Citation Nr: 21003867 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-58 821 DATE: January 25, 2021 ORDER Compensation under 38 U.S.C. § 1151 for a right eye condition, to include branch retinal artery or vein occlusion, a visual field defect (quadrantanopia) resulting from a cholesterol plaque or emboli (Hollenhorst plaque), and glaucoma, is denied. FINDING OF FACT The Veteran’s right eye conditions, including branch retinal artery or vein occlusion, a visual field defect (quadranopsia) resulting from a cholesterol plaque or emboli (Hollenhorst plaque), and glaucoma were not proximately caused by the June 2005 carotid endarterectomy (CEA) surgery performed at a Department of Veterans Affairs (VA) medical facility; even if there were a causal relationship, however, it was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the performance of the CEA surgery, which did not fall below the standard of care, which was performed with the Veteran’s informed consent, and which a reasonable person faced with similar circumstances would have proceeded with in view of the consequences of foregoing that procedure. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a right eye condition, to include retinal artery or vein occlusion, a visual field defect (quadranopsia) resulting from a cholesterol plaque or emboli (Hollenhorst plaque), and glaucoma, are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1955 to March 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a VA Regional Office (RO). The Board remanded the matter for further development in August 2018 and May 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2018. A transcript of the hearing is of record. Compensation Under 38 U.S.C. § 1151 Compensation under section 1151 shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. 38 U.S.C. § 1151. A disability or death is a qualifying additional disability or death if the disability or death is not the result of the veteran’s own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) 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 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA 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. Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). 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. 38 C.F.R. § 3.361(d). 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 (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the veteran or, in appropriate cases, the informed consent of his or her representative. 38 C.F.R. § 3.361(d)(1); VAOPGCPREC 5-01. Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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 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. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Right Eye Condition The Veteran seeks compensation under 38 U.S.C. § 1151 for a right eye condition that he believes was proximately caused by carotid artery surgery performed at a VA medical facility in June 2005. Specifically, he states that a plaque in his artery was loosened from that surgery and traveled to his right eye, causing pressure that resulted in glaucoma. See April 2018 Hearing Transcript. For the following reasons, the Board finds that the criteria for compensation under § 1151 have not been met. A December 2004 VA optometry treatment record reflects examination findings of ocular hypertension with a thick cornea of the right eye. The VA treatment records show that in January 2005, the Veteran was found to have carotid artery stenosis, with total occlusion on the left, and 90 percent occlusion on the right based on the results of an ultrasound. He was advised to undergo surgery consisting of a carotid endarterectomy (CEA), as he was a “candidate for a stroke,” to quote the Veteran’s statement expressing his understanding of why the procedure was advised. See February 2005 VA Treatment Record. He was provided information about the proposed operation, including the risks of the procedure such as a cerebrovascular accident (“CVA”), myocardial infarction (“MI”), bleeding, and infection. A June 2005 form signed by the Veteran, the counseling physician, and a witness, titled “Request for Administration of Anesthesia and for Performance of Operations and other Procedures” states, in part, that the nature and purpose of the operation or procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications had been fully explained to the Veteran, and that he acknowledged that no guarantees had been made concerning the results of the operation or procedure. A separate June 2005 form signed by the physician states, in part, that the treatment or procedure had been discussed with the patient (i.e. the Veteran), the indications, risks, benefits, and alternative treatment options had been explained, and the patient was offered an opportunity to ask questions. It also states that the patient consented freely, without fraud, duress, or coercion. The VA treatment records reflect that the CEA procedure was performed in June 2005 without any complications. A December 2005 VA optometry treatment record reflects that the Veteran reported good vision, distant and near, with regard to his right eye (he is essentially blind in the left eye due to an unrelated condition). It was noted that he underwent carotid artery surgery in June 2005. He reported no vision loss. A history of ocular hypertension with a thick cornea in the right eye was noted based on the findings in the December 2004 optometry record. He was having mild symptoms of a visual aura with no associated migraine for the past few years. He was again assessed with ocular hypertension of the right eye with thick pachymetry. No other abnormalities with respect to the right eye were noted. A December 2006 VA optometry treatment record again reflects a diagnosis of ocular hypertension with a thicker than average cornea of the right eye. The Veteran’s history of carotid stenosis status post CEA on the right side was noted, with “no sign of emboli or retinal vascular disease.” A February 2007 VA optometry treatment record reflects that glaucoma was suspected due to the Veteran’s ocular hypertension. Based on examination, the Veteran was diagnosed with ocular hypertension with a thick patch. A visual field examination was normal. The plan was for the Veteran to return in a year for another optometry appointment. A February 2008 VA optometry treatment record reflects that the Veteran reported difficulty driving at night, stating that headlights are “shaky” and the signs a little blurry. He had no vision problems during the day. On examination, cholesterol emboli were found in the right eye. It was noted that the Veteran was asymptomatic with respect to this finding, which indicates that his reported visual problems when driving at night were not due to the emboli. A February 2008 VA treatment record confirms that this was a new finding, stating that optometry reported a “new cholesterol emboli” in the right eye. A September 2008 VA neurology treatment record reflects that the Veteran was seen for an evaluation of a “Hollenhorst plaque [that] was noted in one eye,” apparently in reference to the cholesterol emboli found in the February 2008 VA optometry examination. An October 2008 VA optometry treatment record reflects a diagnosis of a history of carotid stenosis with calcium embolus in the right eye which was “present today,” with branch retinal vein occlusion (“BRVO”), status post CEA surgery on the right side. He was also assessed with a cataract in the right eye, causing decreased best corrected visual acuity (“BCVA”). A June 2009 VA optometry treatment record reflects that the Veteran was seen for a repeat visual field examination. A finding of calcific emboli with old branch retinal artery occlusion (“BRAO”) was noted. In this regard, the optometrist noted that the Veteran had significant carotid disease, but that calcific emboli were more likely cardiac in origin. The optometrist also noted elevated intraocular pressure (“IOP”) and assessed ocular hypertension versus early glaucoma in the right eye. In addition, the optometrist found a superior temporal quadrantopsia in the right eye (i.e. a visual field defect), which was the result of a cerebral vascular accident (“CVA”). The Veteran was prescribed eye drops for the intraocular pressure. A July 2009 VA optometry treatment record reflects again reflects a finding of a small calcific emboli “consistent with previous note.” The record additionally states that there was an “extremely small” cholesterol/Hollenhorst plaque. An October 2010 VA optometry treatment record notes a history of calcific emboli in the right eye with a “previous [history] of cholesterol emboli.” There was also a small cholesterol plaque seen in July 2009. It further reflects a finding of an absolute temporal quadrantopsia secondary to a cerebral vascular accident (“CVA”) with no glaucoma defects. A February 2011 VA optometry treatment record reflects that the Veteran was seen for follow-up, and that he had glaucoma. Based on examination findings, the Veteran was diagnosed with chronic open angle glaucoma in the right eye. Glaucoma in the left eye was also found, but whether the angle was open or not was unknown (as noted above, the Veteran has essentially no vision in his left eye due to an unrelated condition). In addition, the Veteran was again found to have a calcified embolus along the inferior temporal arcade of the right eye which was stable and likely the cause of his quadrant visual field defect (i.e. the quadrantopsia noted in the June 2009 VA optometry record and subsequent records). In a May 2011 statement (VA form 21-4138), the Veteran wrote that as a result of the June 2005 CEA surgery, in which “plaque was removed from a vein,” a piece of plaque “found its way” to his right eye, and he now had vision loss in that eye. He stated that his VA doctor told him that the plaque was due to the surgery. In support of that statement, the Veteran referred to a doctor’s note that was attached to it. From review of the claims file, the Board infers that the attached note mentioned in the Veteran’s May 2011 statement is a March 2011 letter by his treating VA optometrist, which states that the Veteran had 20/25 vision in his right eye, but lost one quarter of his peripheral vision from a “stroke in the eye.” That vision loss was permanent. The optometrist did not mention the CEA surgery in this letter. The Board notes that in subsequent VA treatment records, the optometrist assessed a right eye cholesterol plaque “following endarterectomy surgery” with residual superior temporal quadranopsia. See March 2014 VA Optometry Treatment Record. The optometrist’s language does not suggest a finding that the right eye plaque was caused by that surgery; rather, it merely notes the chronological sequence with use of the word “following.” A March 2012 VA treatment record states that the Veteran had a right upper quadrant effect since the carotid endarterectomy surgery performed in June 2005. However, as shown above, the visual field defect was first found on examination in June 2009, four years after the June 2005 surgery was performed. A March 2014 VA optometry treatment record states that the Veteran had a cholesterol plaque in his right eye following endarterectomy surgery, with residual superior temporal quadranopsia. More recently, VA treatment records dated in February 2018 and September 2018 similarly reflect findings of quadranopsia in the right eye from calcified plaque. A May 2017 non-VA treatment record reflects that the Veteran was seen at an outside facility in the cardiovascular clinic for a cardiac evaluation, in part due to his history of a retinal emboli. The record states that the Veteran recalled undergoing a right carotid endarterectomy eight to nine years earlier (i.e. the June 2005 CEA surgery). “Shortly afterward, he noted a visual field defect in his right eye,” but reported it “was not fully evaluated by an eye doctor for approximately 4 years.” He stated that “[a]t that point, he was diagnosed with a retinal plaque involving his right high upper visual field.” In a December 2019 VA medical opinion, the examiner, an ophthalmologist, opined that the Veteran’s retinal artery occlusion and glaucoma are at least as likely as not caused by the June 2005 endarterectomy, “as per the records it is likely caused by a plaque that got dislodged after the endarterectomy procedure.” In this regard, the examiner stated that review of the records showed that the Veteran had carotid stenosis of the right eye with possible branch retinal artery occlusion (“BRAO”) versus branch retinal vein occlusion (“BRVO”) that may have resulted in the quadrantanopia. The examiner noted that a December 2005 VA treatment record states that the Veteran had recent surgery for right carotid stenosis, and that a January 2017 record reflects that the Veteran had two cholesterol plaques of the right eye, and that the original plaque occurred “just after” the endarterectomy surgery. In a separate December 2019 opinion addressing the issue of whether there was VA fault, the same ophthalmologist found that the Veteran’s right eye vision issues, including glaucoma, were less likely than not caused by carelessness, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, and that it was less likely than not that VA failed to exercise the degree of care that is expected of a reasonable health care provider. The examiner explained that BRAO and BRVO may suddenly happen in a patient with arterial disease, which itself is a significant risk factor and at least as likely as not the cause of the Veteran’s right eye condition. In a May 2020 supplemental opinion, the ophthalmologist who rendered the December 2019 VA medical opinions stated that it is “not at least as likely as not” that the Veteran’s right eye disability was reasonably foreseeable as an ordinary risk of the 2005 VA endarterectomy for carotid stenosis that would be disclosed “on the informed consent.” The examiner explained that patients who require carotid endarterectomies usually have a significant amount of plaque in their carotid arteries. These plaques can be dislodged with or without surgical endarterectomy. The examiner added that the Veteran would be at a higher risk of vision loss and strokes if he had not undergone that procedure. The examiner concluded that the Veteran’s underlying medical conditions placed him at risk for vision loss, rather than the surgical endarterectomy procedure itself. Based on the above evidence, the Board finds that the Veteran’s right eye conditions, including glaucoma, branch retinal artery or vein occlusion, cholesterol plaques and the resultant visual field defect (quadrantanopia) were not proximately caused by the June 2005 CEA surgery. As an initial matter, the Board finds the December 2019 VA medical opinion regarding the issue of proximate cause is not probative on the issue, as it is based on an inaccurate factual premise, namely that the Veteran’s “original plaque” in the right eye occurred “just after” the June 2005 surgery. As shown in the VA optometry records reviewed above, the Veteran did not develop a plaque in the right eye—which was then characterized as cholesterol emboli—until February 2008. If there were any doubt on the matter, a February 2008 VA treatment record states that the Veteran had a “new cholesterol emboli” in the right eye, while the December 2006 VA optometry treatment record notes the Veteran’s history of carotid stenosis status post CEA on the right side, with “no sign of emboli or retinal vascular disease.” Thus, the evidence shows that the Veteran’s right eye cholesterol emboli, or Hollenhorst plaque, did not manifest until roughly two years and eight months after the June 2005 surgery. For the same reasons, the May 2017 non-VA treatment record is not probative regarding the history of the Veteran’s right eye visual field defect. That record states that the Veteran “recalled” that shortly after the June 2005 CEA procedure, he noted a visual field defect in his right eye, but that it “was not fully evaluated by an eye doctor for approximately 4 years.” The VA treatment records clearly show that the visual field defect was first found on examination in June 2009, four years after the June 2005 surgery was performed, and that the plaque that caused that defect was first detected in February 2008. Prior to that time, examination findings were negative for a visual field defect. For example, the February 2007 VA optometry treatment record states that a visual field examination was normal. The December 2019 VA medical opinion also attributes the Veteran’s glaucoma to the surgery, but this appears to be a clear error, as this is a condition distinct from the right eye plaque with associated branch retinal artery or vein occlusion and visual field defect. The VA treatment records do not indicate that the glaucoma, which affects both the Veteran’s eyes, is related to these latter conditions. Moreover, the examiner’s explanation only concerns these latter conditions, which are not related to the glaucoma. Moreover, and significantly, early signs related to the development of the Veteran’s glaucoma were detected well before the June 2005 surgery. More specifically, the December 2004 VA optometry record reflects a diagnosis of ocular hypertension of the right eye, and the February 2007 VA optometry record states that glaucoma was suspected due to the Veteran’s ocular hypertension. The June 2009 optometry record notes ocular hypertension versus early glaucoma in the right eye. When these records are considered together, it becomes readily apparent that the Veteran’s glaucoma was beginning to develop prior to the June 2005 surgery, with the ocular hypertension being a precursor or early sign of his glaucoma. The findings in the VA optometry records do not suggest that the Veteran’s glaucoma may be related to the June 2005 CEA procedure, or to his other right eye conditions, including the plaque and branch retinal artery or vein occlusion, or the associated visual field defect. The Board finds that further medical opinion on the issue of proximate cause is not warranted, and that there is no prejudice to the claimant in basing this decision on the existing record. It is clear based on the VA ophthalmologist’s December 2019 opinion regarding the issue of VA fault, and the same examiner’s May 2020 supplemental opinion regarding the issue of foreseeability, as well as from review of the VA treatment records, that requesting a new opinion would not aid in substantiating the claim. In this regard, the December 2019 opinion addressing the issue of fault states that BRAO and BRVO may suddenly happen in a patient with arterial disease, which itself is a significant risk factor and at least as likely as not the cause of the Veteran’s right eye condition. In the May 2020 VA opinion, the examiner stated that it was the Veteran’s underlying carotid stenosis itself, rather than the June 2005 CEA procedure, that placed him at risk for developing his right eye conditions, including the plaque which resulted in a visual field defect. The June 2009 VA optometry note reflects a finding that the Veteran’s calcific emboli (i.e. the plaque) were “more likely cardiac in origin” than due to carotid disease. That statement further indicates that the June 2005 surgery was not a factor in the development of the right eye plaque and resultant visual field defect. Finally, as discussed above, the December 2019 opinion addressing causality had been based on the inaccurate premise that the right eye plaque developed “just after” that surgery. Moreover, the record is sufficient to render a fully informed decision at this time. As shown in the evidence discussed in the preceding paragraph, the Veteran’s underlying carotid stenosis or cardiac condition itself was found to be the likely cause of his right eye plaques and other conditions, rather than the June 2005 surgery. Thus, as the probative evidence, including other opinions by the same examiner, shows that the Veteran’s right eye plaque and other conditions did not develop as a result of the June 2005 procedure, but rather as a result of his underlying cardio-vascular conditions, another medical opinion is not warranted. The Board has considered the Veteran’s May 2011 statement asserting that a VA physician told him that his right eye plaque and resultant visual field defect was caused by the June 2005 surgery. The VA treatment records do not reflect findings suggesting that the Veteran’s June 2005 CEA procedure caused his right eye plaque, although they note the history of that procedure, along with the carotid stenosis itself. In his May 2011 statement, the Veteran apparently referred to a March 2011 letter from his optometrist in support of that statement. As discussed above, the March 2011 letter by the optometrist does not mention the Veteran’s June 2005 surgery. Accordingly, while the Veteran’s statement is competent to the extent he asserts that a physician told him his right eye plaque was caused by the June 2005 surgery, it is not probative because it is inconsistent with the March 2011 letter on which that assertion was apparently based, and is not consistent with the findings in the VA treatment records, which do not suggest that his right eye plaque was caused by the June 2005 procedure. Rather, the probative evidence shows that the Veteran’s cardio-vascular condition itself was the likely cause. To the extent the Veteran believes that the right eye plaque and resultant visual field defect was caused by the June 2005 surgery, the Board finds that he does not have the expertise to render a competent opinion on this issue, which is too complex to be made based on lay observation alone, and therefore requires medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the Veteran does not account for the fact that his right eye plaque did not develop until nearly three years after the June 2005 procedure was performed, and that his visual field was first found on examination in June 2009, four years after that procedure. In sum, the preponderance of the evidence weighs against a finding that any of the Veteran’s right eye conditions were proximately caused by the June 2005 CEA procedure. In the alternative, the Board finds that even if the Veteran’s right eye plaque could be attributed to the June 2005 surgery, the criteria for compensation under § 1151 would still not be satisfied. As found in the December 2019 VA opinion, there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the performance of the CEA surgery, which was performed with his signed informed consent, including with respect to potential risks of the procedure. The competent evidence of record does not otherwise show that performance of the procedure, which the records show was without complications, fell below the standard of care. The Veteran, as a lay person in the field of medicine, does not have the expertise to render a competent opinion on this issue, which is too complex to be made based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77. The Veteran has not submitted any evidence to support a finding that performance of the June 2005 CEA procedure fell below the standard of care, or that VA was at fault in performing the procedure in the first place. The December 2019 VA opinion, in which the ophthalmologist found that the procedure did not fall below the standard of care, outweighs any suggestion to the contrary by the Veteran. With regard to the issue of foreseeability, the May 2020 VA opinion states that the development of the Veteran’s right eye plaque was not a reasonably foreseeable consequence of the June 2005 surgery, but for the reason that it was not caused by the surgery at all, but rather by his underlying carotid stenosis, as stated in the examiner’s explanation for that conclusion. In the absence of a causal relationship to that surgery, the issue of foreseeability becomes moot. In the alternative, even if, for the sake of argument, the development of the right eye plaque and resultant visual field defect were due to an event not reasonably foreseeable as a result of the June 2005 CEA surgery, the criteria for compensation under § 1151 would still not be satisfied. In this regard, failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment in view of the consequences of foregoing it. McNair v. Shinseki, 25 Vet. App. 98 (2011). As explained in the May 2020 opinion, the Veteran would have been at higher risk of strokes and vision loss had he not undergone the endarterectomy procedure. The February 2005 VA treatment record also indicates he would be “candidate for stroke” if the surgery were not performed. Accordingly, the Board finds that a reasonable person would have proceeded with that surgery, given the potential consequences of foregoing it. See id. Therefore, the fact that the development of a right eye plaque and resultant visual field defect may not have been disclosed to the Veteran as a risk of that procedure does not defeat a finding of informed consent in this case. See id. In any event, the Board finds that the June 2005 procedure did not proximately cause the Veteran’s right eye plaque and resultant visual field defect, glaucoma, or any other right eye condition, for the reasons already discussed. In sum, the criteria for compensation under 38 U.S.C. § 1151 for a right eye condition have not been met. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.