Citation Nr: A21017774 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 200203-73537 DATE: November 3, 2021 ORDER Entitlement to service connection for right hand arthritis is denied. Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness is denied. FINDINGS OF FACT 1. The competent evidence of record shows the Veteran does not manifest right hand arthritis. 2. The Veteran was advised of the risks and expectations left eye surgery to address recurrent failed cornea grafts, he was noncompliant with medication to manage intraocular pressure, and treatment by Department of Veterans Affairs (VA) physicians was appropriate and did not result in additional disability, including left eye blindness. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand arthritis disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310. 2. The criteria for compensation for left eye blindness pursuant to 38 U.S.C. § 1151, 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 September 1953 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a VA Form 10182 within 60 days of the January 2020 Statement of the Case. The Veteran elected the Board's hearing docket on the February 3, 2020 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the September 2018 rating decision and evidence submitted with, or within 90 days of filing of, the Veteran's hearing before a Veterans Law Judge (VLJ). 38 C.F.R. § 20.302. In June 2021, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in a videoconference hearing. A transcript of this hearing is of record. 1. Entitlement to service connection for right hand arthritis is denied. The Veteran filed a March 2016 claim explicitly claiming right hand arthritis, as secondary to right hand condition, and right-hand arthritis secondary to postoperative residuals. See March 2016 Claim. In May 2016, the RO denied the Veteran's claim of service connection for right hand arthritis. The May 2016 rating decision denied the claim essentially based on a finding of no diagnosis of disability and no nexus to service, the Veteran did not attend a VA examination scheduled for this claim. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Here, VA has obtained a VA examination in June 2018 since the last adjudication of the claim, and the RO has implicitly readjudicated the claim in a September 2018 rating decision. The Board will not disturb these favorable findings and will readjudicate the claim on the merits. The Veteran has also testified at a June 2021 hearing before the undersigned. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §§ 1110, 1131, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1)a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board finds that the Veteran does not have a current diagnosis of arthritis and has not had a diagnosis for that disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the medical evidence of record does not indicate that the Veteran has a current diagnosis for arthritis. Following the Veteran's application to reopen, he was scheduled for a VA examination that he attended in June 2018. The VA examiner noted that VA medical records from June 2018 show the Veteran underwent X-ray imaging and the results did not demonstrate right hand arthritis. See June 2018 Examination. As noted above, the Veteran also testified at a June 2021 hearing. See June 2021 Hearing Transcript. The Veteran testified at the June 2021 hearing that he had not been told by his physician's that he had right hand arthritis. While the Veteran is competent to report that he experiences pain in his right hand, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations arthritis or his currently diagnosed disability of postoperative residuals of laceration of the right ring finger as the Veteran has not demonstrated the necessary medical expertise. These issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreauv. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges that the Veteran is competent to report what he has been told by a physician, but he reports he has not been informed he has arthritis of the right hand. The Board has considered whether the Veteran has simply misidentified the disability for which he seeks service connection. Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). The Veteran's June 2021 testimony describes his symptoms as comprised of pain and weakness of the right hand. The Veteran has already been awarded service connection for postoperative residuals of laceration of the right ring finger and an associated donor site scar on the right thigh. These disabilities cannot be granted service connection again and the Veteran's March 2016 and April 2018 claims both explicitly list right-hand arthritis, as secondary to right hand condition, and right-hand arthritis secondary to postoperative residuals. See March 2016 Claim; see also April 2018 Claim. The Veteran has reported that his symptoms include pain. Pain alone can serve as a functional impairment and therefore qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Thus, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Id. However, here, the Veteran has not presented evidence of any current functional impairment as a result of pain other than the disabilities which are already service connected. Instead, he is insistent on the presence of additional disability for which secondary service connection could be established and has explicitly claimed service connection for arthritis of the right hand. The evidence of record, including the Veteran's testimony, is not sufficient to establish a current disability of the right hand separate and distinct from his already service-connected postoperative residuals of laceration of the right ring finger. This is particularly true given the lack of evidence of the explicitly claimed arthritis disability on X-ray examination. The Board concludes that the criteria for service connection have not been met. 38C.F.R. §3.03. Accordingly, service connection for right hand arthritis is denied. 2. Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness is denied. The Veteran claims left eye blindness due to VA treatment. See February 2018 Claim. The Veteran asserted at the June 2021 hearing that he did not provide informed consent for surgical treatment with an explanation of the risks and benefits and that he experienced complications from left eye surgery that caused blindness. See June 2021 Transcript. It is unclear if the Veteran is asserting negligence in care or improper medical treatment, his testimony references several surgeries and he is not specific which surgery he believes caused left eye blindness, and he reports that his physician told him that his prior history of left eye trauma resulted in the complications he experienced. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and 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 that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(3). Moreover, additional disability 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). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability 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 of injury for which the care or 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 factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 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 was the proximate cause of 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; 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 informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(1). Regarding reasonable foreseeability, 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. 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements a veteran's disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Analysis Initially, the Board notes that on entrance to active duty, service records show that the Veteran was found to have a traumatic cataract of the left eye that impacted his vision but was not disqualifying. See September 1953 Examination. Service connection has been denied for this disability on a direct basis. See December 1961 Rating Decision. As to additional disability as shown by comparing the veteran's condition before and after the VA medical care in question, the Veteran has reported to VA that he is blind in the left eye. See May 2018 Medical Record. The Board notes the Veteran informed VA he needed transportation assistance due to vision loss in the left eye. The Board finds that additional disability of left eye blindness is established as by comparison to Vision prior to September 2014 and September 2016 surgeries and blindness as of May 2018. The Veteran testified at the hearing before the undersigned that he was not advised of the risks of surgery prior to several procedures. See June 2021 Hearing Transcript. The Board notes the Veteran's informed consent is documented in the medical record. See September 2014 Medical Record; see also September 2016 Medical Record. The Board finds that his subsequent denials that he was not given the opportunity to weigh the risks and benefits of treatment by VA providers is contradicted by contemporaneous medical records documented by treatment providers. See Curry v. Brown, 7 Vet. App. at 68 (contemporaneous evidence has greater probative value than history as reported by the claimant). Based on this history of inconsistent statements, the Board finds the Veteran not credible as to the assertions of being treated by VA surgeons without having given informed consent. Importantly, the Board finds the Veteran is not credible as to his assertion that he did not give informed consent for treatment. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In this respect, the documentation of informed consent in the record also indicates the Veteran would have been counseled on the risks of eye surgery, including potential impacts to his vision. VA obtained an opinion as to whether the Veteran manifested additional disability that is attributable to 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, in September 2018. See September 2018 Opinion. Importantly, the September 2018 opinion finds the Veteran's noncompliance with glaucoma medication, and his history of trauma to the left eye, predisposed the Veteran to experience recurrent cornea graft failures, choroidal hemorrhage, and glaucoma resulting in blindness. The September 2018 examiner noted the evidence of informed consent in the record and found the surgical treatment from September 2014 to September 2016 was appropriate and timely. The examiner noted this treatment resulted in a resolution of complications and reduction of intraocular pressure in September 2016, despite complications of choroidal hemorrhage in September 2014. The examiner noted the Veteran's prior history of trauma to the left eye was significant in causing increased risk for choroidal hemorrhage as this complication occurs in approximately 0.7% of cases. Finally, the September 2018 examiner found the Veteran's noncompliance with medication for glaucoma resulted in left eye blindness. The Veteran was noted to be noncompliant with glaucoma treatment for periods of months at a time. The examiner also noted that in May 2018, after being noncompliant with glaucoma medication for months, the Veteran's intraocular pressure had risen to 46 from the high teens in September 2016. The Veteran was counseled in May 2018 that he would lose his left eye vision if he continued to be noncompliant with medication, however, the Veteran acknowledged that he wished to treat his worsening glaucoma with comfort measures. Even assuming that the Veteran had not failed to follow medical advice, the Board finds the preponderance of the evidence shows that the additional disability of left eye blindness was not proximately caused by an instance of fault on VA's part in furnishing medical care to the Veteran. 38 C.F.R. § 3.361(d). The Board interprets the September 2018 opinion to indicate the proximate cause of his left eye blindness was the Veteran's personal choice to cease medication to control intraocular pressure associated with glaucoma, not complications from surgeries in September 2014 or September 2016 or complications involving choroidal hemorrhage. While the September 2018 opinion notes the complications of choroidal hemorrhage during the September 2014 surgery, the opinion also indicates this was immediately treated in a medically appropriate manner and resolved. In light of the foregoing, the Board finds that the Veteran failed to follow medical advice to continue treatment for glaucoma. The preponderance of the evidence shows he chose to discontinue his medication against the advice of his doctors and was noncompliant with medication for significant periods of time. Thus, the Board finds that the Veteran's left eye blindness was not caused by VA medical care due to failure to follow medical advice. 38 C.F.R. § 3.361(c)(3). 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, 492 F.3d at 1376, ("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 an opinion that the proximate cause of his claimed disabilities was either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The Board assigns controlling probative value to the September 2018 examiner's opinion because they reviewed the evidence of record and supported their opinion with rationale, including citation to the clinical record and discussion of relevant medical literature. The Board finds that the VA physicians were not careless, negligent, or displaying a lack of proper skill or error in providing the Veteran with surgical treatment, medication, and follow-up care in the context of failed cornea grafts, glaucoma, choroidal hemorrhage complications, and prior history of left eye trauma resulting in traumatic cataract. The preponderance of the evidence weighs against a finding that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the treatment without the Veteran's informed consent under the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(1); McNair v. Shinseki, 25 Vet. App. 98 (2011). (Continued on the next page) Further, the preponderance of the evidence is against a finding that the proximate cause of the Veteran's claimed disability was an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Most importantly, the Veteran's failure to follow medical advice in ceasing medication for glaucoma was determined by the September 2018 VA examiner to be the proximate cause of his left eye blindness. The Board finds that the risk of vision loss was communicated to the Veteran in May 2018 and was entirely foreseeable. The Board finds that on balance, the weight of the evidence is against the claim. In reaching the above conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.