Citation Nr: 18143211 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-35 565A DATE: October 18, 2018 ORDER Compensation under 38 U.S.C. § 1151 for bilateral lattice degeneration of the retina due to VA treatment is denied. Compensation under 38 U.S.C. § 1151 for bilateral dry eye syndrome due to VA treatment is denied. Compensation under 38 U.S.C. § 1151 for bilateral refraction disorder, also claimed as myopia, due to VA treatment is denied. New and material evidence has not been received and the application to reopen the claim for service connection for bilateral lattice degeneration of the retina is denied. New and material evidence has not been received and the application to reopen the claim for service connection for bilateral refraction disorder, also claimed as myopia, is denied. Entitlement to service connection for bilateral dry eye syndrome is granted. Entitlement to service connection for a left eye cataract is denied. REMANDED Compensation under 38 U.S.C. § 1151 for left eye cataract due to VA treatment is remanded. FINDINGS OF FACT 1. The weight of the probative evidence is against a finding that the Veteran’s lattice degeneration of the retina was caused by or worsened beyond its natural progress as a result of VA treatment. 2. The weight of the probative evidence is against a finding that the Veteran’s refractive disorder was caused by or worsened beyond its natural progress as a result of VA treatment. 3. The weight of the probative evidence is against a finding that the Veteran’s dry eye syndrome was caused by or worsened beyond its natural progress as a result of VA treatment. 4. In an unappealed May 1980 decision, the Board denied entitlement to service connection for an eye disability, then claimed as bilateral lattice degeneration of the retina and bilateral myopia. The Board decision became final. 5. Subsequent rating decisions in April 1981, January 1987, and January 2002 denied the Veteran’s claim to reopen based on the lack of submission of new and material evidence. The rating decisions became final. 6. The evidence received since the prior final denials, when considered alone or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral lattice degeneration of the retina and bilateral myopia. 7. The Veteran served at U.S. Marine Corps Base Camp Lejeune (Camp Lejeune) for more than 30 days between August 1, 1953, and December 31, 1987. 8. The Veteran’s bilateral dry eye syndrome is secondary to his service-connected posttraumatic stress disorder (PTSD). 9. The preponderance of the evidence is against finding that the Veteran’s left eye cataract began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for bilateral lattice degeneration with holes are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for compensation under 38 U.S.C. § 1151 for bilateral dry eye syndrome are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. 3. The criteria for compensation under 38 U.S.C. § 1151 for bilateral refraction disorder, claimed as myopia, are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. 4. The May 1980 Board decision, as well as the April 1981, January 1987, and January 2002 rating decisions, are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.1100, 20.1103, 20.1104 (2017). 5. Evidence received since the prior final decisions is not new and material, and, therefore, the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for service connection for bilateral dry eyes are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 7. The criteria for service connection for a left eye cataract are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to April 1978. 1. 38 U.S.C. § 1151 Claim for an Lattice Degeneration, Refractive Disorder, and Dry Eye. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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; 38 C.F.R. § 3.361. To determine whether a veteran has an 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 the veteran’s condition after such care, treatment, examination, services, or program has stopped. See 38 C.F.R. § 3.361 (b). 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 or medical or surgical treatment caused the Veteran’s additional disability or death; 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. 38 C.F.R. § 3.361 (d)(1). 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). The Veteran's VA treatment records confirm that the Veteran underwent laser eye surgery, specifically panretinal photocoagulation (PRP), on April 20, 1995, without complication. See April 1995 VA treatment records. The Veteran has asserted that he suffered aggravation of his lattice degeneration of the retina and refraction disorder, and developed dry eye syndrome and a left eye cataract as a result of the eye surgery. See, e.g., July 2012 claim; July 2017 VA Form 9. The Veteran has asserted that the doctor performing the surgery did not know about the Veteran's “condition,” should not have performed the surgery, and doing so was a mistake. Id. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what she personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran incurred additional disability as a result of VA treatment cannot be determined by mere observation alone. The Board finds that determining whether the Veteran suffered an additional disability as a result of VA treatment is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether he had additional disability. The Veteran's VA treatment records and service treatment records demonstrate that his lattice degeneration of the retina and myopia predated the April 1995 surgery. See, e.g., September 1974 service treatment records; March 1983 VA treatment record; April 1995 VA treatment record. The Veteran underwent a VA examination in March 2013. The examiner opined that the Veteran was born with myopia, which caused his decrease in vision and amblyopia in his left eye. The examiner explained that people with high myopia were more likely to develop lattice degeneration, which puts them at risk for retinal detachment and blindness. The examiner opined that PRP laser surgery was necessary to prevent retinal detachment. The examiner gave a diagnosis of dry eyes, but opined that dry eyes is usually not a side effect of retinal laser surgery and may have been associated with the Veteran's age and medications. Ultimately, the examiner found that there was no disability related to carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel, as the Veteran's eyes had remained retinal detachment free since the 1995 surgery, there was no additional disability that resulted that could not have been foreseen, and there was no failure to timely diagnose, properly treat, or allowed any disease or disability to continue to progress. Accordingly, the Board affords more probative weight to the opinion of the March 2013 VA examiner. The examination was conducted by a health care professional and based on physical examination and review of the evidence in the claims file. The opinion was supported by adequate rationale. Therefore, the Board finds the threshold element of the claims have not been met (i.e., that VA treatment proximately caused or aggravated the Veteran’s lattice degeneration of the retina, refraction disorder, or dry eyes beyond their natural progression), the questions of whether VA met the standard of care, whether the Veteran was provided informed consent, and whether an event not reasonably foreseeable occurred, are ultimately moot. In consideration thereof, the Board finds that the preponderance of the evidence is against the claim of entitlement to compensation benefits under 38 U.S.C. § 1151. The benefit-of-the-doubt rule does not apply; accordingly, the claims are denied. 2. Claims to Reopen Entitlement to Service Connection for Myopia and Lattice Degeneration of the Retina Generally, a claim which has been denied in an unappealed rating decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a May 1980 decision, the Board denied the Veteran’s claim for service connection for a bilateral eye disability, then claimed as myopia and lattice degeneration of the retina. The Board’s decision was predicated on a finding that the claimed conditions were congenital conditions and were not entitled to service connection. The Veteran did not appeal the Board’s decision, and it therefore became final. Subsequent rating decisions in April 1981, January 1987, and January 2002 denied the Veteran’s claims to reopen the previously denied claim due to lack of submission of new and material evidence. The Veteran did not appeal either the April 1981 or January 1987 rating decisions. And while the Veteran appealed the January 2002 rating decision, he withdrew his appeal in a May 2004 statement. Therefore, the April 1981, January 1987, and January 2002 rating decisions are final. Because the Board found that the Veteran's claimed myopia and lattice degeneration of the retina were congenital and not disabilities for compensation purposes, for evidence to be new and material, it would have to show that the Veteran’s claimed disorders were aggravated by his service. The Board notes that the Veteran was afforded VA examinations in February 2004 and March 2013. However, neither examination is material because both are merely cumulative of evidence that was in existence at the time of the prior final decisions. Specifically, both indicate that the Veteran's claimed conditions were congenital, and neither indicates that either of the claimed disabilities were aggravated by his service. Consequently, neither raises a reasonable possibility of substantiating the claims. Moreover, the February 2004 VA examination was considered by the Agency of Original Jurisdiction in an April 2004 supplemental statement of the case, prior to the Veteran's withdrawal of his appeal. In an October 2013 statement, the Veteran asserted that myopia and lattice degeneration of the retinas were caused by exposure to contaminated drinking water at Camp Lejeune. As an initial matter, while the Board recognizes that the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012” was approved in August 2012, after the prior final denials, and is a liberalizing act, in this case it does not entitle the Veteran to a review of his claim on a de novo basis. See Spencer v. Brown, 4 Vet. App. 283 (1993); aff’d 17 F. 3d 368 (Fed. Cir. 1994). While the Veteran’s service treatment records confirm that the Veteran was stationed at Camp Lejeune for more than 30 days during the presumptive period, his claimed eye conditions are not included in the list of diseases entitled to presumptive service connection. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). As such, because the liberalizing act at issue does not apply to his claimed conditions, it did not create a new basis of entitlement to benefits, and therefore does entitle him to de novo review of his claims. See Spencer, 4 Vet. App. 283, 288-89. Thus, the Veteran has merely presented a new theory of service connection, alleging that exposure to contaminated water caused his claimed conditions. However, a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of the new claim unless new and material evidence is submitted supporting the new theory of causation. See Boggs v. Peake, 520 F.3d 1330 (2008). Here, the record does not include any competent evidence demonstrating, or even suggesting, that exposure to contaminated drinking water aggravated his claimed myopia or lattice degeneration of the retina. Therefore, although he has alleged a new theory of causation, he has not provided any material evidence in support of his claims. Upon careful review and consideration of the record, the Board concludes that the evidence added to the claims file since the prior denial does not contain evidence or information that shows or establishes that the Veteran’s congenital myopia or lattice degeneration of the retina were aggravated by his active duty service. Accordingly, the Board finds that new and material evidence concerning the Veteran’s claim for service connection for myopia or lattice degeneration of the retina has not been received, the Veteran's claims cannot be reopened, and the appeal is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. Dry Eye Syndrome The Veteran's VA treatment records demonstrate that the Veteran has a current diagnosis of dry eye syndrome. See, e.g., February 2004 VA examination report; June 2010 VA treatment record; March 2016 VA treatment record. A March 2004 VA examiner opined that it was at least as likely as not that the Veteran's dry eyes were related to the cholinergic effects of the psychotic medication he was taking for his service-connected PTSD. 4. Left Eye Cataract The Veteran asserts that his left eye cataract is related to his active duty service. The Veteran has specifically asserted that the condition was caused by the thickness of the glasses he was prescribed while in service, see January 2004 DRO hearing testimony (p.6), or, in the alternative, that the disability resulted from exposure to contaminated water while he was stationed at Camp Lejeune. See October 2013 Veteran Statement. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Turning first to his claim for presumptive service connection, the Veteran’s service treatment records show that he was stationed at Camp Lejeune for more than 30 days during the presumptive exposure period, and he is presumed to have been exposed to contaminated water. 38 C.F.R. § 3.307 (a)(7). Cataracts, however, are not included in the list of diseases entitled to presumptive service connection, and the Veteran is therefore not entitled to presumptive service connection. 38 C.F.R. § 3.309 (f). A claimant is not precluded from establishing service connection for a disability due to exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the Veteran has provided no competent medical evidence establishing a connection between his presumed in-service exposure to contaminated water at Camp Lejeune and his claimed left eye cataracts. The Board further concludes that, while the Veteran has a diagnosis of a left eye cataract, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are silent for any complain, treatment, or diagnosis of cataracts. The Veteran first reported that he had been given a diagnosis of a left eye cataract during a January 2004 DRO hearing. The Veteran underwent a VA examination in February 2004, during which the examiner noted that the Veteran had some posterior cortical cataracts; however, the examiner failed to provide an etiological opinion regarding the Veteran's claimed cataracts, and the examination is therefore inadequate. As a part of his claim for compensation under 38 U.S.C. § 1151, the Veteran was afforded a VA examination in March 2013. Here, although the March 2013 VA examiner did not address the Veteran’s assertion that his left eye cataract was caused by exposure to contaminated water or his in-service eye glass prescription, the examiner gave a positive etiological opinion that the Veteran’s cataracts were more likely than not caused by an April 1995 laser eye surgery, explaining that cataracts was a common side effect of laser surgery. The examiner’s opinion is probative because it contains a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that neither of the two VA examinations addressed the Veteran's assertion that his left eye cataract was caused by exposure to contaminated water or his in-service eye-glass prescription. However, there is no competent medical evidence of record to support the Veteran's cataracts may have been caused by either of his asserted theories of causation. Further, because the Board has determined that the March 2013 VA examiner’s nexus opinion is adequate, and the information and evidence of record therefore contains sufficient competent medical evidence to decide the claim, remand for an additional examination is not necessary. See 38 C.F.R. § 3.159 (c)(4). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. REASONS FOR REMAND 1. 38 U.S.C. § 1151 Claim for Left Eye Cataracts The March 2013 VA examiner found that Veteran had bilateral cataracts, which were at least as likely as not caused by an April 1995 PRP eye surgery. And while the examiner explained that 360-degree bilateral cataracts was a common side effect of laser surgery, in cases involving claims for compensation under 38 U.S.C. § 1151 the Board is required to review any informed consent documentation regarding the claimed VA treatment. The April 1995 VA treatment records state that the Veteran was given “adequate informed consent,” but the record does not contain actual informed consent forms notifying the Veteran of the expected benefits and reasonably foreseeable associated risks with his eye surgery. As such, remand is necessary. The matters are REMANDED for the following action: 1. Request all available records from the Veteran's April 1995, laser eye surgery performed at the Birmingham VAMC. Specifically, all pre-operative records should be requested and obtained, to include any pre-surgery treatment records where the surgery was discussed and all consent forms signed prior to the surgery. All efforts to obtain the identified records should be clearly documented in the claim file. If these documents do not exist or are not available, or further attempts to secure them would be futile, a negative response to that effect is required from the appropriate location, and a formal finding of unavailability must be made and associated with the record. The Veteran should be accorded the opportunity to furnish such records directly to VA. 38 C.F.R. § 3.159 (e)(2017). 2. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel