Citation Nr: 19154158 Decision Date: 07/12/19 Archive Date: 07/12/19 DOCKET NO. 17-14 840 DATE: July 12, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for loss of vision in the left eye is denied. FINDING OF FACT The Veteran’s loss of vision in the left eye was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for loss of vision in the left eye have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1952 to September 1954 and from January 1955 to January 1957. This matter is on appeal from a January 2014 rating decision. The Board previously remanded this matter in December 2017 and September 2018 for additional development. As the actions specified in the most recent remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to compensation under 38 U.S.C. § 1151 Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if that additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability was (a) 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 (b) an event not reasonably foreseeable. 38 U.S.C. § 1151(a). To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 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 additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability 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 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 is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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, medical or surgical treatment, or examination caused the additional disability. It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, representative’s 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). The Veteran contends that he is entitled to compensation pursuant to the provisions of 38 U.S.C. § 1151 for his loss of vision of the left eye as a result of medical and surgical treatment provided by the West Haven VA Medical Center (VAMC). The Veteran generally asserts that he lost his vision in the left eye due to the negligence and inaction of the doctors in the Ophthalmology Clinic (retina clinic) at the West Haven VAMC. However, the Board notes that he has not put forth any specific contentions as to how he believes the doctors were negligent in their medical care, except to state that they are to blame for his condition. VA treatment records show that the Veteran first visited the West Haven VAMC Ophthalmology Clinic in January 2001. Treatment notes from the visit detail that the Veteran has had type 2 diabetes mellitus for at least 25 years and had never seen an eye doctor. He reported several prior episodes of experiencing “dirty vision.” The Veteran was found to have vitreous hemorrhage in his right eye and proliferative diabetic retinopathy in his left eye. He was urged by the treating physician to undergo panretinal photocoagulation (PRP), a laser treatment of the retina, that day, however the Veteran wanted to wait until he could be seen by a retina specialist. He was advised of the risks of delaying treatment. The Veteran returned to the Ophthalmology Clinic in March 2001 to undergo laser PRP in his right eye. In May 2001, he was scheduled to undergo PRP in his left eye, however, on the date of the procedure he refused treatment. According to the treating physician’s note, “… despite educating patient that PRP is needed in both eyes and that blindness may result from not doing laser, patient still does not want any PRP to be done on his left eye currently. Patient wants his right to be ‘clear’ prior to laser [on the left eye].” The Veteran next returned to the Ophthalmology Clinic in October 2002, a year and a half after being told he needed laser treatment on his left eye. At that time, he reported a dark spot in his lateral field of vision in the left eye. He reported that he began noticing vision changes six months ago. The Veteran underwent two sessions of PRP laser treatment and was told to return to the retina clinic in four to six weeks for follow-up. The Veteran did not return. The Veteran presented to his VA primary care provider in March 2003 complaining of left eye bleeding. He reported to the primary care physician that he had laser surgery, but that his eye has not improved or changed since then. The physician noted that he had never returned to the retina clinic for follow-up as requested by his ophthalmologist. The Veteran was referred to the Ophthalmology Clinic where he underwent laser PRP in the left eye. He was told to return in two weeks for follow-up; he did not return. The Veteran returned to the Ophthalmology Clinic in August 2003. He reported bleeding in his left eye for the past month and stated that his vision was worse. He was found to have vitreous hemorrhage. In the progress note, the attending ophthalmologist noted, “… patient has been non-compliant, so will try to do as much laser as possible in the next few weeks.” However, laser PRP could not be performed due to a poor view of the retina caused by the vitreous hemorrhage. The vitreous hemorrhage cleared enough at the end of November 2003 for the doctor to perform two sessions of PRP on the left eye. In a December 2003 treatment note, it was noted that the Veteran’s vision in the left eye had gone from 20/60 to 20/200 in the past six months and he was recommended to undergo a surgical procedure known as a vitrectomy to remove the hemorrhage. However, the Veteran declined and stated that he would like to undergo additional laser treatments instead. Thereafter, the Veteran did not show up for his follow-up appointments for PRP at the retina clinic. An April 2004 endocrinology note states that the Veteran’s diabetes mellitus is poorly controlled due to the Veteran’s non-compliance with diet and medication, including self-adjusting his insulin against the advice of his doctors. The Veteran returned to the Ophthalmology Clinic in October 2004. The vitreous hemorrhage was still present in his left eye. His doctor again recommended that he undergo a vitrectomy as the hemorrhage was unlikely to clear on its own. The Veteran stated that he preferred to wait because he felt like his vision was improving. He was told to return in three to four weeks. The Veteran next returned to the retina clinic in February 2005. He was found to have dense hemorrhaging centrally with new bleeding. According to a note by the attending retina specialist, “[I] explained the findings to the patient as well as the only option for him to improve vision, which is surgery. Explained benefits and risks.” The Veteran agreed to undergo the surgery in one month. He returned to the clinic the next day to meet with the surgeon, Dr. D., who again explained the benefits and risks of surgery. The surgery was scheduled, however, according to a March 2005 primary care note, the Veteran cancelled the surgery and stated that he was going to seek a second opinion from an outside ophthalmologist. In a May 2005 ophthalmology note, the surgeon, Dr. D., noted that the Veteran had scheduled and then cancelled the eye surgery twice. He returned to the clinic expressing interest in surgery a third time. Dr. D. explained the importance of medical and surgical compliance to the Veteran. On May 17, 2005, the Veteran gave informed consent and underwent a pars plana vitrectomy (PPV) with Endolaser treatment to clear the vitreous hemorrhage and to repair a tractional retinal detachment in the left eye. According to Dr. D.’s surgical report, the surgery was completed successfully with no complications. The Veteran returned for a post-operative follow-up two weeks following the surgery. He was advised on the importance of using prescribed eye drops every day and returning for follow-up. The Veteran returned to the retina clinic in June 2005 complaining of left eye pain. He reported that he had just returned from a trip to Italy and had not used his eye drops during the two week trip. Dr. D. noted that the Veteran was non-compliant with medications and with follow-up appointments. The Veteran was found to have rhegmatogenous retinal detachment with early neovascularization, which required another pars plana vitrectomy, as well as silicone oil injection and intraocular lens implantation. In a June 20, 2005 pre-operative evaluation, Dr. D. noted: “Benefits and risks explained to the patient. Patient understands that risks of surgery this time are much higher than first time due to his uncontrolled diabetes, inflamed [left] eye, hyphema, and retinal detachment. Patient also known to be non-compliant with medical therapy. Explained importance of follow ups.” The Veteran gave informed consent and the surgery was performed, which Dr. D. noted was performed successfully with no complications. In September 2005, the Veteran presented at the Ophthalmology Clinic with complaints of tearing of the left eye and decreased vision. Upon examination, he was found to have recurrent hemorrhage once again. The surgeon, Dr. D. explained the findings to the Veteran and advised him to wait three to four weeks for the blood to clear up before making a decision about another surgery. The Veteran called Dr. D. the next day and requested a second opinion. Dr. D. explained that he was the only retina specialist at the VAMC and provided the Veteran with a list of outside retina specialists. In an addendum to the September 2005 medical note, Dr. D. wrote: “I called [patient] who stated that he’s unhappy with his ocular condition. Feels that he’s losing his eye. Reexplained to him the gravity of his disease, his prognosis, and his medical non-compliance that all play a role in his deteriorating eyesight. [Patient] was seen by me for the first time in Oct 2004 at which time, I recommended [surgery] for chronic non-clearing vitreous hemorrhage (VH). [Patient] refused at the time despite all warnings …. [Patient] postponed his surgery twice and didn’t show up once at his scheduled surgery, and finally decided to have it done in May 2005 (7 months after the initial presentation to me). From a simple [left eye] VH in October 2004, [patient] went on to develop tractional retinal detachment with non-clearing VH that required major surgery. One week after his surgery he took a flight to Italy. While in Italy he didn’t use his post-op meds as recommended and when he presented for follow up his eye was severely inflamed. He went on to develop another hemorrhage with retinal detachment for which he required a second procedure….” The Veteran was scheduled for a third eye surgery in September 2005, which he cancelled, citing being unhappy with his prior surgical outcomes. According to an addendum written by Dr. D., he explained the importance of medical compliance and follow-up to the Veteran, as well as explained that his visual prognosis for the left eye was grim without surgical intervention due to his non-compliance and uncontrolled diabetes. In December 2005, the Veteran presented at the retina clinic stating that he was there for pre-operative evaluation, though, according to the medical record, the Veteran was not scheduled for an appointment or surgery. The attending physician noted that the Veteran “is well-known to the retina department for not being compliant and missing many appointments. Was scheduled for surgery in September… but cancelled his surgery at the last minute as he did many times before… despite all warnings and risks presented to him. [Patient] seems unaware of the gravity of the situation and is in partial denial.” Upon examination, the Veteran’s left eye was found to be pre-phthisical (beginning to shrink due to severe damage) and with no light perception. The Veteran was advised by the attending physician, as well as the surgeon, Dr. D., that further treatment on the left eye would no longer be beneficial as he no longer has vision in the eye. The Veteran was evaluated by a private retina specialist, Dr. L., in February 2006. Upon examination, Dr. L. confirmed a diagnosis of complex retinal detachment in the left eye, status post multiple surgeries with no light perception vision and a manifest exotropia. According to the examination report, Dr. L. found that the Veteran’s visual prognosis for the left eye was very poor. It does not appear that follow-up treatment or possible surgical intervention were discussed. In July 2006, the Veteran requested that VA arrange for him to receive a second opinion and he agreed to be seen at the retina clinic by a visiting retina specialist, Dr. P. However, at the time of the appointment, the Veteran refused to be seen by Dr. P. upon finding out that he was affiliated with the Yale University Eye Center. The Veteran did not specify why this specialist was unsatisfactory. In September 2006, VA arranged for an outside retina specialist, Dr. W. to come to the Ophthalmology Clinic to examine the Veteran. Dr. W. concluded that there was nothing further that could be done to treat the Veteran’s left eye. Thereafter, Dr. C.P., a doctor from the Ophthalmology Clinic, met with the Veteran and a VA patient advocate. At the meeting, the Veteran expressed anger that he was not being offered additional surgery on his left eye. Dr. C.P. explained to the Veteran that surgery was no longer a viable option and would not result in improved vision. The doctor also noted that he has previously arranged outside opinions for the Veteran with three retina specialists, including Dr. W., who have all concluded that he is no longer a candidate for surgery. The Veteran next presented for an eye examination with the optometry department in February 2010. Upon examination, he had barely light perception in the left eye. The Veteran expressed being very upset about the sequela of the left eye. The treating optometrist reiterated that there is no further symptom intervention or treatment that will improve the vision in his left eye. He was scheduled for a follow-up with a retina specialist in the Ophthalmology Clinic, Dr. K., six days later, however, the Veteran did not show for the appointment. In October 2012, the Veteran presented once again in the optometry department stating that the vision in his left eye had improved and that he could detect light and motion in his peripheral vision. Upon examination, the optometrist noted that the Veteran was barely light perception, only noticing light off to the left or right, but unable to detect light when presented in primary gaze. The Veteran insisted to the optometrist that his left eye “can be operated on.” However, the optometrist reiterated that, as several specialists have concluded, surgery is not an option and will not result in improved vision. The Veteran requested a retina consultation. He was scheduled for an appointment with the retina specialist, Dr. K., two weeks later, however, the Veteran did not show for the appointment. In May 2013, the Veteran once again made an appointment for a consultation with Dr. K., the retina specialist at the Ophthalmology Clinic. The Veteran arrived for the appointment, and then refused to be seen by Dr. K., stating that his lawyer had advised him not to be seen by VA doctors anymore. Dr. K. later called the Veteran and offered him the opportunity to return for an examination. Dr. K. explained to the Veteran that he had not been examined by ophthalmology since August 2006, and that patients with diabetes and retinal disease should be examined every four months. Dr. K. told the Veteran that he could come back to the clinic anytime he wished. Two weeks later, the Veteran returned to the retina clinic and again inquired as to whether surgery could fix his left eye. Dr. K. discussed the Veteran’s prognosis at length with the Veteran, explaining that his eye is phthisical and that loss of vision is permanent. He was told that no ocular surgery would be able to improve his vision. The Veteran verbalized understanding, but then later called Dr. K. to notify him that he had audio recorded the examination and would be pursing legal action. In May 2014, the Veteran contacted Dr. K. to express displeasure with the treatment he received from the Ophthalmology Clinic and indicated that he blames the doctors there for his loss of vision in the left eye. He again threatened to take legal action. He also alleged that he has received conflicting information and diagnoses from the ophthalmologists and the optometrists at the VAMC, which the doctor notified him was not supported by his medical records. In June 2014, Dr. M.E., the Chief of Staff for the VA Connecticut Healthcare System wrote a letter to the Veteran. In the letter, Dr. M.E. stated that he had reviewed the Veteran’s case and the following facts. Between January 2001 and August 2006, the Veteran had over 50 visits and two retina surgeries with VA ophthalmologists at the West Haven VAMC. Moreover, the Veteran was evaluated by four different retina specialists and was referred, but refused, to see a fifth. Nonetheless, the Veteran’s vision continued to deteriorate to no light perception. The Director of Eye Care Services also reviewed the Veteran’s records and determined that the care delivered was appropriate. A VA medical opinion was obtained in February 2018. Upon review of the Veteran’s medical records, the examiner, a VA optometrist, concluded that “the cause of [the Veteran’s] vision loss in the left eye is due to uncontrolled diabetes mellitus and a long history of medical non-compliance. It is clearly and extensively documented that the patient refused and delayed treatment, he cancelled multiple surgeries, or failed to show up. It is clearly and extensively documented that the Veteran did not follow doctor instructions regarding medication use and returning for follow up appointments and follow up care.” Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to VA compensation pursuant to 38 U.S.C. § 1151. In making this determination, the Board notes that there is no dispute that the Veteran presently has additional disability, in the form of loss of vision in the left eye, from when he first began receiving treatment at the West Haven VAMC Ophthalmology Clinic in January 2001. However, the medical evidence of record does not support a finding that his additional disability was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. 38 C.F.R. § 3.361(c)(1). Additional disability 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). In this regard, the record shows a clear pattern in which the Veteran repeatedly delayed and cancelled treatments and surgeries recommended by the VA ophthalmologists at the retina clinic. Despite consistent warnings by his doctors of the risks that uncontrolled diabetes and medical non-compliance posed to his deteriorating retinal condition, including blindness, the Veteran frequently did not follow his doctors’ instructions and failed to attend follow-up appointments, sometimes waiting several months to over a year before returning to the retina clinic for evaluation or to report a worsening of his left eye condition. Moreover, the evidence does not support that any particular medical care, surgical treatment, or examination resulted in the Veteran’s loss of vision, and the Veteran has not pointed to any particular event that caused his additional disability. Instead, the weight of the evidence supports a finding that a loss of vision was a reasonably foreseeable event, due to the Veteran’s uncontrolled diabetes, delayed treatment, and non-compliance with his doctor’s instructions, and the Veteran was repeatedly warned of this by his VA doctors. Further, aside from the Veteran’s own unsupported contentions, there is no competent evidence showing 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 or resulted in the Veteran’s loss of vision in the left eye. In this regard, there is no evidence in the medical records to support a finding that the Veteran’s VA physicians failed to exercise the degree of care that would be expected of a reasonable health care provider or furnished medical care without the Veteran’s informed consent. The Board finds it significant that the Veteran has not presented or identified any medical opinion or other competent or credible evidence to support his claim. The Board has considered the Veteran’s lay contentions and finds them not probative. To the extent that the Veteran argues that the loss of vision in his left eye was caused by VA’s improper or negligent treatment, he is not competent to render an opinion on causation or the proper standard of care, as he has not been shown to possess the requisite training or credentials needed to render an expert medical opinion. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions do not constitute competent medical evidence and lack probative value. The Veteran’s lay statements to such a complex medical question, in regard to the etiology of his loss of vision, are not the type of statements for which a lay witness without medical expertise can provide competent evidence. Consequently, the Board gives more probative weight to the objective medical evidence of record, including the opinions of his treating clinicians contained in their medical treatment notes, and the February 2018 opinion provided by the VA optometrist. In summary, the Board finds that the most probative evidence establishes that the Veteran’s loss of vision in the left eye was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. The benefit of the doubt doctrine is therefore not for application, and the Veteran’s claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for loss of vision in the left eye is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.