Citation Nr: 20059934 Decision Date: 09/11/20 Archive Date: 09/11/20 DOCKET NO. 15-31 198 DATE: September 11, 2020 ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to March 1971. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2017. A copy of the hearing transcript has been associated with the claims file. The issues were previously remanded in October 2018 for additional development. VA medical opinions were obtained. However, a remand is necessary for additional development in compliance with the Board’s October 2018 Remand directives. These directives included the Veteran through his attorney comply with fully developing his claim, and then obtaining a VA medical opinion that included a specific consideration of the administration of and risks associated with anesthesia. This is important inasmuch as this is central to the issue in controversy. The Board observes that compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is necessary to obtain a VA medical opinion that complies with the October 2018 Remand directives. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. The Board incorporates its discussion from the sections above by reference in addition to the lengthy evidentiary history detailed in the October 2018 Remand. First, a brief review of the governing law and precipitating medical event in controversy is instructive. The Veteran was afforded proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) per an August 16, 2013 letter. The notice provided discussed how to substantiate a claim for compensation under 38 U.S.C. § 1151. In pertinent part, 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361 (b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died 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 or death 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 or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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 (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter 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 § 17.32(b) of this chapter, as in emergency situations. 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 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. 38 C.F.R. § 3.361 (d). 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 § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). By way of background, a March 6, 2013 letter shows that VA concedes that the Veteran meets the criteria for catastrophic disability. Next, VA treatment records show surgery related to the left eye in May 2012. A May 17, 2012 Surgical Ophthalmology Note shows, “ANESTHESIA: Intracameral, non-preserved Lidocaine.” A May 18, 2012 note shows that the Veteran’s eye was “very hazy, scratchy, just can’t see well.” A May 18, 2012 Surgical Ophthalmology Note shows, “Required general anesthesia due to history of prior surgery becoming combative. He woke up during surgery and bucked on tube causing capsule tear and displacement of IOL onto endothelium.” A May 21, 2012 VA treatment record shows that the Veteran was administered general anesthesia. A May 31, 2012 Surgical Ophthalmology Post-Op Note shows that the Veteran was administered general anesthesia. It shows, “He expressed concern regarding his recent episode of ‘bucking’ during his recent surgery, and we strategized about ways we could hopefully prevent or minimize the risks of similar episodes of movement and variable depth of anesthesia.” Additional VA and private treatment records are substantially the same. One year later, in May 2013, the Veteran filed an informal claim under the provisions of 38 U.S.C. § 1151 alleging that he suffered permanent and chronic disabilities as a result of left eye surgery at the Asheville VA Medical Center (VAMC). Specifically, the Veteran alleges a pattern of negligence and fault on behalf of the Asheville VAMC for his cornea being scratched, swollen, and filled with fluid, as well as vision loss due to the surgery. Critically, the Board’s 2018 Remand in part instructed: Here, the September 2013 VA examiner has not fully addressed all of the Veteran’s contentions. For example, the VA examiner does not specifically address assigning fault for the Veteran having buked on the tube causing additional damage, while under anesthesia. This theory of entitlement should be fully explored. In addition, the VA examiner should opine whether VA breached the standard of care under 38 U.S.C. § 1151, and all of the related criteria. As outlined at the hearing, the examiner did not address the foreseeability of the event of the tube shunt causing excess fluid to drain at the esophagus could have led to the coughing that caused the Veteran to wake up. An opinion is also necessary with respect to administering proper anesthesia for the procedure. Since then, in partial compliance with the Remand directives, a set of medical opinions were obtained. Next, although received on March 3, 2020, is a VA medical opinion signed and dated on October 3, 2019. It is performed by D. D. V. H., D.O. in Family Practice medicine. It shows that the entire claims file was reviewed, though an in-person examination was not indicated. The related medical opinion shows in full: Opinion regarding appropriate care in consideration of surgical complication is acknowledged. Reference: A September 2013 VA medical opinion was obtained from [E.] C. [S.], MD ophthalmologist that includes, “The patient had ... surgery on 5/17/2012. The surgery was complicated due to the patient partially awakening during the procedure from general anesthesia to cause “bucking” ... . Due to the bucking there was an anterior capsular rent ... Because of this, Dr. [C.] did not feel the capsule was stable to hold he type of implant lens he had just placed in the eye. He enlarged the incision and removed the lens and placed a different style of lens into a position (the sulcus) where the capsular rent would not become an issue for future problems ....I feel this was completely appropriate and prudent and met or exceeded he standard of care.” Statements in support of claim are acknowledged. Reference: A May 28, 2013 Statement in Support of Claim shows in part, “My eyes did not get this way due to illness. The condition that I suffer with today is a scarred cornea, which occurred at Asheville VA on May 17, 18, 2012, which is a year ago. I ask you, who was monitoring my care while I was under general anesthesia during the surgery?” 08-07-14 Statement in support of claim by Veteran includes, “I never had these problems until after the surgery May, 17, 2012 ... .” DISCUSSION: Veteran had an eye condition that was non-life threatening and non-emergent, which in my opinion, makes the surgery for his eye condition an elective procedure. Veteran had significant concerns about the type of anesthesia for the surgery, which he reiterated on more than one occasion, specifically he wanted a general anesthesia because he did not want to know what was going on, and he had difficulty lying on his back. Veteran has comorbidities that complicate general anesthesia, specifically, morbid obesity. Anesthesiology stated, “THE RISKS FOR GENERAL ANESTHESIA FOR CATARACT SURGERY DUE TO ANESTHESIA FAR OUTWEIGH THE RISKS FOR HIS SURGERY,” which in my opinion, should be a cautious consideration of whether surgery should be performed or not. Nonetheless, surgery was performed with Veteran’s consent. During surgery, Veteran bucked and moved, which caused a surgical complication that in my opinion, was appropriately addressed. CONCLUSION: In my opinion, the significant issues are: whether surgery should have been performed or not, specifically, in consideration of Veteran’s comorbidities; initially performing surgery under non-general anesthesia; bucking during surgery, which in my opinion indicates anesthesia was not deep enough to maintain an appropriate surgical atmosphere for the operating surgeon, who in my opinion, appropriately attended to the complications. My opinion is based on aforementioned narrative and rationale. (emphasis added.) Second is a VA eye conditions Disability Benefits Questionnaire (DBQ) conducted as part of an in-person examination dated February 17, 2020. It is conducted by T. H., O.D., Optometry. The VA examiner reviewed the entire claims file, elicited a lay history from the Veteran. The VA examiner identified POAG with a date of onset of 2009, pseudophakia with a date of onset of 2013, and a cataract with a date of onset of 2009. Additional diagnoses show corneal transplant and filtering shunt in 2012 and again in 2013. The VA examiner remarked, “The given diagnosis POAG affects the both eyes. The given diagnosis PSEUDOPHAKIA affects the left eye. The given diagnosis CATARACT affects the right eye.” It does not contain a medical opinion addressing the issue on appeal. Third is a February 21, 2020 VA contract medical opinion Disability Benefits Questionnaire (DBQ) from Dr. A. K., an ophthalmologist. She indicated that she performed an in-person examination and reviewed the entire claims file. Dr. A. K. remarked, “Review of records reveals that the Veteran received proper informed consent before the left right eye procedures in May 2012 advising him of the risks, including that he could lose eye sight in that eye.” Another copy of the VA medical opinion form contains the remaining medical opinion. In the second form, she then provided the following medical opinion: The veteran had advanced glaucoma that required surgical intervention in the left eye. He had consistent follow up and informed consent documenting risks prior to the procedures. Thus, it is less likely than not that any disability in the Veteran’s left eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable by the VA in treating the Veteran’s left eye before, during and after the surgical procedures The 2/12/20 exam states the claimants vision loss was due to his severe glaucoma. Here, as a threshold issue, the Board observes that the VA examinations do not fully comply with the Board Remand directives, including answering all questions with complete rationales. For example, the most recent February 21, 2020 VA examiner did not comment on the proper administration of anesthesia, as specifically required by the Board’s October 2018 Remand directives. The Board observes, “A medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board is also mindful that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Turning to the second new October 3, 2019 medical opinion from D. D. V. H., specializing in Family Practice medicine, this opinion contains narrative discussion of the medical history. Although the medical opinion references anesthesia, it still does not fully answer the question in the Remand directive. The directive asked: Administration of Anesthesia (c) Is it at least as likely as not that any disability in the Veteran’s left eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA during and after the surgical procedures that is attributable to the administration of anesthesia for the left eye surgery that took place on or about May 17, 2012, or, an event not reasonably foreseeable by the VA in treating the Veteran’s left eye before, during, and after the surgical procedures? See Hearing Transcript, p. 4. The proper administration of anesthesia is critical to the issue at bar. The medical opinion references that any bucking was appropriately addressed, but does not include a comprehensive explanation of the initial administration grounded in medical principles. In summary, there are now multiple conflicting and incomplete medical opinions regarding disability resulting from left eye surgery, and the proper administration of anesthesia. Although we regret any possible delay, to resolve the inconsistent medical opinions, and to fully comply with the October 2018 Remand directives, a remand is necessary for additional development. See Stegall, supra. For efficiency, to fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim, a VA medical opinion from a separate medical facility familiar with the appropriate administration of anesthesia, though not necessarily an anesthesiologist, is necessary. See Directive 2 (c). This may be Dr. A. K. from February 21, 2020 if she is able to offer an addendum medical opinion, or a new VA examiner. The VA examiner should be familiar with the administration of anesthesia in an eye surgery setting, to the extent possible. On remand, the Veteran is invited to submit any private medical opinions addressing the critical evidentiary requirements outlined above. The VA examiner does not need to examine the Veteran in person unless found to be necessary following a review of the claims file. Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of any private treatment records, and associate them with the Veteran’s claims folder 2. Please obtain a VA medical opinion with a different VA examiner not at the Asheville VA Medical Center (VAMC) of appropriate expertise who will opine as to whether the Veteran’s left eye disability was caused or related to malpractice by VA. This should be an examiner who can comment on the proper administration of anesthesia, though not necessarily an anesthesiologist. This may be Dr. A. K. from February 21, 2020 if she is able to offer an addendum medical opinion, or a new VA examiner. The claims file must be made available to the examiner, and reviewed in conjunction with rendering the medical opinion. However, the VA examiner does not need to examine the Veteran in person unless found to be necessary following a review of the claims file. Then, after reviewing the claims file, the VA examiner should offer the following opinions with supporting rationale: Left Eye Surgery (a) Did the Veteran receive proper informed consent before the left right eye procedures in May 2012 advising him of the risks, including that he could lose eye sight in that eye? (b) Is it at least as likely as not that any disability in the Veteran’s left eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable by the VA in treating the Veteran’s left eye before, during and after the surgical procedures? The VA examiner should specifically comment on any corneal swelling that may impair vision. Administration of Anesthesia (c) Is it at least as likely as not that any disability in the Veteran’s left eye was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA during and after the surgical procedures that is attributable to the administration of anesthesia for the left eye surgery that took place on or about May 17, 2012, or, an event not reasonably foreseeable by the VA in treating the Veteran’s left eye before, during, and after the surgical procedures? See Hearing Transcript, p. 4. The examiner is advised that the Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. The complete rationale for all opinions should be set forth. The examiner should generally comment on and discuss the Veteran’s contentions as outlined in the January 2017 hearing transcript and referenced in the body of this remand regarding the type of anesthesia used during the initial May 2012 procedure. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 3. Review the claims file to ensure that the development addresses the issue on appeal. Any inadequacies should be addressed prior to recertification to the Board. 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.