Citation Nr: 18146073 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-38 026 DATE: October 30, 2018 ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a right eye disability, claimed as due to VA surgery. ORDER Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a right eye disability, claimed as due to VA surgery, is denied. FINDING OF FACT A right eye disability following VA treatment and surgery was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable due to care received by VA from November 2016 to January 2018. CONCLUSION OF LAW The criteria for compensation pursuant to the provisions of 38 U.S.C. § 1151 for additional disability of the right eye have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to June 1964. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a right eye disability, claimed as due to VA surgery By way of background, the Veteran contends that he developed progressively worse right eye disabilities, including to the eyelid and impairing his eyesight, as the result of VA treatment from November 2016 to January 2018. In pertinent part, section 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. 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). By way of background, an October 21, 2016 VA treatment record from Kerrville, VA Medical Center (VAMC) shows that a consultation request had been placed by the optometrist for the Veteran to be seen at the eye clinic for a comprehensive eye examination. An April 3, 2017 VA treatment record shows that the Veteran underwent retina surgery at the Audie L. Murphy Memorial VA Medical Center (VAMC). It shows that informed consent was verified. It shows at the end, “The patient was discharged from PACU after discharge criteria were met.” A June 2017 VA treatment record shows an impression of and treatment for a detached retina. An October 2017 VA Eye Ophthalmology Note shows a “dislocated IOL [intraocular lens] OD on April 2017 and as well as “RRD OD” from June 2017. It shows a diagnostic impression of, “retina detached inferiorly to include macula, no tear/hole able to be visualized, SB visualized with adjacent areas of retinal atrophy/scarring; OS flat without holes or tears.” Next, the Veteran filed his initial 38 U.S.C. § 1151 claim, received by VA in October 2017. He described his experiences at VA facilities that led to his current claim under 38 U.S.C. § 1151. Briefly, he went to Kerrville, Texas to get a retina scan. The eye dilation solution caused his eye lens to come loose and fall over backwards in his eye. Next, he went to Audie Murphy in San Antonio, Texas to have his lens replaced. The surgery was good for three days, but the lens fell out again. A decision was made to stitch the lens in place. After further treatment, the stitch that had been in place pulled again out again and ruined the lens. The lens was once again replaced. Next, three weeks later, the stitch came out and detached the retina. During the retina repair, the instrument used to hold the lid open during surgery permanently destroyed the right eye lid. The Veteran avers, “These mistakes were committed by V.A. approved Doctors in V.A. approved facilities so I wish to be granted some percent of compensation due [to] these events and I request to be fully reimbursed for all travel pay regarding these surgeries as well as not having to make any further co-payments for any treatment regarding my eyes.” A January 2018 VA development letter shows that the initial injury occurred on November 1, 2016, with treatment records related to this spanning November 1, 2016 to January 12, 2018. Next, the Veteran was afforded a March 2018 VA eye examination. It revealed diagnostic impressions of ectropia of the right eye from June 28, 2017, pseudophakia, and status post retinal detachment of the left eye from 2016. The VA examiner reviewed the claims file, and highlighted various VA procedures and diagnostic impressions from 2016 and 2017. The VA examiner found that replacement intraocular lenses were in both eyes, with visual disability secondary to retinal detachment. Next, a detailed April 2018 VA medical opinion was obtained. The VA examiner reviewed the claims file, and summarized the Veteran’s relevant medical history: In September 2004 our documents show the patient’s vision was 20/50 right eye (OD) and 20/20 left eye (OS). The patient had already undergone cataract surgery and IOL lens implants in both eyes before that time. The right eye was performed in the 1990’s by a private, outside provider (identity undisclosed in notes). The 20/50 best corrected vision was not explained but this appeared to be the patient’s baseline vision. In April 2007 the patient had a clinic procedure called a YAG laser capsulotomy to attempt to improve the vision OD. Vision was minimally improved post-op. The patient was seen several times for annual visits and appeared to have stable vision and lens placement each year until October 20, 2016 when an optometry exam noted an inferior decentration of the lens affecting the patient’s vision. The patient said his vision had been like that for one year ever since he was hospitalized for coronary bypass surgery and had experienced falls. Patient was consented Nov 29, 2016 for lens exchange with or without repair of retinal tears as a combined procedure with Dr. [G.] and Dr. [D.], MDs. The patient’s surgical repositioning December 12, 2016 was deemed a success and the lens was stable with 20/30 vision or better until Feb 14, 2017 when the lens haptic had migrated to the anterior chamber requiring another repositioning with inferior haptic scleral fixation on March 20, 2017. The patient did well for one week but the lens again dislocated posteriorly into the vitreous without known trauma on March 27, 2018. The patient was then consented for a combined retina/anterior segment case to remove the vitreous (PPV), explant the lens and implant an anterior chamber lens OD. The surgery took place April 03, 2017 without reported complications. The patient had low eye pressure (IOP) post op but had improving vision in subsequent visits but notably refused dilation as part of the exam on April 14 and May 9, 2017. On June 17, 2017 the patient was noted to have a macula “on” retinal detachment in routine follow up exam and was consented for another PPV with laser, gas and possible scleral buckle. The patient had a PPV, scleral buckle and cryosurgery performed by Dr. [D.] on June 21, 2017 without complications, but was found to have membranes that had formed on the retina. Post operatively the patient was also found to have right lower lid ectropion. This was managed topically with steroid ointment but was referred to oculoplastics for definitive surgical intervention. On October 16, 2017 the patient returned with a re-detachment of the retina inferiorly and vision that was count fingers at 4 feet. The patient did not elect to have another surgery to improve vision but instead decided to have lower lid ectropion repair by Dr. [H.] with oculoplastics. The patient later had a stroke and was hospitalized missing the scheduled surgical appointment with Dr. [H.]. Last, a medical opinion was rendered from the physician, the Acting Chief of Ophthalmology at the South Texas Veterans Health Care System (STVHCS). First, he opined that the injury/disability described above is related to or aggravated by the treatment noted above. Second, regarding any evidence of fault, carelessness or negligence in treatment, physician explained, “While the clinical and surgical courses were very unfortunate and not commonly seen, they are well-known complications and the risk of further complications increase with additional surgeries. All possible complications had been discussed pre-operatively and were contained in the signed, informed consents.” Last, regarding the resulting injury, the VA examiner opined that there was none, as the question was inapplicable, presumably given previous responses. The Veteran filed his Notice of Disagreement (NOD) in May 2018. He contends that he received four unsuccessful surgeries from VA Stoney Oak Surgical Clinic in San Antonio, Texas, which permanently caused vision loss in the right eye and disfigurement of the right eyelid. He asserts there was repeated malpractice by the surgeons. The Veteran perfected his appeal in July 2018. He described his theory of entitlement: I went to [a] V.A. facility for yearly eye checkup. I was advised by a V.A. medical representative that I must have an eye scan due to my diabetes. Evidently, without reading my chart, Mr. [R.] performed what is a standard procedure and dilated both eyes. The solution in the dilation liquid detached my lens which then began a serious of 4 surgeries which ended with permanent blindness in my right eye and permanent disfigurement of my right eyelid. None of this would have happened if my eyes had not been dilated by Mr. [R.]. I would now still have decent vision in both eyes. Mr. [R.] and V.A. are responsible for the first mistake and all subsequent’ mistakes. I did not do this to myself nor would I have allowed it to occur had I been advised the dangers of dilation substance to my right eyes. I was not informed of that possibility by any V.A. doctor or their representative. THE DECISION TO DILATE MY EYES WAS NOT MINE! I submit that V.A. is responsible and negligent for that decision which leaves me in this current physical state. I am requesting compensation for V.A. negligence. Additional VA and private treatment records are substantially the same, and show impressions of and treatment for a right eye disability, including multiple surgeries. The Veteran contends that most of his injuries should not have occurred because the surgeries were performed at different times by a number of different surgeons. This created a lack of continuity and understanding of his previous problems. As such, he avers that this caused or severely contributed to his current right eye condition. See May 2018 Notice of Disagreement (NOD), p. 2. In the instant case, with respect to whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider, the Board acknowledges the Veteran’s argument that he experienced right eye surgeries by several providers. The Board also acknowledges that he underwent multiple eye surgeries beginning in November 2016, as he has competently reported. The most probative evidence is the contemporaneous treatment records and the April 2018 VA medical opinion. The April 2018 VA examiner considered the Veteran’s contentions, and noted his ongoing history of several surgical procedures involving the right eye. The April 2018 VA medical opinion found no evidence of fault, carelessness or negligent treatment on the part of VA. The physician based his opinion upon a thorough, historical view of the Veteran’s ongoing treatment as it relates to his right eye disability. The Board finds this to be highly probative. As described in the April 2018 VA medical opinion, there appeared to be periods of improvement, albeit brief, following surgical operations. For example, as the physician highlighted, “The patient’s surgical repositioning December 12, 2016 was deemed a success and the lens was stable with 20/30 vision or better until Feb 14, 2017 when the lens haptic had migrated to the anterior chamber requiring another repositioning with inferior haptic scleral fixation on March 20, 2017. The patient did well for one week but the lens again dislocated posteriorly into the vitreous without known trauma on March 27, 2018.” This is largely consistent with the Veteran’s own lay reporting of his medical history. See Veteran’s October 2017 Statement in Support of Claim. The VA examiner compassionately explained the clinical and surgical courses based on his review of the claims file, “While the clinical and surgical courses were very unfortunate and not commonly seen, they are well-known complications and the risk of further complications increase[s] with additional surgeries.” The VA examiner ultimately found that there was no fault, carelessness or negligence in treatment by VA following the procedures in question, and for which the Veteran was not directed for additional treatment. We note that 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). In short, the Veteran’s contentions that VA failed to exercise the degree of care that would be expected of a reasonable health care provider in the circumstances surrounding his right eye disability are not supported by the most probative evidence of record. Next, the April 2018 VA examiner reasoned, “All possible complications had been discussed pre-operatively and were contained in the signed, informed consents.” Indeed, 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). The Board assigns substantial probative weight to the April 2018 VA examiner’s opinion regarding informed consent and foreseeability. The Board further observes that the April 2018 VA examiner highlighted at the end of his opinion that, “The patient did not elect to have another surgery to improve vision but instead decided to have lower lid ectropion repair by Dr. [H.] with oculoplastics.” This was supported by evidence identified in the record. The Board assigns substantial probative weight to this opinion and to the contemporaneous treatment records. The Board is sympathetic to the Veteran’s frustration with his ongoing right eye disability, including retinal detachment, visiting several different treatment providers, and eventual need for right eye lid surgery. The Board finds, however, that the preponderance of the evidence is against his contention that these disabilities were due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals, or that he was not fully informed as to the nature of the treatment, potential risks, and alternatives for care received by VA from November 2016 to January 2018. The Veteran’s contention that the decision to undergo the various procedures was not made with informed consent pales in comparison to the weight of the evidence. The most probative evidence demonstrates that the actions of the VA medical professionals do not otherwise demonstrate negligence or other failing such that the provisions for compensation benefits pursuant to 38 U.S.C. § 1151 have been met. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel