Citation Nr: 1804972 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-55 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residual disability to the left eye from an intravitreal injection in November 2008. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 to December 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran did not undergo an increase in or additional disability as a result of the November 2008 intravitreal injection that was proximately due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. 2. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for the November 2008 intravitreal injection are not met. 38 U.S.C. §§ 1151, 5107 (2014); 38 C.F.R. §§ 3.102, 3.361 (2017). 2. The criteria for the award of TDIU are not met. 38 U.S.C. §§ 1155 (2014); 38 C.F.R. §§ 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Compensation under 38 U.S.C. § 1151 The Veteran contends that VA improperly performed the November 2008 intravitreal injection that resulted in residual disability to the left eye, including loss of vision and disfigurement. See March 2016 Statement in Support of Claim. He claims that he was not properly informed of potential complications associated with the intravitreal injection. Id. Also, he alleges that unsterile instruments were used during the procedure which resulted in his infection. See October 2017 VA Form 9. Finally, in the January 2018 appellate brief, the Veteran's representative argued that the resulting infection was not reasonably foreseeable. Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of a veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished a veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In Viegas v. Shinseki, the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the Veteran" by VA or in a VA facility. Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); § 1151(a)(1)(A), (a)(1)(B). Thus, section 1151 contains two causation elements-a veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after care or treatment is rendered. 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 causation. 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 of injury for which the 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance 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 or medical or surgical treatment caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of 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). The Board must weigh any competent lay evidence and to make a credibility determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Pertinent evidence of record includes the Veteran's VA treatment records, a September 2016 VA opinion, and the Veteran's lay statements. On November 12, 2008, the Veteran was seen for a following of his subretinal neovascular membrane (SRNVM) with a history of Lucentis intravitreal injections in the left eye. Another injection was recommended and scheduled for November 24, 2008. A November 24, 2008 VA treatment record noted that the injection to the left eye was performed and the Veteran was prescribed Ocuflox to be used over the next four days. The treatment record indicates that the Veteran was provided written instructions for post-injection care and warning signs and symptoms for complications. Another November 24, 2008 VA treatment record indicates that informed consent was provided by Dr. J.S., was signed by the Veteran at 1:57 p.m., and was witnessed by K.M. Three days after the injection, the Veteran was admitted to VA after total loss of vision in his left eye, at which time the impression was questionable infection versus a hemorrhage. An ophthalmology consultation was ordered. During the ophthalmology consultation, the Veteran reported severe pain and decreased vision that started at 2 a.m. that morning. Following an examination, the Veteran was diagnosed with endophthalmitis in the left eye, and a tap and injection was performed. Thereafter, testing revealed that the Veteran's vitreous had grown out coagulase negative staphylococci, and another intravitreal injection was performed. A December 2008 VA treatment record noted that the Veteran had endophthalmitis in the left eye with staphylococcus epidermis, inflammation, and increased hypopyon. He was discharged on December 9, 2008. On December 16, 2008, the Veteran's VA treatment provider discussed his poor visual prognosis and possible vitrectomy in the future to clear vitreous debris, as well as a possible cataract extraction. In March 2009 a vitrectomy and cataract removal was performed on the left eye. In September 2016, a VA medical opinion was obtained to address whether the complications arising from the November 2008 intravitreal injection were proximately due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Initially, the opinion provider noted the Veteran's history of SRNVM and intravitreal injections beginning in October 2007. The opinion provider then discussed his November 2008 intravitreal injections, following a betadine preparation to the eye and periorbital skin. The opinion provider noted that there was no evidence of external infection during the slit eye examination. At the time of the procedure, no adverse events were noted, and the Veteran was provided prescribed Ocuflox antibiotic drops to use over the next four days. The opinion provider then discussed the November 27, 2009, diagnosis of endophthalmitis and staphylococcus epidermis. The opinion provider noted that, while the infection cleared with treatment, the Veteran's vision did not improve. The opinion provider concluded that the Veteran's loss of vision was caused by the endophthalmitis that developed after the November 2008 intravitreal injection. However, the opinion provider concluded that the pre-operative assessment, intravitreal injection, and post-operative plan were performed by a skilled provider, and that there was no evidence of carelessness or negligence on the part of VA personnel. As to the origins of the endophthalmitis, the opinion provider noted that such was a rare, but nevertheless known, complication associated with intravitreal injections. The opinion provider noted that the standard protocol to prevent infections was followed, and that bacterial endophthalmitis often results in permanent vision loss despite proper treatment. Based on the evidence of record, the Board finds that, while the Veteran did suffer from additional disability following the November 2008 intravitreal injection, namely loss of vision in the left eye, such was not proximately due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. In this regard, the Board finds that the September 2016 VA opinion is only probative opinion of record on this question. The opinion provider offered a detailed discussion of the Veteran's pertinent medical history, including his history of SRNVM and intravitreal injections beginning in October 2007, and then thoroughly discussed the events surrounding the November 24, 2008, intravitreal injections. The opinion provider noted that the appropriate preventative measures to avoid infection were used, including betadine preparation and the prescription for Ocuflox antibiotic drops, but that endophthalmitis was nevertheless a known complication associated with intravitreal injections. The opinion provider's analysis and rationale was based on her review of the records, and she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Although the Veteran has argued that his infection is clearly an indication that one or more of the instruments used in the November 2008 procedure were dirty, the Board finds that such assertions are not persuasive evidence in support of the claim. The question of the cause of an infection is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific question of the cause of an infection is complex in nature and falls outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative opinion on the issue at hand. Id. Insofar as the Veteran claims that he was not properly informed of potential complications associated with the intravitreal injection, the Board finds that his statements are inconsistent with the contemporaneous medical evidence of record and, therefore, are of low probative value. See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statement made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Specifically, although the Veteran claims that he was never informed of the possible complications, as noted above, his VA treatment records clearly indicate that he provided informed consent prior to the procedure. Further, the Veteran was prescribed an antibiotic, which indicates that the possibility of infection was likely discussed. As the weight of competent evidence shows that the Veteran did not incur additional disabilities or an increase in the severity of existing disabilities as a result of VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert, supra. II. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2017). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2017). At this time, the Veteran is not service connected for any disability. As the law requires a veteran to be unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to receive a TDIU, there is no legal basis upon which to receive this benefit. As such, his claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to compensation under the provisions of 38 C.F.R. § 1151 for residual disability to the left eye from an intravitreal injection, is denied Entitlement to a TDIU is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs