Citation Nr: 18152390 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-47 094 DATE: November 21, 2018 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for a bilateral eye disorder as a result of cataract surgeries in February 2009 and December 2012 is denied. FINDING OF FACT The Veteran did not develop an additional disability of the eyes as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a bilateral eye disability related to VA treatment have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1957 to July 1957, June 1958 to August 1958, and March 1967 to May 1967. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a rating decision issued in August 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a January 2017 rating decision originally denied service connection for a bilateral eye disorder and the Veteran entered a notice of disagreement as to such denial later that month; however, in March 2017, he withdrew his appeal and indicated that he only wished to pursue compensation under 38 U.S.C. § 1151 for a bilateral eye disorder. Consequently, the issue is limited to the issue as set forth on the title page of this decision. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a bilateral eye disorder as a result of cataract surgeries in February 2009 and December 2012. The Veteran contends that he developed fatty tissue in the subconjunctiva of the eyes due to VA cataract surgeries performed on February 10, 2009, and December 13, 2012, and, as such, is entitled to compensation for such disorder. Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In Viegas v. Shinseki, the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a “qualifying additional disability” that was not the result of his own “willful misconduct.” 38 U.S.C. § 1151(a). Second, that disability must have been “caused by hospital care, medical or surgical treatment, or examination furnished the veteran” by VA or in a VA facility. Finally, the “proximate cause” of the veteran’s disability must be “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part” of VA, or “an event not reasonably foreseeable.” See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); § 1151(a)(1)(A), (a)(1)(B). Thus, section 1151 contains two causation elements-a veteran’s disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. In determining whether a veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after care or treatment is rendered. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of injury for which the care or treatment 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability, it must be shown that the hospital care or medical or surgical treatment caused the Veteran’s additional disability; 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. 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). Whether the proximate cause of a veteran’s additional disability 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). VA treatment records dated since 2004 included an assessment of cataracts in both eyes, which progressively worsened. The Veteran was evaluated and counseled regarding surgery for cataract extraction and, after he provided informed consent, he underwent right eye phacoemulsification with insertion of posterior chamber intra-ocular lens on February 10, 2009. Operative notes suggest that there were no complications resulting from the procedure. Two days later, he was seen for complaints of redness, itching, and burning. Examination revealed no abnormalities. He was counseled to continue with post-operative care at home and, on follow-up approximately two weeks later, no complaints were reported and no abnormalities were noted. On December 13, 2012, the Veteran underwent the same procedure for extraction of a cataract in his left eye. Operative notes reflect no complications. Two days after the surgery, he presented with complaints of redness and irritation. Examination revealed no objective evidence of corneal abrasion or infection. He was instructed to continue taking his prescribed eye post-op medications. He was seen again approximately two weeks later and no abnormalities were reported or noted. Subsequent ophthalmological evaluation notes revealed no abnormalities of the conjunctiva of either eye until 2014. On diabetic eye examination in May 2014, the Veteran complained of protruding fat on the right eye that was getting worse. He was diagnosed with bilateral prolapsed orbital fat, with greater protrusion in the right eye. In July 2017, following a review of the claims file, a VA physician opined that it was less likely as not that the Veteran’s claimed bilateral orbital fat prolapse was caused or aggravated by VA treatment, including the 2009 and 2012 cataract surgeries. In this regard, he concluded that there was no additional disability as a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, or from an event that could not have reasonably been foreseen by a reasonable healthcare provider. He further determined that there was no failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability such that the disease or disability was allowed to continue to progress. In this regard, the VA physician noted that the Veteran had undergone left eye cataract surgery, phacoemulsification with insertion of posterior chamber intra-ocular lens, in December 2012, and the same procedure had been performed to the right eye in February 2009. The records showed that the Veteran developed bilateral fatty mass in the right anterior orbit areas. The condition, diagnosed as subconjunctival prolapse of orbital fat, resulted when the orbital fat, normally present in the eye, herniated into the conjunctiva. The VA physician noted that subconjunctival prolapse was a rare condition and the actual cause was generally not known. However, the medical literature did not reflect that the condition was a known complication of cataract surgery. In this regard, the VA physician explained that cataract surgery did not normally precede subconjunctival prolapse, and pointed out that, in a study of patients who developed the condition, none had previously undergone cataract or other eye surgery. Moreover, cataract surgery did not involve the area of the eye affected by the condition, nor the periorbital structures. The VA physician further concluded that a review of the medical records, including the operative reports, failed to disclose any events that could have caused this condition. Although the subconjunctival prolapse was noted some years after his cataract surgeries, the sequence of events was purely coincidental, and there was no evidence to support a finding consistent with a cause and effect relationship. The Board accords great probative weight to the July 2017 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant treatment records, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is also no medical opinion to the contrary. The Board acknowledges the Veteran’s assertion that he has subconjunctival prolapse due to treatment received at VA because the condition did not pre-exist the 2009 and 2012 cataract surgeries. The Board acknowledges that he is competent to describe symptoms capable of lay observation. He is not competent, however, to offer a medical diagnosis or etiological opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship is it requires knowledge of the ophthalmological system and the potential impact of cataracts surgery on the inner workings of the eye. Accordingly, the Veteran’s opinion as to the etiology of his bilateral eye disorder is not competent evidence and, consequently, is afforded no probative weight. Therefore, the Board finds that the Veteran did not develop an additional disability of the eyes as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. Consequently, compensation under the provisions of 38 U.S.C. § 1151 for a bilateral eye disorder as a result of cataract surgeries in February 2009 and December 2012 is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the instant claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana