Citation Nr: 21003074 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-58 729 DATE: January 19, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for any left eye disability is denied. Entitlement to compensation under 38 U.S.C. § 1151 for swallowing complications (dysphagia) is denied. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran did not incur any additional left eye disability as the result of 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, or as the result of an event not reasonably foreseeable. 2. The additional disability incurred as a result of the January 2011 cervical spine surgery was not the result of an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for the Veteran's left eye disability are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for the Veteran's dysphagia are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim for compensation under 38 U.S.C. § 1151 for left eye condition and swallowing complications. In August 2015 the Veteran filed a notice of disagreement (NOD) as to his left eye disability and dysphagia. In November 2016 the RO issued a statement of the case (SOC) and in February 2017 the Veteran timely filed a substantive appeal (via VA Form 9). In January 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In March 2018 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to schedule the Veteran for a VA examination and obtain a medical opinion to determine if his left eye disability and dysphagia are entitled to compensation pursuant to 38 U.S.C. § 1151. Additionally, the Board remanded the Veteran’s claim to obtain relevant medical records pertinent to the Veteran’s claim. As will be discussed below, the RO substantially complied with the March 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Left eye disability A Veteran who is disabled because of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA; and, (3) 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 VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). 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 the care or treatment is rendered. 38 C.F.R. § 3.361. The additional disability or death must not have been due to the Veteran's failure to follow medical instructions. 38 C.F.R. § 3.361(c)(3). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. 38 C.F.R. § 3.361(c)(1). Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Id. 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Proximate causation can be established when it is shown that VA 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 that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d). Proximate causation can also be established when it is shown that a Veteran's additional disability or death was an event that was not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2). This fact is to be determined based on what a reasonable health care provider would have foreseen. Id. 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. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 3.361(d)(1)(ii) and § 17.32. In March 2018 the Board remanded the Veteran’s claim for additional treatment records, specifically, to obtain a copy of the operative report for left eye cataracts surgery conducted at the Lebanon VA Medical Center (VAMC) in May 2003 and to obtain a copy of the Veteran’s informed consent form for the May 2003 surgery. These records were retrieved and the RO substantially complied with the Board’s remand instructions. See CAPRI, November 2018; see also Medical Treatment Record-Government Facility, June 2019. In the February 2017 VA Form 9 the Veteran stated that the doctor at the Lebanon VAMC tore the sack that holds the lens in front of his left eye which he believes was due to carelessness. At the January 2018 Board hearing the Veteran testified that as a result of his eye surgery he is developing glaucoma in his left eye which is noticeably worse than his right eye. The Veteran testified that two stitches remain in his left eye and that his eye is tender all the time. A May 2003 VA treatment note indicates that the Veteran underwent cataract surgery in his left eye and a September 2003 treatment note indicates that there were complications of the induced stigmatism vitreous loss during the surgery. Additionally, the July 2020 VA examiner opined it is at least as likely as not that the Veteran sustained an additional disability, to include chronic iritis, as a result of the May 2003 cataract surgery conducted at the Lebanon VAMC. The VA examiner explained that the surgery had complications and required the placement of an ACIOL (anterior chamber intraocular lens) in the left eye rather than a PCIOL (posterior chamber intraocular lens). The VA examiner concluded that such complicated cataract surgeries can trigger chronic recurrent iritis. Thus, the Veteran established the existence of an additional disability as a result of VA care or treatment as required under 38 U.S.C. § 1151. The remaining question is whether the proximate cause of the Veteran’s left eye disability was due to 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 the proximate cause of the disability was an event not reasonably foreseeable. The July 2020 VA examiner opined it is less likely than not that the additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA' s part. The VA examiner explained that the Veteran experienced a tear in the posterior capsule which required 8 stitches during the cataract surgery of his left eye. The VA examiner explained that this is a possible complication of cataract surgery which was addressed appropriately by the VA and without carelessness or negligence. The VA examiner also opined it less likely than not that any additional disability was due to an event not reasonably foreseeable. The VA examiner explained that the Veteran experienced a break in the capsular bag of his left eye during the cataract surgery which is a common risk complication of any cataract surgery and it was handled with the proper standard of care by the VA. The July 2020 VA examiner’s opinion is highly probative, as she reviewed the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented. As the VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the Board recognizes the sincerity of the Veteran's claim, the July 2020 VA examiner found that the proximate cause of the left eye disability was not due to 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 the proximate cause of the disability was an event not reasonably foreseeable. While laypersons are competent to provide opinions on some medical issues, the specific issue in this case falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide such an opinion. Thus, the Veteran is not competent to opine on the question of whether he has a current, qualifying, additional disability for purposes of compensation under 38 U.S.C. § 1151. Moreover, there is no other competent opinion on this question. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's left eye disability was not caused by VA medical care, or that the proximate cause of such death was either due to 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. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Dysphagia Regarding the Veteran’s claim for compensation pursuant to 38 U.S.C. § 1151 for dysphagia, the Board observes that a VA neurosurgeon at the Coatesville VA Medical Center referred the Veteran to Lancaster General Hospital for cervical surgery that was conducted in January 2011. A claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care “provided by VA,” which is further defined as services that were either provided by a VA employee or performed in a VA facility. 38 U.S.C. § 1151(a)(1). The implementing regulation, 38 C.F.R. § 3.361(f), further provides that treatment or care furnished either (a) under a contract made under 38 U.S.C. § 1703 (authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required) or (b) under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151(a)(1). Consequently, in this case, the surgery at issue was performed in a facility over which the Secretary does not have direct jurisdiction, and therefore, the surgery is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C. § 1151. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of section 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151(a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. In March 2018 the Board remanded the Veteran’s claim for additional treatment records, specifically, to obtain outstanding treatment records at Lancaster General Hospital to include a copy of the private operative report of the January 2011 cervical spine surgery and a copy of the Veteran’s informed consent form for the January 2011 surgery. Additionally, the Board remanded the Veteran’s claim to obtain treatment notes referenced as “Fee – inpatient scanned,” as identified in VA notes dated in May 2011 and June 2011 at the Coatesville VAMC. These records were obtained and the RO substantially complied with the Board’s remand instructions. See Medical Treatment Record-Government Facility, November 2018. In an August 2014 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that his spine surgery was done through the front of his throat and that this caused his dysphagia. The Veteran stated that he had an x-ray/fluoroscope performed which showed that the surgeon who installed the metal put the steel piece on top of a spur which reduced the space between the bone and the muscle which helps you swallow. A December 2015 private treatment record suggests that the Veteran’s dysphagia is caused by posterior pharyngeal prominence likely from hardware placed during the January 2011 cervical spine surgery. An October 2019 VA examiner opined it is at least as likely as not that the Veteran sustained an additional disability to include dysphagia as a result of the January 2011 cervical spine surgery conducted at Lancaster General Hospital. The VA examiner then noted that the underlying cause of the dysphagia is not entirely clear. The October 2019 VA examiner also opined it is less likely than not that the Veteran suffered an additional disability due to an event not reasonably foreseeable. The VA examiner explained that the January 2011 surgeon performed a preoperative visit along with a surgical consent that is included in the Veteran’s January 2011 operative report. It was described in this note that the Veteran had undergone physical therapy without improvement, and he was offered non-operative treatment which he declined. It was noted that the possible risks and complications of the procedure were also discussed along with the difficulty with swallowing. The RO requested some clarification on the October 2019 VA opinion which was received on November 3, 2020 by another VA examiner as the previous examiner was no longer available. The November 2020 VA examiner opined it is less likely than not that additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part or VA’s failure to exercise the degree of care that would be expected of a reasonable health care provider. The VA examiner reviewed the medical evidence, in particular the December 2015 ENT report that showed, "Posterior pharyngeal prominence on laryngoscopy likely from hardware." The examiner noted that the "likely from hardware" was speculative, as objective evidence from the 2014 radiologic studies were silent for evidence to support "prominence" likely from hardware. In this case, under the holding in Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran’s cervical spine surgery in January 2011 (i.e., that the VA practitioners recommended that the Veteran have the surgery performed), (2) an “unforeseeable event” occurred, and (3) the unforeseeable event proximately caused the Veteran’s additional disability of dysphagia. The Veteran asserts that a physician at the Coatesville VAMC recommended he have the cervical surgery and was referred to Lancaster General Hospital, where the cervical spine surgery was performed. A November 2010 VA treatment record shows that a VA neurosurgeon recommended the Veteran undergo C-4-5, 5-6 anterior cervical discectomy with fusion. A VA treatment record dated later in November 2010 revealed that the Veteran agreed to the surgery and there was a notation that the November 2011 VA neurosurgeon would be conducting the surgery at Lancaster General Hospital. While the Veteran's VA health care providers recommended that he have surgery and referred him to Lancaster General Hospital for such treatment, the additional disability incurred as a result of such treatment was not due to an event not reasonably foreseeable. In this regard, the October 2019 VA examiner specifically found that the complications that the Veteran sustained were a part of the foreseeable risk of such type of procedure. That finding is probative, because the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Based on the foregoing, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 for dysphagia is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.