated that the Veteran was not compliant with head positioning instructions following the procedure, which are "essential for the success of this surgery."  

Finally, the examiner found the Veteran's additional disability was not the result of an event not reasonably foreseeable, noting that the retinal detachment was an "uncommon" but "foreseeable possibility."  He noted that the surgeon discussed the risks of the surgery, which "would encompass the risk of retinal detachment and eventual complete loss of vision."  As to the Veteran's eventual development of a cataract in his right eye, the examiner noted that this "almost always occurs after vitrectomy." 

Thus, the only competent opinion of record addressing the standard of care provided by VA comes from the October 2016 expert, and is against the claim.  In this regard, the Veteran does not possess the requisite medical expertise to assess whether or his additional right eye disability is attributable to his care provided by VA.  

Thus, based on the evidence above, including the competent and persuasive opinion provided by the October 2016 independent medical examiner, the Board finds that the proximate cause of the Veteran's additional right eye disability was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment, or an event not reasonably foreseeable.  

In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.S. § 5107(b).  However, as the preponderance of the evidence is against the claim, that rule is not applicable in this case.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Entitlement to compensation pursuant to the provisions of 38 U.S.C.S. § 1151 for additional disability resulting from April and June 2009 VA right eye surgeries is denied.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs