Citation Nr: 21071558 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-35 769 DATE: November 30, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left eye disability diagnosed as Cystoid Macular Edema (CME) and scleritis as a result of cataract surgery performed at a VA medical facility is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran sustained an additional disability of the left eye, namely Cystoid Macular Edema (CME) and scleritis, after left eye cataract surgery performed at a VA facility on February 28, 2012, which was the result of posterior capsular rupture, an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a left eye disability, namely Cystoid Macular Edema (CME) and scleritis, have been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1951 to March 1953. These matters are before the Board of Veterans' Appeals (Board) on appeal of November 2015 (declined to reopen the claim for compensation under 38 U.S.C. § 1151) and July 2018 (TDIU) rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In a February 2019 decision, the Board found new and material evidence had been received, reopened the claim for compensation under 38 U.S.C. § 1151 and remanded the matter for additional development. This claim, as well as the matter of entitlement to TDIU, were remanded for compliance with the February 2019 Board remand as well as additional development in January 2020 and March 2021. After review of the development accomplished by the AOJ, it is noted that the January 2020 Board remand requested the RO to obtain a copy of a 2019 addendum opinion which has not been obtained and is unavailable for review (a Compensation and Pension Exam Inquiry printed on September 25, 2019 notes the opinion was "released to RO, not printed" on September 13, 2019; however, the November 2019 SSOC lists this addendum opinion as included in the evidence considered). As the below decision is a fully favorable resolution of the Veteran's appeal as to this claim, there is no prejudice to the Veteran in proceeding with adjudication of this matter. 1. Compensation Under 38 U.S.C. § 1151 The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. Under these provisions, the additional disability or death due to hospital care, medical or surgical treatment, examination, or training and rehabilitation services requires actual causation. 38 C.F.R. § 3.361. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, 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 medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical 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, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d) & (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 of this chapter. 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). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d)(1). Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32(d)(1)(ii). The Veteran asserts that he is entitled to compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA left eye cataract surgery. The Veteran contends the surgery performed by VA resulted in additional surgeries and a worsening of his eye function and ability to complete activities of daily living independently. See June 2014 letter from the Veteran. The medical evidence shows that on February 24, 2012, the Veteran was scheduled to undergo phacoemulsification of the left eye. However, although the Veteran was brought to the operating room, IV (intravenous) sedation was started and a peribulbar block was placed on the left orbital without complications, the surgery was cancelled because the surgeon stuck himself in the left middle finger with a peribulbar needle. The phacoemulsification of the left eye was rescheduled for February 28, 2012. However, a complication was encountered while the Veteran was undergoing the surgical procedure. Specifically, there was a posterior capsular rupture. The Operation Report shows that, when the nucleus was rotated using a nucleus rotator, "it was noted that the cataract was tilting and eventually dropped into the vitreous." After completion of the procedure, the Veteran was taken to the recovery room in stable condition. A Post Operative note from the date of surgery shows there were "unusual events or postoperative complications" identified as "posterior capsule rupture dropped nucleus." The surgeon noted the Veteran "will need retinal evaluation and surgery" to manage the complications. The Veteran was discharged to outpatient clinic in satisfactory condition. Private treatment records include a March 2013 letter referring the Veteran to the Cleveland Clinic for left eye follow-up, general ophthalmology and plastics. It is noted that the Veteran "originally underwent phacoemulsification lens placement surgery in his LEFT eye on 2/28/12, and was noted to have posterior capsular rupture with retained lens fragments." He underwent surgery on "3/2/12 for a pars plana vitrectomy, pars plana lensectomy, removal of lens fragments, and placement of sulcus implant lens model MA50BM17.5 diopters." It is further noted that the Veteran "developed postoperative scleritis requiring oral Prednisone. He relapsed six months later, in October of 2012 requiring another round of oral steroids. After his second round of postoperative scleritis resolved, he developed significant cystoid macular edema [CME] with 20/150 vision in the LEFT eye which was completely resolved with two intravitreal Avastin injections, in January and February of 2013." On examination on the date of this letter, the Veteran appeared "to be stable in the LEFT eye with a completely dry fovea and complete resolution of CME." His visual acuity was 20/100, pinhole 20/40. He had not received his postoperative refraction from cataract surgery due to his multiple issues. Treatment records from the Cleveland Clinic include an April 2013 report of office visit which notes that, since the phacoemulsification of the left eye a year ago, "he has been having many problems with his left eye specifically recurrent scleritis." These records include diagnoses of "[p]seudophakic CME OS (left eye) s/p (status post) PPV (pars plana vitrectomy) for retained lens and sulcus IOL (intraocular lens) placement" and a history of "surgical scleritis." A January 2014 VA medical advisory opinion, provided by an ophthalmologist based on a review of the Veteran's chart, includes the finding that the medical expert found "no evidence of negligence" in the Veteran's care by VA. The medical expert explained that "[e]verything was handled in a completely appropriate fashion. Though [the Veteran] did have a complication in the original surgery, this was not the result of negligence." The September 2013 addendum opinion as reported in the November 2019 SSOC indicated the ruptured capsule required a secondary operation by a specialist at the Retina Center and the Veteran's post-operative course was also complicated by retinal edema and mild scleritis. The opinion indicated that a ruptured capsule is not a rare complication of cataract surgery and that a "rate of 1%-2% would be expected." The opinion provider reportedly found that the Veteran did have a complication during his cataract surgery that delayed the recovery of his vision and caused him to experience some discomfort. The opinion provider apparently concluded there was no breach in the standard of care on the part of VA. In a June 2019 medical advisory opinion submitted by the Veteran's attorney, a private nurse practitioner opined: The veteran's chronic left eye pain and vision changes are a result of negligence on the surgeon's part. The procedure was abruptly ended after sticking himself with the needle used to perform the peribulbar block on 2/28/12. This resulted in a post capsule rupture; dropped nucleus of his left eye and retained lens fragments. This required an urgent evaluation with retinal specialist on March 1st with surgery March 2nd to for [sic] a pars plana vitrectomy, pars plana tensectomy, removal of retained lens fragments and placement of lens implant." Initially, it is noted that, although the opinion lists reviewed evidence which do not correspond to the Veteran's medical history, as the opinion and rationale include references to the Veteran's 2012 VA and private left eye surgery, this erroneous listing of evidence, alone, does not diminish the potential probative value of the opinion. However, because the opinion relies on an inaccurate recitation of the Veteran's left eye surgical history, the Board finds it is of no probative value. Specifically, the opinion provider based the opinion on the initial cancelled surgery during which the surgeon stuck himself in the left middle finger with a peribulbar needle and noted that "there is no documentation that this procedure was done. The only procedure documented is the peribulbar bloc, a regional anesthetic nerve block in the area surrounding the eye, therefore, the only documented cause of these complications must be the block itself complicated by the surgeon sticking himself with the needle resulting in abrupt cancelation of the procedure delayed corrective action." As the opinion mischaracterizes the evidence (the opinion provider found "no documentation" of the second surgery with the complication of "posterior capsule rupture dropped nucleus"), it is based on an inaccurate factual premise and has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based on an inaccurate factual premise has no probative value). A March 2020 VA eye conditions examination report notes that "[f]ollowing cataract surgery in the left eye, patient did develop Cystoid Macular Edema (CME) and scleritis which explained the reduced vision. The scleritis resolved in 2017 but the CME continues off and on even with treatment of several intravitreal injection of Avastin." The optometrist opined: (a) The Vet did suffer from additional complication due to his left eye cataract surgery performed by VA on 2/28/2012. (b) The additional complication of posterior capsular rupture during surgery was Not a foreseeable complication of the left eye cataract surgery. (c) This additional disability of the left eye was Not proximately caused by 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. (d) There was additional disability proximately cause by an event not reasonably foreseeable. 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. (e) The March 2012 procedure performed by the private practitioner after the February 2012 VA left eye cataract procedure is standard practice within 3 days of the left eye cataract procedure. Of course, if there were no complications associated with cataract surgery, the patient would normally not need to see a retinal specialist. Similarly, a June 2020 VA eye examination report includes the opinion that (1) the Veteran suffered from additional complications due to his left eye cataract surgery performed by VA on February 28, 2012 because (2) he "developed a rupture of the posterior capsule and retained lens fragments;" (3) the "rupture of the posterior capsule and retained lens fragments is not considered a foreseeable complication of the left eye cataract surgery" because (4) "during the cataract surgery this is a known complication;" (5) there is no evidence that the additional disability of the left eye was proximately caused by 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 because (6) the Veteran was referred to a retinal specialist who handled matters appropriately; (7) the additional disability proximately cause by an event not reasonably foreseeable was a type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures because (8) "it is a known complication of the procedure;" and (9) the performance of the March 2012 procedure by the private practitioner after the February 2012 VA left eye cataract procedure "is standard practice within 3 days of the left eye cataract procedure" because (10) "[s]o long as the eye is amenable to proceeding with removal of retained lens fragments and placement of a lens, the retinal specialist may proceed when they see fit." Pursuant to the March 2021 Board remand, a copy of the Consent for Clinical Treatment/Procedure in connection with the February 2012 cataract phacoemulsification with or without insertion of intraocular lens was obtained. This consent includes a detailed description of the procedure for removal of the cloudy (cataract) lens, possible placement of an artificial lens to reduce the need for glasses after the operation and a list of known risks and side effects of the treatment/procedure. Although this list includes the risk of changes in/loss of vision, swelling of the retina, inflammation of the tissues in the eye, dislocated lens, eye pain and the need for additional tests or treatment, there is no suggestion that the Veteran was notified of and consented to the risk of rupture of the posterior capsule and retained lens fragments. Informed consent must follow "a careful explanation by the practitioner...in language understandable to the patient or surrogate the nature of...reasonably foreseeable associated risks, complication or side effects." Following the explanation, "[t]he patient or surrogate must be given the opportunity to ask questions, [and] to indicate comprehension of the information provided." 38 C.F.R. § 17.32(c). While the 2020 medical opinions stated that the risk of the posterior capsular rupture was the type of risk a reasonable health care provider would have disclosed, the 2020 medical opinion providers also found that posterior capsular rupture was not reasonably foreseeable, and the listed risks on the signed documentation of consent do not include a rupture of the posterior capsule. Based on the above, and affording the Veteran the benefit of the doubt, the Board finds that a rupture of the posterior capsule and retained lens fragments was not reasonably foreseeable. Regarding additional disability, the March and June 2020 VA examiners both diagnosed additional disability, namely rupture of the posterior capsule and retained lens fragments resulting in cystoid macular edema and scleritis following left eye cataract surgery. Accordingly, because the Veteran has additional left eye disability as a result of cataract surgery performed at a VA medical facility due to an event that was not reasonably foreseeable, the criteria for compensation under 38 U.S.C. § 1151 are met and the claim must be granted. REASONS FOR REMAND 2. TDIU Regarding the matter of entitlement to TDIU, as the decision above has granted compensation under 38 U.S.C. § 1151 for a left eye disability, adjudication of the TDIU claim is deferred pending implementation of the grant of compensation for the left eye disability. The matter is REMANDED for the following action: The AOJ should review the expanded record, implement the grant of compensation under 38 U.S.C. § 1151 for a left eye disability (assigning an appropriate disability rating and effective date), and readjudicate the claim for a TDIU rating in light of this award. If TDIU remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.