Citation Nr: 21005045 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-12 192 DATE: January 28, 2021 ORDER Compensation under 38 U.S.C. § 1151 for right eye cataract surgery is denied. FINDINGS OF FACT 1. The Veteran has an additional disability (loss of vision in the right eye from retinal detachment) that did not exist before the right eye cataract surgery. 2. The additional disability was caused by the VA cataract surgery. See February 2019 VA medical opinion. 3. Retinal detachment was a foreseeable consequence of the cataract surgery. See February 2019 VA medical opinion. 4. Retinal detachment was less likely than not the result of carelessness, negligence, lack of skill, or a similar incidence of fault on the part of attending VA personnel. See February 2019 VA opinion 5. The Veteran was appropriately informed about the risks of the surgery (including potential retinal detachment) and signed a consent form confirming that he had been informed about these risks. CONCLUSION OF LAW The criteria have not been met for compensation under 38 U.S.C. § 1151 for loss of vision in the right eye. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § § 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1953 to October 1955. This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2017 and July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran timely filed a Notice of Disagreement and in April 2019 he perfected the appeal. In July 2019, a hearing was held before the undersigned Veterans Law Judge and the transcript is of record. In October 2019, the matter was remanded to obtain any documents relating to the pre-surgery signed consent form to the record. That development has been completed and the matter has returned to the Board for adjudication. Legal Criteria - 38 U.S.C. § 1151 Compensation shall be awarded under § 1151 in the same way as service-connected compensation when a Veteran (1) receives an additional disability that is (2) proximately caused (3) by VA’s “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” in providing medical care. To assess whether a qualifying additional disability exists, VA must compare the Veteran’s condition immediately before and after the relevant medical care. To establish proximate causation, the evidence must show that the medical care resulted in the Veteran’s additional disability (that is, merely showing that a Veteran received VA medical care and has an additional disability does not establish causation). 38 C.F.R. § 3.361(c)(1). It must also be shown that (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider OR (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. 38 C.F.R. § 3.361(d)(1). Factual Background and Analysis In this case, most of the elements of the § 1151 analysis are not in dispute. The Veteran has an additional disability (loss of vision in the right eye from retinal detachment) that did not exist before the right eye cataract surgery. See, e.g., Dr. Larzo April 2017 statement. Also, as indicated in the February 2019 VA medical opinion, the Veteran’s additional disability was caused by the VA cataract surgery. However, the February 2019 VA medical opinion also concluded that retinal detachment was a foreseeable consequence of the cataract surgery and that it was less likely than not the result of carelessness, negligence, lack of skill, or a similar incidence of fault by any VA personnel. See February 2019 VA opinion. Therefore, the outcome of the case turns on whether the Veteran provided informed consent for the surgery that caused his additional disability. The Board finds that the Veteran was appropriately informed about the risks of the surgery (including potential retinal detachment) and signed a consent form confirming that he had been informed about these risks. See February 27, 2014 signed consent form. Therefore, benefits under § 1151 cannot be granted. The Veteran has asserted that he was not counseled by the doctor who performed the surgery and that this doctor did not obtain his consent, either orally or in writing (because until shortly before the surgery, he had been communicating with the doctor who performed the previous cataract surgery on his other eye). The Board does not doubt the sincerity of the Veteran’s belief in these assertions. However, there is a signed consent form for the surgery in the record and the Board is forced to conclude that the Veteran did provide informed consent for the surgery and does not, in retrospect, remember having signed the form. (Continued on the next page)   The Board regrets that a more favorable outcome cannot be provided but, for the reasons explained above, the appeal must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arritt, David 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.