Citation Nr: 18143663 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 08-08 685 DATE: October 19, 2018 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of left eye cataract surgery is denied. FINDING OF FACT The Veteran does not have additional disability involving residuals of left eye cataract surgery as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment or as a result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for residuals of left eye cataract surgery have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1968 to June 1971. This matter is on appeal from an August 2009 rating decision and was previously remanded by the Board of Veterans’ Appeals (Board) in December 2010, April 2014, August 2016, and August 2017. The Board observes that the Veteran has another appeal pending for multiple other claims; in his March 2018 substantive appeal, he specifically requested a Board hearing as to those issues. Therefore, as that appeal has further action pending, those claims will be the subject of a future Board decision. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of left eye cataract surgery In order to warrant compensation under 38 U.S.C. § 1151, it must be demonstrated that the VA treatment in question resulted in additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). 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. 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). With regard to the former element, it must be shown that VA’s care, treatment, or examination caused the veteran’s additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such VA care, treatment, or examination without the veteran’s informed consent. 38 C.F.R. § 3.361(c), (d). Regarding the latter, the United States Court of Appeals for Veterans Claims (Court) 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). 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. 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). The Veteran asserts that surgery for a left eye cataract was performed by an intern who “messed up” his eye. May 2013 statement in support of claim. The question for the Board is whether the Veteran has a current disability that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or from an event not reasonably foreseeable. The Board concludes that the Veteran does not have additional disability resulting from VA care that was careless, negligent, lacked proper skill, erred in judgment, or had similar instance of fault or from an event not reasonably foreseeable. A review of VA treatment records shows that the Veteran had a cataract removed from his left eye in November 2004. A November 2004 operative note shows that there were no complications; follow-up records in November and December 2004 show that the Veteran was doing well.. A signed consent form dated in October 2004 is of record; it shows that indications, risks, benefits, and alternative treatment options had been explained. Blepharitis and pseudophakia were diagnosed in April 2005. Records in April 2007 show that the Veteran had a “cloud” over his left eye and underwent laser surgery that same month. A signed consent form dated in April 2007 for the Veteran's laser surgery is of record. It shows that known risks included, but were not limited to, increase in “floaters;” need for further therapy, medication, or surgery; loss of vision or decrease in vision; and other risks. A June 2007 record shows that further laser surgery as was done in April 2007 was to be repeated that day; a July 2007 record shows persistent floaters since that surgery. A December 2007 record reflects that the Veteran had floaters in his eye. A VA medical opinion was obtained in June 2013. The examiner opined that there was no evidence that the Veteran had incurred any additional disability to his left eye following cataract surgery. The rationale was that he had uncomplicated surgery with an uneventful post-operative course and best corrected vision of 20/20 after surgery. They noted that he had laser treatment twice a few years later, which resulted in a floater in the left eye that was bothersome to the Veteran. The examiner observed that the Veteran's vision continued to be documented with good vision with best corrected acuity 20/25 in 2011. They noted that he had clear well centered lenses on exam with a floater left eye and an otherwise normal fundus exam. The examiner reported that the Veteran had dry eyes and blepharitis, which affected his ocular surface and contributed to a fluctuation of his vision. The examiner concluded that the Veteran had ocular hypertension in the left eye, but that was not due to his uncomplicated cataract surgery. The examiner’s opinion that the Veteran does not have additional disability is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). An additional VA medical opinion was obtained in December 2016. The examiner opined that the Veteran's left eye blepharitis and floaters did not constitute additional disability caused by VA surgical treatment. The rationale was that cataract surgery was uncomplicated and was not a cause of blepharitis nor a cause of dry eye syndrome. They opined that the “floater” might be the described “vertical strand” of lens posterior capsule, which was treated twice and in which case may be “cured” by a third laser treatment. They opined that a hazy posterior capsule after cataract surgery occurred in about 20 to 30 percent of the operations and was not an indication of a complicated case, nor of bad surgery. They further opined that regarding the Veteran's cataract surgery in 2004, there was no carelessness, negligence, lack of proper skill, error in judgment, nor a similar instance of fault on part of VA providers, nor were there any events not reasonably foreseeable in the course of VA treatment. The rationale was that the posterior capsule haze was a known sequelae of cataract surgery and that fact is disclosed/discussed at the time of the consent for cataract surgery. This examiner’s opinion is also probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Id. Moreover, both opinions are uncontradicted by other competent evidence. No medical opinion relating additional disability to cataract surgery performed by VA is of record. Absent evidence of additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable, entitlement to compensation under 38 U.S.C. § 1151 cannot be granted. In finding that the evidence is against this claim, the Board acknowledges that no attempt has been made to determine whether quality assurance (QA) records pertaining to the treatment at issue exist as reported by the Veteran's representative in their September 2018 brief. Generally, QA records are protected under 38 U.S.C. § 5705 and its implementing regulations, and therefore are unavailable for consideration in deciding a benefit claim such that they cannot be considered “evidence and material of record” within the meaning of 38 U.S.C. § 7104(a). Thus, withholding protected QA records, even if pertinent to a claim, would not violate section 7104(a). See VAOGCPREC 01-11 (Apr. 19, 2011). However, QA investigative reports should be requested if the claimant (1) identifies these records as evidence necessary to substantiate their claim; (2) identifies quality assurance records consistent with 38 U.S.C. 5103A (b)(1), and (3) furnishes sufficient information to locate the records consistent with 38 U.S.C. 5103A(c)(2). VBA Manual M21-1, IV.ii.1.A.2.d., Quality Assurance Investigative Reports; see also VAOGCPREC 01-11. Here, the Veteran’s representative has not furnished sufficient information to locate the records. Rather, the representative has only argued that no attempt has been made to find out whether any QA records exist. Furthermore, it is VA’s policy to destroy QA records after three years unless needed for research or legal purposes. Norvell v. Peake, 22 Vet. App. 194 (2008); citing VHA Records Control Schedule 10-1, at XXXIII-2 (Aug. 1, 2009); see also VHA Records Control Schedule 10-1 (Mar. 1, 2011). In this case, the Veteran's cataract surgery and subsequent laser treatment for floaters took place in 2004 and 2007. Absent sufficient information from the Veteran, and as more than three years has passed since the treatment at issue, no action pertaining to QA records is needed. (Continued on the next page)   For these reasons and bases, the preponderance of the evidence is against the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 residuals of left eye cataract surgery. As the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply, and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Barstow, Counsel