Citation Nr: 20021379 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-56 064A DATE: March 25, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for loss of vision, right eye, is denied. FINDING OF FACT The evidence of record establishes that the Veteran’s loss of vision in his right eye was reasonably foreseeable and was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the Department of Veterans Affairs (VA) in furnishing treatment. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for loss of vision, right eye, are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to November 1966. This matter comes before the Board of Veterans’ Appeals on appeal from an October 2016 rating decision by the VA Regional Office (RO) in Winston-Salem, North Carolina. In May 2019, the Board requested an independent medical opinion, which was received in January 2020. The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. The Veteran has submitted additional evidence and the 60 days have elapsed. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). The Veteran’s Contentions The Veteran contends that the delay in diagnosing his detached retina and the delay between the diagnosis and surgery to repair it made the surgery more difficult and resulted in additional loss of vision. Entitlement to compensation under 38 U.S.C. § 1151 for loss of vision, right eye 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 claimant's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a VA employee or in a VA 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 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 claimant's additional 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, medical or surgical treatment, or examination without the claimant's or, in appropriate cases, the claimant's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a claimant'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. 38C.F.R. § 3.361(d)(2). Turning to the instant case, the record reflects that on August 25, 2015, the Veteran underwent right eye cataract surgery with lens implantation. The surgery was complicated by posterior capsule rupture and dropped nucleus in the vitreous cavity. The complication was addressed at the time of the surgery and during a follow-up vitrectomy and removal of lens fragment performed on August 28, 2015. The Veteran was seen in September, October and November 2015 with complaints of eye pain and blurred vision. On November 20, 2015, visual acuity without correction was noted as 20/40 in the right eye. On December 31, 2015, the Veteran complained about not being able to see since his surgery and was advised to follow up with his ophthalmologist. On January 14, 2016, during a primary care visit, the Veteran complained of worsening blurry vision since surgery and reported that he had been unable to get an appointment with anyone at the Fayetteville VA Medical Center (VAMC). During a January 19, 2016 eye risk assessment screening examination at the Wilmington VAMC, it was noted that the marked reduction in the acuity of the right eye suggested retinal detachment and the Veteran was approved for referral to a retinal specialist and performance of retinal surgery. On February 10, 2016, the Veteran was scheduled for a retina consultation on April 15, 2016. Upon examination on April 15, 2016, the Veteran was diagnosed with retinal detachment and was given a guarded prognosis given the lengthy status of his condition since the initial evaluation in January 2016. The Veteran was referred to a non-VA retinal specialist, who diagnosed the Veteran with total retinal detachment and performed retinal repair surgery on May 5, 2016 and again on January 26, 2017. As of November 2017, the Veteran has been determined to be legally blind in his right eye. A December 2018 private eye exam noted the “old” retinal detachment in the Veteran’s right eye as stable. As noted, the Veteran alleges that the delay in diagnosing his retinal detachment and the delay in treatment resulted in additional disability. The Board obtained an independent medical opinion from an ophthalmologist (IME examiner) addressing these allegations in January 2020. Based on his review of the record, the IME examiner explained that the Veteran most likely sustained the retinal detachment in mid-December 2015, based on his report on December 31, 2015 that he had lost vision in his right eye since his surgery. Based on the record evidence, the IME examiner explained that by the time the Veteran was diagnosed with retinal detachment in January 2016, he had likely experienced retinal detachment for at least 4 weeks. Thus, although the Veteran asserts that VA was negligent in failing to provide a follow up appointment for more than four months after he contacted VA on December 31, 2015, and the Board accepts that there was a VA-imposed delay in scheduling the appointment, and thereby the diagnosis of the retinal detachment, the Board concludes that there was no negligence in this delay, for reasons explained below. As noted above, the IME examiner determined that the Veteran most likely sustained the retinal detachment in mid-December 2015, based on his report on December 31, 2015 that he had lost vision in his right eye since his surgery. The Board finds persuasive the fact that the Veteran on December 31, 2015, did not make a more specific report that his vision had suddenly decreased more proximate to his walking in on December 31, 2015. That the Veteran did not describe the loss of vision as very recent in time supports the examiner’s conclusion that the retinal detachment occurred well prior to the Veteran walking in that day. The IME examiner explained that medical literature establishes that the best post-operative result is seen in patients with a detachment of less than one week in duration. As such, the retinal detachment diagnosis was made outside the window for an optimal prognosis as a result of the Veteran not seeking timely treatment for his vision loss. Thus, the Board finds that although VA delayed in providing the Veteran an ophthalmologic appointment, that delay was not negligent, as the Veteran’s delay in seeking treatment resulted in disability that could not be fully corrected by the time he sought VA treatment. In other words, the Veteran’s delay in seeking treatment for the loss of vision prohibited VA from providing timely care for his retinal detachment. For similar reasons, the Board finds that it was the Veteran’s delay in seeking timely treatment that caused the additional disability, rather than VA’s delay in providing him an appointment prior to April 2016. Based on the timeline and the relevant medical literature, the IME examiner opined that there was no additional disability caused or made worse by the delay in performing the retinal reattachment surgery. As explained by the examiner, by the time of the January 19, 2016 diagnosis, the detachment had likely occurred 4-6 weeks prior. Such a delay in diagnosis is consistent with the poorest post-surgical outcomes. Thus, VA’s delay in performing surgery to correct the retinal detachment did not result in additional disability, as peer-reviewed medical literature establishes that reattachment surgery must occur within a week of detachment to avoid permanent damage. Given these facts, the IME examiner concluded that there was “no carelessness, negligence, lack of skill or similar incidence of fault on the part of VA personnel.” The Board finds the opinion of the IME examiner probative and entitled to weight on the questions of whether the delays in diagnosis and treatment of the Veteran’s retinal detachment resulted in an additional disability entitled to compensation pursuant to 38 U.S.C. § 1151. The opinion is based on the examiner’s expertise and thorough review of the relevant records, is clearly explained and is supported by reference to relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no other competent evidence in the record addressing causation. An October 2017 Disability Benefits Questionnaire (DBQ) concluded that it was impossible to determine if the Veteran’s outcome would have been different absent a delay. Although the Veteran has claimed that the delay caused additional injury, there is no indication in the record that he is qualified to offer such a medical opinion. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Based on the foregoing, the Board finds that there is no basis for entitlement to compensation under 38 U.S.C. § 1151 for loss of vision of the right eye. As the preponderance of evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.