Citation Nr: 20007903 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-35 769 DATE: January 30, 2020 REMANDED Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for complications due to left eye cataract surgery is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1951 to March 1953. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the November 2015 and July 2018 rating decisions issued by a Department of Veterans Affairs (VA). In a February 2019 Board decision, the issue of entitlement to VA compensation benefits under 38 U.S.C. § 1151 for complications due to left eye cataract surgery was reopened and then remanded for further development. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for complications due to left eye cataract surgery To establish entitlement to benefits under 38 U.S.C. § 1151, the Veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable. The Veteran 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 not reasonably foreseeable. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. A Veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability... were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the Veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the Veteran’s willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA. 38 C.F.R. § 3.361 (c). Merely showing that a 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). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of “hospital care, medical or surgical treatment, or examination” furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1). The Board notes that a February 2012 VA informed consent form was signed by the Veteran but does not discuss or address possible complications of the surgery. See Capri, June 2013 at p.16 of 117. Additionally, the Board notes that on February 24, 2012, the Veteran’s scheduled left eye cataract surgery. See Medical Treatment Record-Government Facility, April 2012. The Veteran was brought to the operating room and IV sedation was started, a perpendicular block was placed on the left orbital, the surgeon stuck himself in the left middle finger with a peribulbar needle, and the surgery was cancelled. Id. The evidence of record reflects that on February 24, 2012 that the Veteran underwent VA left eye cataract surgery in February 2012 and suffered a posterior capsular rupture during surgery. See Medical Treatment Record-Government Facility, April 2012. The left eye cataract surgery was conducted on February 28, 2012. Id. The February 2012 VA surgical notes reflect that when a nucleus rotator was used to rotate the nucleus of the eye, it was noted that the cataract was tilting and eventually dropped into the vitreus. Id. Healon was injected into the anterior chamber of the eye, a Weck cell sponge was used to test the wound, the anterior chamber filled, and the wound was sutured. Id. In the February 2012 VA post-operative notes, the examiner indicated an unusual event or postoperative complication and noted the complication as “posterior capsule rupture dropped nucleus.” See Capri, June 2013 at p.66 of 117. The examiner noted that the Veteran would need retinal evaluation and surgery to managed the complication. Id. An August 2012 VA geriatric medicine note, the examiner noted that the Veteran recently had cataract surgery on the left eye and tolerated the procedure well. Id. at p.89 of 117. In A February 2013 VA social work assessment note, the Veteran reported having visual disturbances left eye post cataract surgery. Id. at p.99 of 117. In a March 2013 correspondence from private provider, Dr. S.S., Dr. S.S. notes that the Veteran presented to her office in March 2012 days after undergoing left eye cataract surgery at the VA. See Medical Treatment Record-Non-Government Facility, June 2014 at p.1 of 36. Dr. S.S. noted that it was noted that the Veteran suffered a posterior capsular rupture with retained lens fragments. Id. Dr. S.S. noted that the Veteran was taken to the operating room on March 2, 2012 for a pars plana vitrectomy, pars plana lensectomy, removal of lens fragments, and placement of sulcus placed implant lens model MA50BM17.5 diopters. Id. It was also noted that, postoperatively, the Veteran developed scleritis requiring oral steroids, relapsed six months later (October 2012) requiring another round of oral steroids, and after the postoperative scleritis resolved he developed significant cystoid macular edema with 20/150 vision in the left eye which was completely resolved with two intravitreal injections in January and February 2013. Id. Dr. S.S. noted that on the date of the examination, the Veteran’s left eye appeared stable with a completely dry fovea and complete resolution of (cystoid macular edema) CME. Id. Additionally, it was noted that due to the Veteran’s multiple issues he has not received his postoperative refraction from cataract surgery and will need that by one of the general doctors in the VA clinic. Id. Moreover, Dr. S.S. noted that due to the Veteran’s multiple bouts of postoperative scleritis, and his plan to relocate from Alabama to Ohio, establishment of a home-base for care is necessary in case he has more exacerbations. Id. An April 2013 VA optometry note reflects mild chalasis of the left eye, possible peripheral laser scar on the left eye, and one cyst temporal to fovea. See Capri, June 2013 at p.22, 23 of 29. Left eye pseudophakia with mild cystoid macular edema and mac OT shows 1 moderate sized cyst. Id. at p.25 of 29. A May 2013 VA ophthalmology consultation note reflects that the Veteran’s ocular history as “pseudophakis OS, CE 2012, complicated by posterior capsule tear and CME-s/p.” Id. at p.26 of 29. The Veteran was diagnosed with pseudophakic, CME OS. Id. at p.28 of 29. In a January 2014 VA Compensation and Pension Opinion, VA staff ophthalmologist opined, Dr. W.B., “[A]fter review of this patient’s chart I see no evidence of negligence in his care on the part of the VA. Everything was handled in a completely appropriate fashion. Though he did have a complication in the original surgery, this was not the result of negligence.” See VA Examination, November 2013. However, the opinion does not address whether the Veteran’s left eye pseudophakis was a result of the posterior capsule rupture, dropped nucleus which occurred during the left eye cataract surgery. Additionally, the examiner did not address whether the occurrence of the posterior capsule rupture, dropped nucleus was a result of (1) 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 (2) an event that was not reasonably foreseeable. In the January 2014 rating decision, the RO denied entitlement to compensation under 38 U.S.C. § 1151 for complications due to left eye cataract surgery based on the January 2014 VA examiners opinion that there was no evidence of negligence in the Veteran’s care on the part of the VA. See Rating Decision Narrative, January 2014. In June 2014, the Veteran submitted a timely notice of disagreement and additional evidence. See VA Form 21-4138, June 2014. In the July 2014 rating decision, the RO confirmed and continued the previous denial of compensation for complications due to cataract surgery, left eye (ACE) under 38 U.S.C. § 1151 because RO determined that the evidence continued to show that his complications of cataract surgery were not the result of negligence on the part of VA. See Rating Decision-Narrative, July 2014. In July 2014, the Veteran submitted a request for reconsideration of the claim. See VA Form 21-4138, July 2014. In September 2015, the Veteran submitted an application for disability compensation for residuals of cataract surgery under 38 U.S.C. § 1151. See VA Form 21-526EZ, September 2015. In November 2015, the RO denied reopening of the Veteran’s claim for service connection for complications due to cataract surgery, left eye (ACE) because the RO determined that the evidence submitted was not new and material. See Rating Decision-Narrative, November 2015. In October 2016 the Veteran submitted a timely notice of disagreement notice of disagreement (NOD) and requested a de novo review by a Decision Review Officer (DRO). See NOD, October 2016. In the May 2018, the RO denied the Veteran’s claim for service connection for complications due to cataract surgery, left eye (ACE) remains because the evidence submitted is not new and material. See SOC, May 2018. Additionally, the RO noted that merely showing that a Veteran has additional disability is not sufficient to establish causation. Id. In a February 2019 Board decision, the matter was reopened, as the Board determined that the evidence associated with the claims file subsequent to the November 2015 rating decision denying compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA left eye cataract surgery, was new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim, and remanded in order to obtain outstanding VA medical treatment records and further development. In February 2019, the Veteran underwent medial spindle procedure for recurrent ectropion in the left eye (lower lid margin nasal nevus/ectropion nasally with engorged capsule. See Medical Treatment Record-Government Facility, October 2019 at p.3 of 447. In April 2019, the Veteran reported that his vision did not seem quite as good in the left eye and he was experiencing eye pain/discomfort; flashes; floaters; diplopia; vision loss/dimming. See Medical Treatment Record-Government Facility, October 2019 at p.40 of 447. In July 2019, a letter dated June 21, 2019 from private nurse practitioner, Mr. C.H., was added to the Veteran’s claims file. See Medical Treatment Record-Non-Government Facility, July 2019. Mr. C.H. noted review of “enlistment H&P 4/23/91, DD214, STRs, private medical records, and VA decision denying vertigo claim from 9/14/13.” Id. Mr. C.H. opined, “Veteran’s chronic left eye pain and vision changes are a result of negligence on the surgeon’s part. The procedure was abruptly ended after sticking himself with the needed used to perform the peribulbar block on 2/28/12. This resulted in a post capsule rupture; dropped nucleus of his left eye and retained lens fragments. This required an urgent evaluation with retinal specialist on March 1st with surgery March 2nd to far a pars plana vitrectomy, pars plana tensectomy, removal of retained lens fragments and placement of lens implant.” Id. Mr. C.H. also noted, “Veteran’s operative report clearly stated the surgery was immediately cancelled ‘because surgeon (Dr. Y.M.) stuck himself with a surgical needle.’ The complications are all documented complications after phacoemulsification cataract surgery but there is no documentation the procedure was done. The only procedure documented is the peribulbar block, a regional anesthetic nerve block in the area surrounding the eye, therefore, the only documented cause of these complications must be the block itself complicated by the surgeon sticking himself with the needle resulting in abrupt cancellation of the procedure delay[ing] corrective action.” Id. Mr. C.H. further notes, “thorough review of the Veteran’s medical records pre- and post-operatively should have alerted the surgeon that more urgent evaluation should have been arranged. Id. However, the opinion does not address whether the Veteran’s left eye pseudophakis was a result of the posterior capsule rupture, dropped nucleus which occurred during the left eye cataract surgery. Further, the opinion did not address the actual left eye cataract procedure and whether the occurrence of the posterior capsule rupture, dropped nucleus was a result of (1) 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 (2) an event that was not reasonably foreseeable. August 2019, the Veteran was seen for eye pain/discomfort; flashes; floaters; diplopia; vision loss/dimming. See Medical Treatment Record-Government Facility, October 2019 at p.28 of 447. In the October 2019 VA ophthalmology note, the examiner noted that the Veteran had cataract extraction OS (2012, Alabama)-c/b posterior capsule tear; post-surgical scleritis OS; primary open angle glaucoma OU; pseudophakic cystoid macular edema OS; cyst just temporal to fovea -improved from 2015; blepharitis OS; poor reliability (13/16 fixation losses) scattered defects, enlargement of the blind spot; and lower lid margin nasal nevus/ectropion nasally with engorged caruncle. See Medical Treatment Record-Government Facility, October 2019 at p.1-3 of 447. In the November 2019 SOC, the RO noted that in an October 2019 VA addendum medical opinion, the examiner opined, “[T]he Veterans post-operative course was also complicated by some retinal edema and mild scleritis that was treated by the retinal specialist. The Veteran did experience some discomfort and inconvenience. A ruptured capsule during cataract surgery is not a rare complication of cataract surgery. Aa rate of 1%-2% would be expected. The Veteran was referred to the appropriate sub-specialist in a timely manner. The Veteran did have a complication during his cataract surgery that delayed the recovery of his vision. In my opinion there was no breach of the standard of care, nor negligence on the part of the Montgomery VAMC, or the Retina Center of Alabama.” Id. The Board notes that this opinion has not been associated with the Veteran’s claims file. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. The Board finds that the AOJ did not substantially comply with the remand directives. As both the VA medical opinion and the private medical opinion do not adequately address the issues pertinent to an 1151 claim, the Board finds that a remand is necessary. See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 307. Additionally, as there currently is no copy of the October 2019 VA addendum in the record, the AOJ should locate the October 2019 VA addendum report and associate it with the claims file. Entitlement to a TDIU Regarding the Veteran’s claim for a TDIU, the Board notes that further development and adjudication of the Veteran’s claim for VA compensation benefits under 38 U.S.C. § 1151 for complications due to left eye cataract surgery may provide evidence in support of his claim for TDIU. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. The matters are REMANDED for the following action: 1. The AOJ is advised that this case has been remanded by the Board twice (including the remand herein), with this remand caused by Stegall violations. See Stegall, 11 Vet. App. at 271. Expeditious treatment and substantial compliance with remand directives are required. 2. Obtain any outstanding VA treatment records and associate them, if any, with the Veteran’s claims file. In particular, the October 2019 VA addendum report should be obtained and associated with the Veteran’s claims file. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s complications from left eye cataract surgery and whether: (a) Did the Veteran suffer from additional complications due to his left eye cataract surgery performed by VA on February 28, 2012? (b) Was the additional complication of posterior capsular rupture during surgery a foreseeable complication of the left eye cataract surgery? (c) Was this additional disability of the left eye proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination? (d) Was any additional disability proximately caused by an event not reasonably foreseeable? Further, was this risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures? (e) Additionally, attention is invited to the March 2012 procedures performed by the private practitioner after the February 2012 VA left eye cataract procedure and address the clinician is asked to address whether the performance of these procedures is standard practice within three days of the left eye cataract procedure. The entire claims file, and a copy of this REMAND, must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Private treatment records from the Retina Specialists of Alabama in Montgomery dated in March 2013 note an additional surgical procedure was performed on March 2, 2012 on the Veteran’s left eye due to a left eye posterior capsular rupture with retained lens fragments. In addition, attention is invited to the June 2014 Veteran’s and associated lay statements noting he had increased complications as a result of the February 2012 left eye cataract surgery including reduced vision, significant pain and a significant impact on independently completing activities of daily living and January 2014 VA ophthalmologist’s opinion noting that the Veteran ’s 2012 left eye cataract surgery was complicated by a dropped nucleus and that the Veteran had subsequent private vitrectomy with placement of a lens. “Visual acuity on the left in April 2013 was 20/40 with some residual CME” (cystoid macular edema). The ophthalmologist found no evidence of negligence in the Veteran’s care on the part of VA. The examiner noted the Veteran’s complications as a result of the original surgery, and found these were not a result of any negligence. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiners should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion, or other information needed to provide the requested opinion. 4. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefit sought remains denied, furnish to the appellant and his representative a Supplemental Statement of the Case. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.