Citation Nr: 18158703 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 18-16 954 DATE: December 18, 2018 ORDER Entitlement to compensation under 38 U.S.C. 1151 for vision loss due to surgery is denied. REMANDED Entitlement to special monthly compensation at the aid and attendance level is remanded. Eligibility for assistance in acquiring specially adapted housing is remanded. Eligibility for a special home adaptation grant is remanded. REFERRED In November 2018, the Veteran submitted a VA Form 21-526EZ “Application for Disability Compensation and Related Compensation Benefits” claiming entitlement to higher disability ratings for his service-connected deep vein thrombosis of the bilateral lower extremities and requesting to reopen his “Agent Orange claim” based on the submission of new medical evidence. In a statement submitted earlier that month, the Veteran asserted that he has multiple myeloma associated with Agent Orange exposure. These raised claims have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ) and are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b); see 79 Fed. Reg. 57,696 (Sept. 25, 2014) (codified at 38 C.F.R. §§ 19.23-19.24) (requiring that claims and notices of disagreement be filed on standard forms, effective March 24, 2015). FINDING OF FACT The Veteran does not have additional eye disability proximately caused or aggravated by VA medical treatment. CONCLUSION OF LAW The criteria for entitlement to compensation for vision loss under 38 C.F.R. § 1151 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 February 1970 to November 1971 and from October 1981 to August 1985. Entitlement to compensation under 38 U.S.C. 1151 for vision loss due to surgery When a veteran suffers additional disability as the result of VA training, hospital care, medical or surgical treatment, or examination, disability compensation shall be awarded in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. For claims filed on or after October 1, 1997, as in this case, a claimant must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C. § 1151. From the plain language of the statute, it is clear that to establish entitlement to 38 U.S.C. § 1151 benefits, all three of the following factors must be shown: (1) disability/additional disability, (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the VA medical or surgical treatment to the veteran's condition after such medical or surgical treatment has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish causation. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical or surgical treatment proximately caused a veteran's additional disability, the veteran must show that the medical or surgical treatment caused the additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Id. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is 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. See 38 C.F.R. § 3.361(d)(2). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In this case, the Veteran contends that he suffered additional vision loss as a result of May 2015 and February 2016 eye surgeries performed by VA. Specifically, on his March 2018 VA Form 9, the Veteran asserted that he suffers from low vision due to his May 2015 cataract surgery and shunt implant, which he believes led to a torn/detached retina. The Veteran was provided with a VA examination pertaining to this claim in January 2017. It was noted that the Veteran was initially seen by VA in March 2004 for preexisting glaucoma, for which he was on topical medications. He was seen sporadically at several VA medical centers over the subsequent years and admitted to non-compliance with his medications. During that time, his visual fields diminished, noted by the examiner to be a sign of disease progression, and he suffered markedly high intraocular pressure in his right eye. The Veteran underwent combined cataract and glaucoma surgery in a VA hospital in May 2015, after which his intraocular pressure and acuity improved. Six months after surgery, he developed very low intraocular pressure and small choroidal detachments. The condition was managed conservatively and he improved. In January 2016, his care providers strongly suspected a retinal detachment superimposed on a resolving choroidal detachment. He was referred for evaluation and surgery, and retinal detachment surgery was performed in February 2016 using vitrectomy techniques and silicone oil. The examiner noted that the Veteran did well after the surgery and his corrected acuity had improved. May 2015 VA surgical records document that the Veteran underwent an uneventful phacoemulsification of the left eye lens with implantation of an intraocular lens and placement of an Ahmed glaucoma valve. His visual acuity was found to be 20/40 in the left eye with intraocular pressure of 7 on the first post-operative day. Approximately two weeks later, treatment records note that the Veteran was feeling well and reported an increase in his visual acuity in the left eye. In November 2015, the Veteran reported that his visual acuity in the left eye was down; this was confirmed by testing and his intraocular pressure in that eye was 1 and a small choroidal detachment was present, which was noted to occur when intraocular pressure is too low. In January 2016, the Veteran’s visual acuity was documented as “count fingers at 2 feet” in the left eye, with intraocular pressure of 3. The choroidal detachment was resolving, but observance of subretinal fluid led the VA care providers to theorize that a retinal detachment may be present. VA treatment records document that the Veteran underwent an uneventful pars plana vitrectomy and scleral buckle on the left eye. The examiner stated an opinion that the proximal cause of the Veteran’s vision problems were his glaucoma and his non-compliance with treatment visits and medications. She noted that six months elapsed from the original VA cataract/glaucoma surgery and the development of the choroidal detachment, which she opined was “too long a period of time to implicate the original surgery in the pathogenesis of the choroidal detachment.” Rather than resulting in additional disability, the surgery was found to result in excellent visual acuity and excellent intraocular pressure in the left eye after the initial procedure. The disease progression was found to be due to his non-compliance with followup appointments and topical medications, rather than to any action or delayed action by VA. Despite the Veteran’s assertions, the Board finds that the weight of the evidence is against a finding that the Veteran sustained additional disability as a result of VA treatment. The Board finds the opinion of the January 2017 VA examiner to constitute the most probative evidence of record regarding the etiology and progression of the Veteran’s eye/vision disability. While it is clear that the Veteran’s condition progressed during the course of his VA treatment, no competent opinion directly links the progression of the disability and decline in visual acuity and visual fields to VA care/surgery. Regarding the lay assertions from the Veteran, he is competent to describe his symptoms and repeat the diagnoses rendered by his medical care providers. However, the Board accords his statements regarding the proximate cause or aggravation of his eye disability little probative value as the Veteran is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465. The Veteran has offered only conclusory statements when contending that his detached retina was caused or aggravated by improper care by VA, specifically that his May 2015 cataract/glaucoma surgery resulted in additional disability. While the evidence of record demonstrates that the detached retina in his left eye occurred after the May 2015 surgery, that fact alone does not indicate a direct relationship between the surgery and the subsequent development of the detached retina. By contrast, the VA examiner took into consideration all of the relevant facts in providing her opinion, to include the fact that 6 months had passed following the surgery, with improvement in visual acuity documented immediately and during the month following surgery. Therefore, the Board accords greater probative weight to the VA opinion in this case than to the Veteran's statements. Based on the foregoing, the Board cannot find that the Veteran sustained additional disability as a result of VA care. The evidence shows that he suffered progressive vision loss in the left eye, with improvement immediately following uneventful cataract/glaucoma surgery in May 2015, and that he subsequently developed detached retina in the left eye with improvement following uneventful surgery in February 2016. Further, even if VA surgical treatment and/or care had proximately caused additional eye disability, the most probative evidence of record, the VA examiner’s conclusion, also weighs in favor of a finding that there was no fault in VA’s provision of care. Therefore, the preponderance of the competent and probative evidence is found to be against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application, and compensation under 38 U.S.C. § 1151 for vision loss due to VA surgical care is not warranted.   REASONS FOR REMAND 1. Entitlement to special monthly compensation (SMC) at the aid and attendance rate is remanded. The Veteran asserts that he is entitled to SMC based on being rendered so helpless by his service-connected disabilities as to be in need of regular aid and attendance. The Veteran is presently in receipt of service connection benefits for posttraumatic stress disorder (PTSD) with a 100 percent disability rating, deep vein thrombosis of the left lower extremity with a 60 percent disability rating, deep vein thrombosis of the right lower extremity with a 40 percent disability rating, hearing loss with a 10 percent disability rating, and tinnitus with a 10 percent disability rating. The Veteran was provided with a VA examination for housebound status or permanent need for regular aid and attendance in April 2016, at which the physician noted that the Veteran’s activities and functions were restricted by blindness, PTSD/depression, and leg disabilities. The examiner checked boxes indicating that the Veteran was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs due to “legal blindness [and] chronic pain.” No further explanation/description was provided as to the specific limitations imposed or assistance needed by the Veteran. On remand, additional examination should be provided to ascertain the functional limitations on the Veteran’s ability to engage in activities of daily living due only to his service-connected disabilities. The Board notes that an appeal concerning entitlement to service connection for an eye disorder, including glaucoma, was remanded by the Board in June 2018 for further development including the provision of an additional VA examination to address whether an eye disorder was caused or aggravated by other service-connected disability. Such development has not yet been completed. Further, because a decision on the issue of entitlement to service connection for an eye disability, currently in post-remand status, could significantly impact a decision on the issue of entitlement to SMC based on the need for aid and attendance, the issues are inextricably intertwined. 2. Eligibility for assistance in acquiring specially adapted housing is remanded. As noted above, the Veteran has filed a claim for increased disability ratings for his service-connected deep vein thrombosis of his left and right lower extremities. Because a decision on these referred issues could significantly impact a decision on the issue of eligibility for assistance in acquiring specially adapted housing, the issues are inextricably intertwined. A remand of this claim is therefore required. 3. Eligibility for a special home adaptation grant is remanded. Finally, because a decision on the issue of entitlement to service connection for an eye disability, currently in post-remand status, could significantly impact a decision on the issue of eligibility for a special home adaptation grant, the issues are inextricably intertwined. A remand of this claim is therefore required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the Present. 2. Complete the development requested in the June 2018 remand, including but not limited to readjudicating the issue of entitlement to service connection for an eye disorder. 3. Thereafter, schedule the Veteran for a VA aid and attendance/housebound examination. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. The examiner should be provided with a complete list of the Veteran’s service-connected disabilities. The examiner should evaluate the Veteran for the purpose of determining the current severity of his service-connected disabilities and his need for regular aid and attendance. The examiner should elicit from the Veteran a description of the functional limitations caused by his service-connected disabilities and how they affect his ability to conduct activities of daily living, and a description of the types and frequency of assistance he presently receives. If necessary to answer the following questions, the examiner should order any additional examinations specific to any of the Veteran's service-connected disabilities. The examiner is also instructed to explicitly answer the following questions: a) Is the Veteran at least as likely as not permanently bedridden due to his service-connected disabilities, alone? ("Bedridden" will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.) b) Due only to his service-connected disabilities, is it at least as likely as not that the Veteran experiences any of the following limitations: i. Inability to dress or undress himself; ii. Inability to keep himself ordinarily clean and presentable; iii. Inability to attend to the wants of nature; iv. Incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. *Note: If the Veteran requires assistance with any of the above, the examiner should comment upon the frequency and duration of such need. Responses to the above should not merely be stated as “yes” or “no,” but rather should include details elicited from the Veteran concerning any such limitation and identification by the examiner of what service-connected disability or disabilities result in such limitation. If the Veteran requires assistance with any of the above due to a nonservice-connected disability, the examiner should identify the disability. The examiner should be instructed that he/she is only to consider service-connected disabilities in responding to the aforementioned inquiries. It is important for the examiner to identify and separate the Veteran's symptoms among his various service-connected and nonservice-connected disabilities and only consider those symptoms related to service-connected disabilities and the effects they have on his functioning. If the examiner cannot determine whether certain functional impairment is more likely than not attributable to a non-service connected, rather than service-connected disability, they should so state. The examiner should provide a rationale/explanation for any and all opinions provided and conclusions reached. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (Continued on the next page)   4. Thereafter, review the requested medical examination report to ensure that it is responsive and fully complies with the directives of this remand; implement corrective procedures as needed. 5. After completing the aforementioned, and any other development deemed necessary in light of the expanded record, readjudicate the issues of entitlement to SMC at the 38 U.S.C. 1114(l) level, eligibility for assistance in acquiring specially adapted housing, and eligibility for a special home adaptation grant. If the claims remain denied, the AOJ should issue a Supplemental Statement of the Case and afford the Veteran and his representative an opportunity to respond before returning the appeal to the Board for further appellate review, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel