Citation Nr: 19132004 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 18-21 125 DATE: April 24, 2019 ORDER New and material evidence having been introduced, the claim of entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment is reopened. Entitlement to service connection for cataracts is denied. REMANDED Entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment is remanded. FINDINGS OF FACT 1. The Veteran’s claim for disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment was denied in a July 2015 rating decision. The Veteran was informed of that decision and his appellate rights, but did not appeal or submit new and material evidence within one year. 2. Evidence received into the record since the July 2015 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment. 3. A preponderance of the evidence shows that the Veteran’s cataracts are not etiologically related to service. CONCLUSIONS OF LAW 1. The July 2015 rating decision denying entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment is final. 38 U.S.C. § 1705(c); 38 C.F.R. § 20.1103 (2018). 2. The evidence received since the July 2015 rating decision is new and material, and the claim of entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for cataracts have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1955 to January 1959. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at an October 2018 Board hearing before the undersigned Veterans Law Judge. The transcript is of record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence 1. Whether new and material evidence has been introduced to reopen a claim of entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran’s claim for entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical medical treatment was originally denied in a July 2015 rating decision. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including lay statements, treatment records, and a private medical opinion. The Board finds this evidence “new,” because it postdates the aforementioned rating decision. The Board also finds the new evidence “material,” because it bears directly on points at issue on the question of entitlement to § 1151 compensation in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claim of entitlement to disability compensation under 38 U.S.C. § 1151 is reopened. Service Connection Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for cataracts The Veteran has been diagnosed with cataracts in both eyes, and has undergone surgery for the same; thus, the current disability requirement detailed above has been met. However, a review of the Veteran’s service records does not indicate the presence of cataracts or any other disability of the eyes during service, and there is no evidence disability developed in the wake of separation therefrom. Rather, the record reveals an intervening period of many decades before initial diagnosis, and the Veteran has not claimed any direct etiological relationship between his cataracts and active duty service. In fact, although a claim for service connection for cataracts is listed on the Veteran’s October 2017 VA Form 21-526EZ as well as the April 2018 VA Form 9, and thus must be addressed herein by the Board, he did not argue that his cataracts were etiologically related to service at his October 2018 Board hearing and has not otherwise advanced statements or argument to that effect. Finally, the Veteran has confirmed that he “is not claiming [service connection for] cataracts but the surgery which was done incorrectly,” in other words, the 38 U.S.C. § 1151 claim discussed elsewhere in this decision. Accordingly, and finding no significant evidence to support an etiological relationship between cataracts and active duty service, the Board must deny the claim for service connection. REASONS FOR REMAND 1. Entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left eye cataract surgery due to VA medical treatment is remanded. Unfortunately, the Veteran’s claim for disability compensation under 38 U.S.C. § 1151 requires additional development before final adjudication is possible. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant’s own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. §§ 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361 (a). 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 cause. 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 or 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 of fault 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 that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. In evaluating the Veteran’s claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151 (a)(1). The Veteran has contended that cataract surgery performed on his left eye in January 2012 has caused a range of complications, including double vision, and that the complications are a result of medical negligence on the part of the VA surgeon who performed the operation. The Veteran has maintained that the procedure, performed by a surgical resident under the supervision of a supervising surgeon, resulted in a ruptured cornea and improperly placed lens. The record reflects an opinion furnished by a VA examiner who reviewed the Veteran’s medical file and examined him in October 2013. That examination did not reveal a ruptured cornea, and that the Veteran’s double vision was unrelated to any historical cornea rupture. The examiner did not speak to the Veteran’s contention about the misplaced lens, and did not squarely address the question of whether the appropriate standard of medical care, as denied above, was met in the Veteran’s case. The Veteran has also submitted an October 2018 private statement indicating that he “has an irregular pupil with iris atrophy [which] could be related to [his] history of a ruptured cornea...during cataract surgery around 8 years ago. Without documentation from his cataract surgery, [the private provider is] not able to correlate his iris atrophy and irregular pupil with 100% certainty. However, the iris atrophy and irregular pupil are likely due to trauma.” Unfortunately, this private opinion also fails to consider whether the January 2012 procedure performed on the Veteran’s left eye failed to meet the requisite standard of medical care as described above, even assuming the procedure resulted in trauma to the eye. Thus, on remand, a VA examiner must review the record, including the October 2018 private provider’s statement, and opine as to whether the January 2012 cataract surgery performed on the Veteran’s left eye involved carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of VA, and if so, whether that fault resulted in additional disability to the Veteran over and above that level that would have obtained in the absence of fault. The matter is REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claim. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, forward the claims file to a VA examiner for review. The examiner is directed to opine as to whether (1) the January 2012 cataract surgery performed on the Veteran’s left eye was performed with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, and (2) whether any such fault resulted in an additional degree of disability beyond that which would have occurred in the absence of fault, OR (3) whether there was additional disability due to an event not reasonably foreseeable. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to disability compensation under 38 U.S.C. § 1151. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel