Citation Nr: 21072604 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-12 649 DATE: December 3, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a left eye injury is denied. FINDING OF FACT The Veteran does not have additional left eye disability that resulted from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a left eye injury have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from March 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing when he filed his VA Form 9, Appeal to Board of Veterans' Appeals, in February 2018. The Veteran was scheduled for a hearing in October 2021. However, the Veteran later withdrew this request via telephone on September 22, 2021 explaining that he was unable to attend the scheduled hearing. He also stated that he did not want to reschedule this hearing and instead he wanted his appeal to go before the Board for a decision based on the information already in the claims file. On October 5, 2021, the Veteran again called VA and explained he would be unable to attend the October 7, 2021 hearing because he cannot drive. However, he did not want to reschedule this hearing and requested that his appeal go directly to the Board for a decision. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye injury is denied. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. 38 C.F.R. § 3.361. To establish causation, first, there must be evidence of additional disability or death. 38 C.F.R. § 3.361 (b). Second, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or 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). In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361 (a). 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, it must be shown that the hospital care or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d). The Veteran contends that he incurred additional disability in the form of a left eye disability to due VA negligence during the September 2011 left eye cataract surgery. The Veteran underwent a VA examination in November 2015. The Veteran reported having what he considered residuals of left eye cataract removal. He had a posterior capsular rupture with subsequent implantation of a three-piece IOL with the retention of a small amount of cortex. The Veteran also reported that subsequent to his surgery, his previously diagnosed Fuchs Dystrophy had worsened in both eyes. The Veteran reported seeing a private sector retinal specialist who was injecting his left eye for diabetic retinopathy. Even so, the Veteran insists his decreased left eye vision was caused by the cortex left in his eye following his cataract surgery. Additionally, the examiner noted the operative note states that "A SMALL AMOUNT OF CORTICAL MATERIAL REMAINED SUBINCISIONALLY WHICH WAS NOT ABLE TO BE REMOVED." The examiner noted the Veteran had corneal conditions, cataracts, and other lens conditions. The examiner noted the Veteran's decrease in visual acuity was attributable to Fuchs Dystrophy and diabetic retinopathy (noted by the Veteran's medical history) and was not related to his cataracts post-operation. The examiner further noted the record reported there was a "miniscule amount of cortex left subincisionally, which is a not uncommon occurrence, and does not cause decreased vision." The examiner opined the Veteran's decreased left eye vision "undoubtedly is caused by diabetic retinopathy." The record shows the Veteran receives treatment from a private retinal specialist. The RO previously reached out to the Veteran via written correspondence dated March 28, 2018, in which the RO provided blank copies of VA Form 21-4142a, General Release for Medical Information to the Department of Veterans Affairs (VA) and VA Form 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs. The letter asked the Veteran to fill out and return these forms so the RO could request any related private treatment records. However, the Veteran never submitted these forms. In June 2015, the Veteran submitted a written statement contending that his September 2011 surgery was performed by an unqualified resident who had to be constantly corrected during the procedure. He further contends that this resulted in the surgery causing damage to his left eye. After reviewing the record, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to VA compensation pursuant to 38 U.S.C. § 1151 for a left eye injury as a result of his September 2011 cataract surgery. While the Veteran has decreased visual acuity in his left eye, the September 2011 surgery was not the actual or proximate cause of this disability. Although the Veteran is correct in stating that a piece of cortex was left in his eye after his surgery, the November 2015 examiner explained that not only was a "miniscule" piece of cortex left in his eye because it was not able to be removed, but that this was not uncommon and was a foreseeable occurrence in this type of surgery. Additionally, the examiner explained the Veteran had Fuchs Dystrophy and diabetic retinopathy in his left eye, both of which impact his vision, and the noted decrease in visual acuity described by the Veteran was "undoubtedly" caused by the Veteran's diabetic retinopathy, not by the September 2011 surgery. Additionally, the Veteran stated he was aware that a resident in training would be performing his surgery under the supervision of a qualified physician. Although the primary surgeon was a resident, the Veteran's statement indicates that the resident was being thoroughly guided by an experienced physician. Furthermore, the November 2015 examiner did not find any indication of negligence on behalf of the primary surgeon or supervising physician when reviewing the surgical notes. In fact, the examiner explained that not only was the amount of cortex left in the Veteran's eye "miniscule," but this was not an uncommon occurrence in this type of surgery, and even then, this would not cause the decreased vision experienced by the Veteran. Instead, the examiner was clear in that the most likely cause of the Veteran's decreased left eye vision was his diabetic retinopathy. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's decreased visual acuity in his left eye is the result of his September 2011 left eye cataract surgery. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for compensation under 38 U.S.C. § 1151 for a left eye injury is denied. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.