Citation Nr: 18151680 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-45 411 DATE: November 20, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional left eye disability resulting from VA eye surgery in March 2012, is denied. FINDING OF FACT Additional disability manifested as a result of left eye cataract surgery in March 2012 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. CONCLUSION OF LAW The criteria for compensation pursuant to the provisions of 38 U.S.C. § 1151 for additional disability resulting from left eye cataract surgery in March 2012 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to March 1966. 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional left eye disability resulting from VA eye surgery in March 2012. The Veteran maintains that he is entitled to compensation under 38 U.S.C. 1151 for the additional left eye disability he now has due to March 2012 VA surgery. At his June 2018 hearing the Veteran reported that his left eye was much worse after the surgery than before. He said that he now has less vision, he has left eye pain and he has photophobia. The Veteran asserted that there was fault on the part of the surgeon on operating on him too soon. He testified that his left eye cataract was small and that the VA surgeon should have waited until the cataract was larger before removing it. The Veteran stated that it is more dangerous to remove a cataract when it is small. As explained below, the most probative evidence of record, a July 2013 VA medical opinion, is against a finding that there was any carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA. A Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Veteran underwent left eye cataract surgery on March 21, 2012. The record indicates that, during the surgery, the capsule broke and the lens fell to the back of the left eye. On March 22, 2012 the Veteran again underwent left eye surgery to remove the retained lens fragment and for insertion of intraocular lens. A July 2012 ophthalmology follow-up report reveals that the Veteran complained of significant photophobia, soreness and ocular irritation on the left. The examiner stated that she was quite pleased with the Veteran’s ocular appearance from a technical standpoint following the March 2012 surgeries. She noted that the left eye visual acuity was excellent and that the implant appeared to be in pretty good position. She did note that the Veteran had significant symptoms of ocular irritation and photophobia. The Veteran was examined by a VA ophthalmologist in July 2013. The VA examiner noted that, in March 2012, the Veteran underwent complicated cataract surgery with dropped piece of lens and subluxed intraocular lens. A retina specialist completed pars plana vitrectomy and sutured an intraocular lens. The left eye best corrected visual acuity was now 20/25. The Veteran reported that his left eye was now not perfectly clear in glasses. The examiner stated that the Veteran had mild disability of the left eye, with decreased vision, most likely from the ophthalmic surgery. He opined that the left eye surgical treatment was within the standard of care for our area. He opined that the treatment was not careless or negligent, and did not show lack of judgment. As to whether the subsequent left eye symptoms are a reasonably foreseeable outcome or surgical complication of the March 2012 left eye surgery, the Board notes that, prior to surgery, the Veteran signed an informed consent. It specifically noted that the surgery came with the possibility, among others, of “dislocated lens, loss of vision, pain in the eye, changes in vision, blurring, inflammation of the eye tissues, and that the procedure may not cure or relieve the condition/symptoms.” Consequently, the Board finds that the additional left eye disability was a reasonably foreseeable outcome of the surgical treatment. The Board acknowledges the Veteran’s assertions that his left eye cataract was small and should not have been surgically removed until it was larger. However, the record contains no competent medical evidence indicating that the cataract removal surgery should have been delayed due to the size of the cataract. Although the Veteran submitted a medical article at his June 2018 hearing regarding retained lens fragments, this article does not provide any information regarding size of cataracts and when they should be removed. Furthermore, the article provides no other information relevant to whether there was fault on the part of left eye surgeon or whether the outcome was not reasonably foreseeable. Given the Veteran’s lack of demonstrated medical expertise and the complexity of the left eye treatment, the Board concludes that in this case his statements regarding any fault on the part of the medical providers are significantly outweighed by the July 2013 medical opinion and have no probative value. The Board recognizes that the March 2012 VA eye surgery resulted in some additional disability. However, this alone is not enough for the grant of compensation under 38 U.S.C. § 1151. As the most probative evidence of record indicates that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment, and as the additional disability was reasonably foreseeable, the Veteran does not warrant entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional left eye disability. (CONTINUED ON NEXT PAGE)   For the foregoing reasons, the preponderance of the evidence is against the claim for compensation under the provisions of 38 U.S.C. § 1151 for additional disability resulting from March 2012 left eye surgery. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel