Citation Nr: 20032964 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 17-29 341 DATE: May 12, 2020 ORDER Compensation under 38 U.S.C. § 1151 for bilateral vision loss is denied. Service connection for a right leg disability is denied. Service connection for a left knee/lower leg disability is denied. REMANDED The issue of service connection for a back disability is remanded. FINDINGS OF FACT 1. An additional disability of the eyes, to include blindness, did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. 2. The Veteran does not have a current right leg disability. 3. The Veteran does not have a current left knee/lower leg disability. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for bilateral vision loss have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for entitlement to service connection for a right leg disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for entitlement to service connection for a left knee/lower leg disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to May 1977. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing. Right Leg and Left Knee/Lower Leg Disabilities Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran asserts that he has right leg and left knee/lower leg disabilities related to service. The Board has thoroughly reviewed the Veteran’s claims file and finds that, although the Veteran reported right leg and left knee/lower leg pain during VA examination in July 2013, there is no competent diagnosis of a right leg or left knee/lower leg disability. More specifically, the July 2013 VA examiner found “no objective evidence of chronic (radiographic) disability” of the claimed right leg and left knee/lower leg and the Veteran reported right leg and left knee/lower leg pain. See July 2013 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). Further review of the medical evidence of record fails to establish any diagnosed right leg or left knee/lower leg disability at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although the Veteran was seen for posttraumatic myositis of both legs while in service, there is no indication that he had a chronic right leg or left knee/lower leg disability or that he has experienced any right leg or left knee/lower leg disability since discharge from service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine in the context of a negative physical examination. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Although the Veteran is competent to report his symptoms, he is not competent to attribute his symptoms to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007 (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). His assertions are therefore not competent evidence of a diagnosis of a right leg or left knee/lower leg disability. Further, his opinion would also be significantly outweighed by the lack of diagnoses from the July 2013 VA physician, who clearly holds the level of medical expertise to address the nature and etiology of his complaints. The Board is cognizant of the ruling in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In that case, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Id., at 1368. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit limited its holding, stating, “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that his pain reaches the level of functional impairment of earning capacity.” Id. In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Here, there is no indication that the Veteran experiences functional impairment as a result of his right leg or left knee/lower leg complaints. Significantly, in July 2013 the Veteran reported right leg and left knee/lower leg pain and no objective evidence of a right leg or left knee/lower leg disability was found. In light of the lack of functional impairment or clinical diagnoses, the evidence does not support a finding of any current right leg or left knee/lower leg disabilities. At the Veteran’s hearing, the record was left open because the Veteran was going to submit additional evidence; however, no additional evidence was received. Accordingly, the first element of service connection is not met for the right leg and left knee/lower leg claims. Service connection cannot be granted for right leg or left knee/lower leg disabilities. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Thus, the Veteran’s claims for entitlement to service connection for right leg and left knee/lower leg disabilities are denied. Bilateral Vision Loss The Veteran believes that he is entitled to compensation under the provisions of 38 U.S.C. § 1151 for bilateral vision loss. In this regard, he asserts that following cataract phacoemulsification on his left eye in November 2012, he had decreased visual acuity after the procedure which led to blindness in both eyes. Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In Viegas v. Shinseki, the United States Court of Appeals for the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a “qualifying additional disability” that was not the result of his own “willful misconduct.” 38 U.S.C. § 1151 (a). Second, that disability must have been “caused by hospital care, medical or surgical treatment, or examination furnished the Veteran” by VA or in a VA facility. Finally, the “proximate cause” of the Veteran’s disability must be “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part” of VA, or “an event not reasonably foreseeable.” See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); § 1151(a)(1)(A), (a)(1)(B). Thus, section 1151 contains two causation elements—a Veteran’s disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. In determining whether a veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after care or treatment is rendered. 38 C.F.R. § 3.361(b). 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 causation. 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 of 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 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 the Veteran’s additional disability; and (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 or medical or surgical treatment without the Veteran’s informed consent. Determinations of whether there was informed consent involve consideration of 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. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Available treatment records show that the Veteran underwent cataract phacoemulsification on his left eye on November 7, 2012. The Veteran complained of decreased visual acuity after the procedure. In August 2015, the RO obtained a VA medical opinion. Following review of the Veteran’s claims file, the examiner opined it was not at least as likely as not that the claimed disability of blindness was caused by or became worse as a result of the VA treatment at issue; the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner provided the following rationale: “(1) The surgical procedure was done for a proper indication after complete consultations; (2) informed consent was obtained, explaining all possible complications; (3) the Veteran has severe diabetes, which increases the chance of complications; and (4) the Veteran was given excellent care without delay.” Given the foregoing, the Board finds that compensation under 38 U.S.C. § 1151 is not warranted because an additional disability of the eyes, to include loss of vision, did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. In this regard, the Board accords great probative weight to the August 2015 opinion as it is predicated on a thorough review of the record, which includes medical records concerning the surgery in question. Although the August 2015 examiner did not have the benefit of interviewing the Veteran, the examiner did comprehensively review the associated medical records that documented the Veteran’s post-surgical report of symptoms. Moreover, the opinion considered all the pertinent evidence of record and provided a complete rationale, relying on and citing to the records received. The clinician offered a clear conclusion with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion. . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion of record to the contrary. The Board understands the Veteran’s sincerely held belief that his cataract surgery caused his loss of sight. Although the Veteran, as a lay person, may report on observable symptoms and discomfort and the nature of the treatment he received, an assessment of the severity and proper treatment for his symptoms is a complex, medical matter requiring training and clinical experience that lay persons do not possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Ultimately, the Board places greatest probative weight on the thorough analysis by the August 2015 VA examiner. The examiner considered the Veteran’s contentions and accurately summarized the medical history. The assessment of the symptoms and their severity is consistent with the available medical records. The examiner explained that the standard of care was appropriate, informed consent was obtained, that the Veteran has severe diabetes increasing the chance of complications, and that he was given excellent care without delay. The record does not contain any opinion from a medical professional indicating that VA care caused the Veteran to incur an additional disability or increased an existing disability as a result of improper care or an event not reasonably foreseeable. As the most probative evidence of record shows that the Veteran’s loss of sight did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Back Disability The Veteran asserts that he has a back disability related to service. Specifically, he has testified to being thrown down a flight of stairs in service. See January 2020 Board Hearing Transcript, p. 3. He further stated that he had a low back fusion in 1990. Id. at p. 6. Following service, VA treatment records reflect an active problem of chronic low back pain as recently as May 2015. The Veteran also provided a history of having a back fusion during April 2014 private medical treatment. To date, the Veteran has not been afforded a VA examination in conjunction with his claim for a back disability. A VA examination is warranted to determine whether there is current disability and to obtain a medical nexus opinion as to whether any current disability is related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Even without a current diagnosis, the reports of back pain may constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Accordingly, a remand for a VA examination is warranted even if there is no current back diagnosis in order to determine whether the Veteran’s pain rises to the level of functional impairment in line with Saunders, along with a medical opinion requested. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any back disability. The claims file must be made available to and reviewed by the examiner in conjunction with the opinion. First, the examiner should determine whether the Veteran has any current back disability, which may include pain alone that rises to the level of functional impairment. Then, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any back disability had its onset during active service or is related to any in-service disease or injury. In providing the requested opinion, the examiner should specifically consider and discuss all pertinent medical evidence and lay assertions and the service treatment records, to include the Veteran’s report of being thrown down a flight of stairs in service and post-service VA treatment records noting an active problem of chronic low back pain. All finding results, along with a medical rationale for the conclusions reached, must be provided. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.