Citation Nr: 18141790 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 12-27 502 DATE: October 11, 2018 ORDER Entitlement to compensation under 38 U.SC. §1151 for loss of vision in the left eye, for accrued purposes, is denied.   FINDING OF FACT The probative evidence of record does not show that the Veteran’s vision loss in the left eye is at least as likely as not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to benefits under 38 U.S.C. § 1151 for vision loss in the left eye, for substitution purposes are not met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.358, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to March 1968. The Veteran died in March 2018. The appellant is his surviving spouse, who has been substituted to pursue this appeal. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2009 rating decision. The Board remanded the claim in December 2016 for additional development. The record reflects substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 38 U.SC. §1151 The Veteran seeks entitlement to benefits under 38 U.S.C. § 1151 for vision loss in his left eye after the Alexandria VA Medical Center allegedly refused him his prescribed glaucoma eye drops, Travoprost (Travatan). See, e.g., January 2009 Statement in Support of Claim. Specifically, he states that prior to his VA hospitalization he underwent glaucoma surgery at a private facility in June 2008 and was prescribed Travoprost after the surgery. He claims that this medication was taken away from him during his subsequent VA hospitalization and that his vision worsened as a result. He also asserts that because his vision became blurry during the hospitalization, he fell and hit his head causing even more vision loss. See VA Form 9. A. Applicable Law The law provides that compensation may be paid for a qualifying additional disability not the result of the Veteran’s willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability 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 recently foreseeable. 38 U.S.C. § 1151 (2012). VA regulations provide that benefits under 38 U.S.C. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of 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 natural progress. 38 C.F.R. § 3.361 (2017). If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. See 38 C.F.R. § 3.361(c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran’s representative. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. Whether the proximate cause of a veteran’s additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). B. Facts In June 2008, the Veteran presented to the Azar Eye Clinic for cataract surgery in the left eye. Following the surgery, the Veteran was prescribed Travoprost for increased eye pressure. On August 18, 2008, the Veteran was hospitalized at the Alexandria VAMC for his service-connected psychiatric disability. Upon admission, it was noted that the Veteran had glaucoma and surgery in June 2008. The Veteran was administered Travoprost at 5:21 p.m. by Dr. J.A. On August 31, 2008, a treatment note indicates the Veteran fell. The record notes he had an abrasion and laceration below his left knee. It was noted that he “voiced only hitting his leg and voices no other complaints.” It was further noted that this was witnessed by two other patients. (There is no indication that he hit his head.) The Veteran was discharged on September 16, 2008. His discharge medications included Travoprost for glaucoma. The Veteran returned to the Azar Eye Clinic on September 24, 2008. The record indicates the Veteran hit his head on the wall on the previous Saturday. (The Board observes that the previous Saturday would have been September 20, 2008.) The Veteran reported that this fall made his blurriness worse. The Veteran was found to have a hyphema and was treated for elevated pressure. On October 2008, the blood was cleared, but neovascularization of the iris was found. The Veteran developed neovascular glaucoma, which stabilized. In a July 2009 statement in support of the claim, the Veteran indicated the fall happened on September 19 or 20, 2008. The Veteran was afforded a VA examination in September 2009. Following review of the record, the examiner opined that the condition is not caused by or a result of allegedly being denied eye medication during hospital admission. The examiner noted that the Veteran’s medical records indicated in several places that Travoprost was an active medication during the Veteran’s VA hospital admission. Following a Board remand, a VA medical opinion was obtained in June 2017. After reviewing the claims file, the examiner noted the Veteran had glaucoma, diabetic retinopathy, and pseudophakia. The examiner opined that none of the pathology was proximately caused by any failure to allow the Veteran to administer Travoprost, and/or a fall resulting in a head injury during his hospitalization from August 18, 2008 to September 16, 2008. The examiner noted that Travoprost was on his medication list throughout his hospital stay, including admittance and discharge. As for a fall, the Veteran reported to his doctor at the Azar Eye Clinic that he had a fall in which he hit the left side of his face several days after discharge from the VA hospital. The examiner opined that it is less likely than not that the claimed disability was caused by or became worse as a result of VA treatment. The examiner noted that the Veteran had severe damage to the left eye prior to admission. According to hospital records, he was maintained on Travoprost from the time of admission until discharge. The June 2017 examiner further indicated that there was nothing in the medical records to indicate that the Veteran was having particular symptoms related to his eyes or made any complaints about his eyes during admission. Moreover, according to his records, the Veteran was receiving the drops he was prescribed. As such, the examiner concluded it is less likely than not that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of VA personnel. Finally, the June 2017 examiner further noted that the progressive damage from the glaucoma could be reasonably foreseen by a reasonable healthcare provider. Glaucoma is a disease that usually progresses despite appropriate treatment. C. Discussion Based on careful review of the record, the Board finds that the criteria for establishing entitlement to compensation under 38 U.S.C. § 1151 have not been met. Initially, the threshold element for 38 U.S.C. § 1151 compensation, the presence of a qualifying additional disability, with respect to the Appellant’s claim has been met in this case. However, the Board finds that the weight of the evidence does not establish that the Veteran’s neovascular glaucoma was due to VA’s carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or an event not reasonably foreseeable, and that the best evidence in this case provides evidence against this claim. Contrary to the Veteran’s and Appellant’s assertions, a review of the Veteran’s VA treatment records confirms that he received Travoprost to treat glaucoma between approximately August 18, 2008 and September 16, 2008. The prescribed eye drops were noted upon admission and discharge. Furthermore, the medical evidence, and the Veteran’s July 2009 statement establish the he fell and hit his head after discharge from the VA hospital. Thus, the evidence weighs against a finding that the fall occurred during the admission or could have been due to VA withholding this medication. Furthermore, multiple opinions provided in this case weigh against the claim. The September 2009 and June 2017 opinions, taken together, are probative, because they were based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s, and by extension the appellant’s, contentions that his disabilities were due to negligence or lack of proper skill on the part of VA. The question on appeal involves complex medical issues, including the appropriate level of care and treatment for his eyes. The Veteran and appellant, as laypersons, are competent to report matters within their personal knowledge, such as the occurrence of an injury or event, or the Veteran’s own symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, they have not been shown to possess the medical expertise or knowledge required to address the complex medical issues central to the present case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel