Citation Nr: 21006295 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-29 443 DATE: February 3, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 (2012) for a right retinal detachment due to right eye cataract surgery in March 2008 and subsequent treatment at a Department of Veterans Affairs (VA) medical center is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a disability due to three fee-basis surgical repairs of a right retinal detachment in 2010 that were performed by a VA employee at a private facility is denied. FINDINGS OF FACT 1. The Veteran underwent surgery for a cataract on the right eye at a VA medical center in March 2008 and received follow-up treatment through January 2010. Dr. A. performed the cataract surgery. 2. In January 2010, the Veteran presented at a VA medical center emergency room for decreased vision in the right eye and a right retinal detachment was diagnosed. 3. In January, February, and April 2010, Dr. A. performed three fee-basis surgeries at a private facility to repair the right retinal detachment. 4. The weight of evidence is against a finding that the right retinal detachment was caused by the March 2008 cataract surgery performed by Dr. A. or subsequent VA treatment. 5. The weight of evidence shows that Dr. A. was performing duties as a VA employee when she performed three eye surgeries on the Veteran in 2010 at a private facility on a fee-basis authorization. 6. The weight of evidence is against a finding Veteran has an additional disability caused by the three 2010 fee-basis surgeries performed at a private facility by Dr. A. as a VA employee to repair the right retinal detachment. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right retinal detachment due to a cataract surgery in March 2008 and subsequent treatment at a VA medical center have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2020). 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a disability due to three fee-basis surgical repairs of a right retinal detachment in 2010 that were performed by a VA employee at a private facility have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the electronic record. In September 2018, the Board remanded the issue for further development. The Veteran is claiming that his right retinal detachment is due to March 2008 cataract surgery performed at a VA medical center by Dr. A. He also claims that Dr. A. was negligent in performing the three surgeries at a private facility in 2010 to repair the right retinal detachment. Hearing transcript, page 2; August 2020 statement of the Veteran. As the surgeries performed by Dr. A. were at both VA and private facilities, the Board will separately address the 1151 claims based on where the medical treatment was provided. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Compensation under 38 U.S.C. § 1151 1. Entitlement to compensation under 38 U.S.C. § 1151 (2012) for a right retinal detachment due to right eye cataract surgery in March 2008 and subsequent treatment at a VA medical center 2. Entitlement to compensation under 38 U.S.C. § 1151 for a disability due to three fee-basis surgical repairs of a right retinal detachment in 2010 that were performed by a VA employee at a private facility Governing law and regulations In pertinent part, 38 U.S.C. § 1151 reads as follows: “(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and – “(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was – (A) 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; or (B) an event not reasonably foreseeable.” To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in additional disability. Merely showing that a veteran received care or treatment and that a 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 or injury for which the care, treatment, or examination 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). 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Analysis The Veteran underwent surgery for a cataract on the right eye at a VA medical center in March 2008 and received follow-up treatment through January 2010. Dr. A. performed the cataract surgery. In January 2010, the Veteran presented at a VA medical center emergency room for decreased vision in the right eye and a right retinal detachment was diagnosed. In January, February, and April 2010, Dr. A., as a VA employee, performed fee-basis surgeries at a private facility to repair the right retinal detachment. Treatment at a VA medical center Turning first to the treatment at a VA medical center, a February 2020 VA examiner opined that the cataract surgery and post-operative care were not likely to be factors in the Veteran’s retinal detachment in 2010. The examiner noted that cataract surgery was uncomplicated and that the recovery and post-operative period were unremarkable. The examiner indicated that he maintained good vision in the right eye until the retina detached in January 2010. The examiner reiterated that cataract surgery is unlikely related to the retinal detachment. In a November 2020 VA medical opinion, another VA doctor stated it is less likely than not that the right eye retinal detachment, which was documented on January 2, 2010, was caused by the right eye cataract surgery performed in March 2008. The physician noted that the cataract surgery was uncomplicated. The doctor indicated that the post-operative period for cataract surgery is 90 days. The doctor added that the Veteran had documented right eye vision of 20/25 in November 2009, which was well out of the 90-day post-operative period, and that the right eye retinal detachment occurred more than 21 months after the cataract surgery. The physician stated that the decreased vision was caused by the retinal detachment and not the cataract surgery performed by Dr. A. The doctor noted that the decreased vision was caused by the retinal detachment and not by a failure on the part of VA to timely diagnose or properly treat the retinal detachment. The physician noted that it was documented that the Veteran complained of decreasing vision in the right eye for approximately two weeks before presenting to the VA emergency department in early 2010, which is evidence that the retina detached two weeks prior to the Veteran going to the emergency room. The Board notes that prior to treatment for the retinal detachment in early January 2010, the Veteran was last evaluated by VA for his vision in November 2009. VA treatment records reflect that in February 2008 the risks of cataract surgery were explained to the Veteran. It was noted that there could be a risk for a need for future surgery or treatment, including retinal surgery for a retinal detachment. The Board places more weight on the two VA medical opinions that were rendered after the surgery than on a general discussion of risks prior to the surgery because the VA medical opinions addressed the specifics of the Veteran’s surgery, to include the lack of evidence of a retinal detachment during the 90-day post-operative period. Private treatment records reflect that in March 2016 the Veteran reported that his right eye retinal detachment was in 2008. The impressions included retinal detachment of the right eye in 2008. The notation that the retinal detachment was in 2008 is merely the reporting by the Veteran. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). That notation is not a medical opinion indicating that retinal detachment began in 2008, the year that the Veteran underwent cataract surgery, much less a medical opinion indicating that the retinal detachment was due to the cataract surgery. Thus, the notation in the private treatment record is not competent medical evidence showing that the retinal detachment was due to the cataract surgery. The Veteran claims that the cataract surgery caused the retinal detachment because Dr. A. was a resident physician when she performed the cataract surgery. Hearing transcript, page 6. VA treatment records reveal that Dr. A. was indeed a resident physician when she performed the surgery. That said, there is still no medical evidence indicating that the cataract surgery caused the retinal detachment, regardless of whether the surgery was performed by a resident doctor or a more experienced physician. As to the Veteran’s claim that his cataract surgery caused the retinal detachment, lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As to the specific issue in this case, however, the relationship between cataract surgery and retinal detachment falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As the weight of evidence is against a finding that the retinal detachment was caused by the cataract surgery or follow-up treatment, the Board does not have to address whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The Veteran testified that a private doctor told him that the odds of a detached retina as a complication of cataract surgery were minimal. Hearing transcript, page 8. The Veteran further testified that the odds of such a complication were 1 in 250,000. Id. at 9. As the weight of evidence is against a finding that the retinal detachment was caused by the cataract surgery or follow-up treatment, the Board does not have to address whether the detached retina was an event not reasonably foreseeable, regardless of the odds of such a complication occurring. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that the right retinal detachment was caused by the March 2008 cataract surgery performed by Dr. A. or subsequent VA treatment. Therefore, the preponderance of the evidence is against the claim, and it is denied. Treatment at a private facility As for the three surgeries performed in 2010 by Dr. A. at a private facility to repair the detached retina, an August 2020 report of general information reflects that a representative from a VA medical center stated that a medical provider is considered a VA employee when treating a veteran even when treatment is at a non-VA facility. Thus, the weight of evidence shows that Dr. A. was performing duties as a VA employee when she performed three eye surgeries on the Veteran in 2010 at a private facility on a fee-basis authorization. Since Dr. A. was a VA employee, the next matter is whether there was an additional disability from the three surgeries performed by Dr. A. in 2010 to repair the detached retina. The February 2020 VA examiner did not render an opinion on this matter and instead stated that a retinal surgeon would be more qualified than him to render an opinion because the medical issues pertained to a relatively complex retina case. In the November 2020 VA medical opinion, a VA doctor opined that it is less likely than not that the Veteran has any additional disability that was caused by a surgery performed by Dr. A. at a private hospital as a VA employee. The physician stated that the Veteran has decreased vision caused by the retinal detachment and not by a surgery. The doctor noted that in early January 2010, he complained of decreasing vision in the right eye for approximately two weeks before presenting to the VA emergency department, which is evidence that the retina detached two weeks prior to going to the emergency room. The physician noted that the Veteran was diagnosed with a total macula-off retinal detachment. The doctor indicated that the medical literature indicates that the prognosis for good vision decreases significantly if the repair occurs more than 72 hours after the detachment. The physician added that he already had signs of inflammation as well as a vitreous hemorrhage at the time of the presentation at the emergency department in January 2010. The doctor concluded that the delay in repair caused by the Veteran’s delay in presentation to the emergency department is at least as likely as not the cause for the current visual disability. As to the Veteran’s claim that his retinal repair surgeries performed by Dr. A. caused visual impairment, the Board notes that the relationship between retinal repair surgery and visual impairment falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1733 n. 4. As the weight of evidence is against a finding that Veteran has an additional disability caused by the three fee-basis surgeries performed at a private facility by Dr. A. as a VA employee to repair the right retinal detachment, the Board does not have to address whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of Dr. A. in performing the surgeries at a private facility. Similarly, the Board does not have to address whether an additional disability was an event not reasonably foreseeable. In short, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that Veteran has an additional disability caused by the three fee-basis surgeries performed at a private facility by Dr. A. as a VA employee to repair the right retinal detachment. Therefore, the preponderance of the evidence is against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.