Citation Nr: 18142228 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-31 198 DATE: October 15, 2018 ISSUE Entitlement to compensation under 38 U.S.C. §1151 for a left eye disability. REMANDED Entitlement to compensation under 38 U.S.C. §1151 for a left eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to March 1971. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2017. A copy of the hearing transcript has been associated with the claims file. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. A remand is necessary for additional development. First, the Veteran was afforded proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) per an August 16, 2013 letter. The notice provided discussed how to substantiate a claim for compensation under 38 U.S.C. § 1151. In pertinent part, 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361 (b). To establish causation, 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 continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). Additional disability or death caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran’s additional disability or death 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. 38 C.F.R. § 3.361 (d). 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 § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). By way of background, a March 6, 2013 letter shows that VA concedes that the Veteran meets the criteria for catastrophic disability. VA treatment records show surgery related to the left eye in May 2012. A May 17, 2012 Surgical Ophthalmology Note shows, “ANESTHESIA: Intracameral, non-preserved Lidocaine.” A May 18, 2012 note shows that the Veteran’s eye was “very hazy, scratchy, just can’t see well.” A May 18, 2012 Surgical Ophthalmology Note shows, “Required general anesthesia due to history of prior surgery becoming combative. He woke up during surgery and bucked on tube causing capsule tear and displacement of IOL onto endothelium.” A May 21, 2012 VA treatment record shows that the Veteran was administered general anesthesia. A May 31, 2012 Surgical Ophthalmology Post-Op Note shows that the Veteran was administered general anesthesia. It shows, “He expressed concern regarding his recent episode of ‘bucking’ during his recent surgery, and we strategized about ways we could hopefully prevent or minimize the risks of similar episodes of movement and variable depth of anesthesia.” Additional VA and private treatment records are substantially the same. The significance of these treatment records is discussed further below. Next, in May 2013, the Veteran filed an informal claim under the provisions of 38 U.S.C. § 1151 alleging that he suffered permanent and chronic disabilities as a result of left eye surgery at the Asheville VA Medical Center (VAMC). Specifically, the Veteran alleges a pattern of negligence and fault on behalf of the Asheville VAMC for his cornea being scratched, swollen, and filled with fluid, as well as vision loss due to the surgery. A May 28, 2013 Statement in Support of Claim shows in part, “My eyes did not get this way due to illness. The condition that I suffer with today is a scarred cornea, which occurred at Asheville VA on May 17, 18, 2012, which is a year ago. I ask you, who was monitoring my care while I was under general anesthesia during the surgery?” A September 2013 VA medical opinion was obtained from Dr. E. C. S. He described the Veteran’s relevant medical history: In regard to records review of [the Veteran] and [his] claim against the VA for eye surgery May 17, 2012. I have reviewed the records. The patient had combined cataract/intraocular lens/glaucoma tube shunt surgery on 05/17/2012. The surgery was complicated due to the patient partially awakening during the procedure from general anesthesia to cause bucking or severe cough reflex at a critical point in the procedure. Due to the bucking there was an anterior capsular rent (also known as anterior capsular radicalization). Because of this Dr. [C.] did not feel the capsule was stable to hold the type of implant lens he had just placed into the eye. He enlarged the incision and removed the lens and placed a different style of lens into a position (the sulcus) where the capsular rent would not become an issue for future problems such as dislocation of the lens from this complication. I feel this was completely appropriate and prudent and met or exceeded the standard of care. The next problem encountered was the patient developed pressure behind the implant and iris narrowing the anterior chamber depth. Since the anterior chamber was too shallow he could not place the tube shunt into the eye or it would have been likely to touch the cornea causing it to decompensate with chronic swelling or to touch the iris with chronic irritation to the eye or both. He appropriately did not place the shunt into the eye gave it time to stabilize and then did a second operation 2 weeks later to place the tube shunt into the eye when it was safe to do so Dr. [C.] met the standard of care to delay placing the tube shunt into the eye a few weeks later when the eye was stable to accept the tube. The necessary extra manipulations to appropriately handle the complication gave additional cause for corneal swelling than would have been expected from uncomplicated surgery but there is typically some corneal swelling even after uncomplicated surgery. Corneal swelling was not unexpected. The corneal swelling eventually improved and by the time of his last exam at Asheville his best corrected vision in the left eye was 20/60 2 vs his preoperative vision of 20/40 1 in the left eye. His eye pressure had improved vs his preop eye pressure with the tube shunt to stabilize his poorly. Regarding the Veteran’s various contentions, he opined: Did this VA care cause additional disability? Since his vision has since returned to baseline visual acuity I would say no. He does require use of drops and ointment to control some cornea swelling now. He was legally blind both eyes both prior to and after the procedure due to loss of visual field from glaucoma. The care provided by Dr. [C.] was appropriate and timely. It would likely [have] been a better outcome yet had the complication not occurred when the patient developed bucking from the anesthesia and likely there would have been less swelling of the cornea postoperatively had this not happened but swelling could have even occurred in uncomplicated surgery. . . . . The one valid complaint that [the Veteran] does have is that he has corneal swelling that reduced his vision for a prolonged period postoperatively. As I have noted this is relatively well controlled now according to more recent notes. Although this swelling is related to the surgery I find no evidence that anything was done improperly during the procedure and it is not an unexpected outcome. The handling of the complication was excellent under the circumstances and done with the expected degree of care. Next, the Veteran perfected his appeal in August 2015. He recounts his history of undergoing surgical operations on the left eye. He contends in part that a shunt rubbed a hole on the interior of the eye because it was loosely installed. He felt the shunt moving up and down. Later, in February 2015, the Veteran reported that he underwent a full cornea transplant and also took the opportunity to reinstall the tube shunt that he reports providers were claiming was never taken out. He contends that this was done at the request of VA physicians to make the complaint about his eye surgery null and void. In January 2017 the Veteran and his representative testified at a hearing before the undersigned VLJ. The Veteran described his medical history, and his theory of entitlement. He described that his surgery for cataracts, an intraocular lens, and to install a glaucoma tube shunt occurred on May 17, 2012. That is when he woke up under anesthesia. This surgery was at the Ashville VA Medical Center (VAMC) in North Carolina. The next day, the Veteran reported that during post-operative care, a resident or internist physician began blaming him for having woken up during the surgery. Per the Veteran’s testimony, the physician essentially admitted fault in the procedure going incorrectly, but attributed this all to the Veteran for having woken up. The Veteran’s representative testified, “The only thing that it said in there was that he had bucked on the tube, he had partially awaken…Bucked on the tube causing capsule tear and displacement of the intraocular lens at the endothelium.” In other words, the lens displaced when the Veteran began choking. Doctors removed the lens and installed a secondary, temporary lens. This was later replaced during a subsequent surgery a week later, still in May 2012. Regarding informed consent, the Veteran reported that he was told that the doctor had had a patient die on the operating table due to fluid in the lungs. He further testified that nobody ever mentioned the fact that this tube shunt causing excess fluid to drain at the esophagus could have led to the coughing that caused the Veteran to wake up. Regarding medical treatment, the Veteran endorsed that local anesthetic was available, but he had to be under general anesthesia because he was known to become combative because of “stuff” laid across his face. The Veteran testified that a week after the operation, the anesthesiologist told him, “That if in theory he is doing a procedure and the installation of that tube shunt in its completion if he is going to be making a maneuver that would in theory induce more pain ordinarily he needs to instruct him as the anesthesiologist and he is going to take me even deeper into general anesthesia.” See Hearing Transcript, p. 19. Lastly, the Veteran and his representative testified regarding the Veteran’s theories of entitlement. First, they aver, “The event need not be completely unforeseeable or unimaginable but most be one that a reasonable healthcare provider would not have considered to be an ordinary risk during treatment provided. We contend that the veteran cannot be held responsible for having coughed, bucked on the tube and caused this additional and this additional damage occurring because he was under general anesthesia. If there was a problem with not having given enough anesthesia then that should fall on the part of the Department of Veteran’s Affairs medical center. So the question to be determined is whether the added anesthesia administered was sufficient in view of the prior history of combativeness during prior, during his other surgeries.” See Hearing Transcript, p. 24. They assert that the evidence is in conflict with respect to the adequacy of the current medical opinion, and that a new medical opinion from an expert is necessary. As summarized by the VLJ, the fact that subsequent surgery noted the need for more anesthesia supports this contention. Here, the September 2013 VA examiner has not fully addressed all of the Veteran’s contentions. For example, the VA examiner does not specifically address assigning fault for the Veteran having buked on the tube causing additional damage, while under anesthesia. This theory of entitlement should be fully explored. In addition, the VA examiner should opine whether VA breached the standard of care under 38 U.S.C. § 1151, and all of the related criteria. As outlined at the hearing, the examiner did not address the foreseeability of the event of the tube shunt causing excess fluid to drain at the esophagus could have led to the coughing that caused the Veteran to wake up. An opinion is also necessary with respect to administering proper anesthesia for the procedure. The VA examiner’s overall affiliation with the facility that performed the surgery is implicitly questioned, and the Veteran generally asserts that doctors attempted to put all fault on him following the operation. See Hearing Transcript, pp. 4-6, 16. Therefore, on remand, the AOJ should submit the evidentiary record to a new VA examiner with the appropriate expertise to be reviewed, and the examiner should opine as to whether the Veteran’s disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical treatment, or whether the outcome of the procedure was an event not reasonably foreseeable. Any outstanding VA treatment records since 2014 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). These are particularly important in determining any present impairment, including due to corneal swelling. Indeed, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim, a VA medical opinion from a separate medical facility is necessary. The matter is REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of any private treatment records, and associate them with the Veteran’s claims folder. 2. Obtain updated copies of the Veteran’s VA treatment records. 3. Then, obtain a VA medical opinion with a different VA examiner not at the Asheville VA Medical Center (VAMC) of appropriate expertise who will opine as to whether the Veteran’s left eye disability was caused or related to malpractice by VA. This should be an examiner who can comment on the proper administration of anesthesia, though not necessarily an anesthesiologist. The claims file must be made available to the examiner, and reviewed in conjunction with rendering the medical opinion. However, the VA examiner does not need to examine the Veteran in person unless found to be necessary following a review of the claims file. Then, after reviewing the claims file, the VA examiner should offer the following opinions with supporting rationale: Left Eye Surgery (a) Did the Veteran receive proper informed consent before the left right eye procedures in May 2012 advising him of the risks, including that he could lose eye sight in that eye? (b) Is it at least as likely as not that any disability in the Veteran’s left eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable by the VA in treating the Veteran’s left eye before, during and after the surgical procedures? The VA examiner should specifically comment on any corneal swelling that may impair vision. Administration of Anesthesia (c) Is it at least as likely as not that any disability in the Veteran’s left eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA during and after the surgical procedures that is attributable to the administration of anesthesia for the left eye surgery that took place on or about May 17, 2012, or, an event not reasonably foreseeable by the VA in treating the Veteran’s left eye before, during, and after the surgical procedures? See Hearing Transcript, p. 4. The examiner is advised that the Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. The complete rationale for all opinions should be set forth. The examiner should generally comment on and discuss the Veteran’s contentions as outlined in the January 2017 hearing transcript and referenced in the body of this remand regarding the type of anesthesia used during the initial May 2012 procedure. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel