Citation Nr: 1801487 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-23 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and Ms. S.F. ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from April 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2016, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record. This case was last before the Board in February 2017, where it remanded the matter for further development. The RO continued the denial of the claim, as reflected in the October 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further review. The Board notes that there was substantial compliance with its February 2017 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has any additional disability that is proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing the March 2000 laser eye surgical treatment, or that any additional disability is due to an event not reasonably foreseeable in furnishing that treatment. CONCLUSION OF LAW The criteria for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for left eye blindness have not been met. 38 U.S.C. §§ 1151, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA's duty to notify was satisfied by a letter sent to the Veteran in April 2013. The letter informed him of the evidence required to substantiate the claim, and of his and VA's respective responsibilities in obtaining this necessary supporting evidence. The letter also advised him of how a "downstream" disability rating and effective date are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the claim was subsequently readjudicated in the May 2015 Statement of the Case (SOC), as well as in additional SSOCs. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify has been satisfied. Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, as well as his own written contentions. Neither the Veteran nor the Veteran's representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained. Furthermore, the Veteran was afforded VA examinations and opinions were provided in support of his claim. Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Compensation under 38 U.S.C. § 1151 A Veteran may be awarded compensation for additional disability, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished by VA, and the proximate cause of the disability is attributable to: (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) the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether the veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to his condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). For claims, as here, filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant conversely is not required to show fault or negligence in medical treatment. 38 C.F.R. § 3.358. See also Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). But as the Veteran in this case filed his claim after that delimiting date, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). 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 continuation or natural progress. 38 C.F.R. § 3.361(c)(2). 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 that: (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or, (2) 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(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. 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 the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Regarding the latter, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a Veteran with the same characteristics as the Veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). Informed consent is the freely-given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the health record. Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32(d). All reasonable doubt material to these determinations is resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons and bases for rejecting evidence favorable to him. Turning now to the relevant contentions and facts, the Veteran contends that he is entitled to VA compensation benefits under the provisions of 38 U.S.C. § 1151 as a result of sustaining left eye blindness caused by laser eye surgery in March 2000. A medical opinion was provided in March 2015 in connection with the Veteran's claim. Following a review of the evidence of record, the VA physician concluded that the Veteran did not suffer additional disability as a result of VA care. Also, the VA physician indicated that from September 2000 through December 2002, the medical records "are basically negative for documentation of any serious eye condition caused by surgery in March 2000." Further, she noted that a December 2002 eye clinic note does not show that the Veteran was blind at this time from a surgery in March 2000. Lastly, the VA physician opined that medical records suggest that the Veteran's worsening vision was not a result of VA care, but rather a result of severe diabetic retinopathy and macular ischemia. However, due to new evidence that was associated with the claims file after the March 2015 medical opinion was submitted, the Board previously found that this medical opinion was inadequate for adjudication purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based upon inaccurate factual premise has no probative value); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion). Another VA medical opinion was provided in May 2017. Following a meticulous review of the record, the VA optometrist opined that it is with reasonable medical certainty and without resorting to speculation that the decrease in vision in the left eye was due to diabetic macular edema and not due to the laser surgical treatment to the left eye on March 28, 2000. Specifically, the VA optometrist indicated that additional disability, including left eye blindness, was not sustained as a result of the surgical treatment. The VA optometrist referenced medical studies, which were included with the opinion, showing diabetic macular edema to be the most common cause of decrease in vision in diabetes and a major cause of legal blindness. In support of this determination, the VA optometrist addressed the medical evidence of record. First, the optometrist noted that the Veteran's visual acuity was 20/40 in the left eye at the time of his last eye examination on November 12, 1999, prior to his surgical treatment on March 15, 2000, and, again, following left eye surgery on March 28, 2000. The examiner noted that (1) the Veteran signed the informed consent form for the focal macular grid laser treatment for the left eye, and (2) the medical record indicates that there were no complications during the laser procedure. Next, the examiner discussed the Veteran's follow-up appointment two months later, where he reported decreased vision and his chief complaint was a spot in the visual field on awakening that eventually goes away. An assessment of clinically significant macular edema status-post focal macular grid in the left eye with persistent macular edema was provided and, consequently, a recommendation for additional focal macular grid to treat the left eye was made; however, the Veteran refused treatment. Six months later, in January 2001, a fundus examination revealed moderate to severe non-proliferative diabetic retinopathy with advanced clinically significant macular edema and heavy lipid accumulation in the central macula with impressive changes to the fovea in the left eye. Ultimately, the record reflects that the Veteran met the requirements for legal blindness in February 2002. The Board finds that the May 2017 VA medical opinion is highly probative against the claim, as it represents the conclusions of a medical professional and is supported by a fully-articulated opinion with sound reasoning for the conclusion contributing to the weight of the opinion in relation to other evidence in the file. Further, the examiner's opinions are based on reliable principles and supported by other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder (or severity); instead, it must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). In deciding an appeal, the Board must consider all pertinent evidence, so not just the Veteran's lay assertions regarding the occurrence of the claimed events and, here, any purported consequent disability. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). Indeed, in Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997), the Federal Circuit Court explicitly rejected the argument that "the Board must accept the Veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding, instead, that the Board must determine "the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence". In Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009), the Federal Circuit Court similarly held that the Board may properly conclude that unrebutted evidence is insufficient to trigger a presumption, so, here, simply because the Veteran believes there is a correlation between his laser eye surgery in March 2000 and what he is claiming to now experience as a result or consequence. For these reasons and bases, the Veteran is not entitled to § 1151 compensation. To reiterate, merely showing that he developed left eye blindness after laser surgery is not enough to prevail in the absence of a showing of carelessness, negligence, lack of proper skill, error in judgment, or similar finding of fault on the part of VA in performing the laser surgical treatment on March 28, 2000. The most probative evidence of record does not indicate that VA medical staff failed to exercise the degree of care that would be expected of a reasonable health care provider when performing the laser surgery. Additionally, the medical evidence of record, on the whole, demonstrates that his additional disability of left eye blindness was due to his nonservice-connected diabetes mellitus. He also provided his informed consent. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to VA compensation benefits under 38 U.S.C. § 1151 for left eye blindness is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs