Citation Nr: 20005541 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 11-18 102 DATE: January 24, 2020 ORDER Entitlement to compensation under U.S.C. § 1151 for an eye disorder other than horizontal diplopia is denied. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran did not develop an eye disorder other than horizontal diplopia due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA; or due to an unforeseen circumstance. CONCLUSION OF LAW The criteria for entitlement to compensation under U.S.C. 1151 for an eye disorder other than horizontal diplopia have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1973 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in March 2013. The Board remanded this matter in September 2013, February 2016, and December 2017 for additional development. The September 2013 Board decision granted service connection for schizophrenia, leading the RO to adjudicate and deny the Veteran’s eye disorder claim on the basis of direct and secondary service connection. See Supplemental Statement of the Case, October 2017. In December 2017, the Board recharacterized the issue as it appears above after granting service connection for an eye disorder diagnosed as horizontal diplopia. In that same decision, the Board found that the VA examinations of record were not adequate to address the 1151 claim and remanded the issue for a new opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board will solely address the findings of the September 2019 VA examination. 1. Entitlement to compensation under U.S.C. § 1151 for an eye disorder other than horizontal diplopia. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran’s condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death, and that (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, medical or surgical treatment, or examination without the veteran’s, or in appropriate cases, his representative’s, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death 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. 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications, or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). To determine whether there was informed consent, VA will consider 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. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. In addition, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2010). In this case, the Veteran seeks compensation under 38 U.S.C. § 1151 for an eye disorder other than horizontal diplopia. Specifically, the Veteran testified that medications improperly prescribed to him by VA for his service-connected psychological disorders have caused damage to his eyes. See Hearing Transcript, March 2013. Initially, the Board notes that the effect medications and other treatment have upon parts of the body such as the eyes involves complex medical issues, and generally requires competent medical evidence to resolve. Here, nothing in the record shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). In September 2019, a VA examiner reviewed the Veteran’s record and noted that that the Veteran’s military separation examination showed 20/20 vision in both eyes and was silent for any other eye disorder. The examiner then identified the Veteran’s current eye diagnoses as dry eye syndrome, cataracts, exophoria/intermittent exotropia, and refractive error: myopia/astigmatism. The Veteran’s visual acuity was 20/50 uncorrected in both eyes and 20/40 corrected in both eyes. The examiner concluded that for each diagnosis it is less likely than not that the Veteran’s additional disabilities were caused by treatment provided by VA, including medication he received. Instead, his refractive error disability is an age-related condition; medical literature supports an association between dry eye syndrome and a history of HIV; risk factors for cataracts are age, smoking, diabetes, and HIV; and intermittent exotropia is a symptom of his decompensated exophoria. See VA Examination, September 2019. The examiner further concluded that the additional disabilities the Veteran experiences were not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing treatment or caused by an unforeseen event. Finally, the examiner stated that since the Veteran’s separation examination noted 20/20 uncorrected vision, it is not at least as likely as not that the Veteran’s diagnosed eye conditions were incurred in or caused by an eye condition during service. See VA Examination, September 2019. The Board finds that the foregoing medical opinion is adequate because the examiner reviewed the Veteran’s relevant medical history and offered clear opinions regarding the relationship between the Veteran’s condition and his VA treatment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, no other medical evidence of record indicated that VA was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. Thus, based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran did not sustain additional disability as a result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or as a result of an unforeseen event. In reaching this determination, the Board finds that the Veteran is not competent to provide evidence regarding matters as complex as determining what degree of care is expected of a reasonable healthcare provider. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). Accordingly, the appeal is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.