Citation Nr: 21008147 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 12-21 244 DATE: February 11, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left eye cataract status post-surgery and complicated by vitreous hemorrhage and resolved glaucoma is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s left eye cataract status post-surgery and complicated by vitreous hemorrhage and resolved glaucoma, is a qualifying additional disability resulting from cataract surgery at VA on September 1, 2010. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for left eye cataract status post-surgery and complicated by vitreous hemorrhage and resolved glaucoma have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to September 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was previously before the Board in February 2019 and January 2020 where it was remanded for further development. In February 2019 the Board remanded the claim in order to obtain VA records from September 2010 relating to the Veteran’s left eye surgery and a list of equipment used during the surgery. Following the February 2019 Board remand, a request was made in June 2019 to the Director of the Columbia VAMC to provide a list of all equipment used during the Veteran’s cataract surgery. The Board noted that although duplicate records which were already associated with the claims file pertaining to the Veteran’s September 1, 2010 cataract surgery were provided, the Director of the Columbia VAMC failed to provide a list of the equipment used during the surgery. In January 2020, the Board remanded the matter again, as the information regarding the equipment used in the Veteran’s surgery had still not been provided. In August 2020 and September 2020 another request was sent to the Director of Wm. Jennings Bryan Dorn VAMC requesting a list of all the equipment used during the Veteran’s surgery. The Veteran was notified of this follow up request in September 2020. On September 21, 2020 notice was received from the Williams Jennings Bryan Dorn VAMC that a list of equipment used for this surgery is not available. On September 23, 2020 the Veteran was notified by correspondence that it had been determined that these records cannot be located and therefore are unavailable for review. The letter notes all efforts to obtain the needed information have been exhausted, and based on these facts it has been determined that further attempts to obtain the records would be futile. The Veteran was notified that his file contains documentation of the written and telephonic efforts made to obtain these records. The Board finds VA has fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has made sufficient efforts to obtain records corresponding to the equipment used in the Veteran’s surgery. Despite VA efforts to obtain the records, the list of equipment used in the surgery is unavailable and further attempts to find such records would be futile. See September 23, 2020 Correspondence. Entitlement to compensation under 38 U.S.C. § 1151 for left eye cataract status post-surgery and complicated by vitreous hemorrhage and resolved glaucoma is denied. The Veteran contends that a left eye disability is due to VA negligence when performing his cataract surgery in September 2010. In August 2010 the Veteran was evaluated and he noted his slowly developing cataract suddenly became opaque. It was noted the Veteran had a history of trauma where he was hit above “OS with a hammer” many years ago, had reconstruction, but no longer has lacrimal drainage system OS. See August 5, 2010 Ophthalmology History & Physical- CAPRI. On September 1, 2010, the Veteran underwent cataract surgery on the left eye at the VAMC. There was a complication with the Veteran’s surgery which involved a capsular rupture, which caused pieces of the phakic nuclear lens to fall posteriorly into the vitreous. The Veteran was subsequently referred to Dr. W. a retina specialist where the Veteran had to have two more pars plana vitrectomy. In his second surgery there was a complication by intraocular hemorrhage due to the inadvertent cutting of a prepapillary venous loop. His third and final surgery was done to remove the intraocular blood to control his pressure, relieve his pain, and improve his visual acuity. See September 20, 2010 Operative Report. The Veteran testified at his March 23, 2016 Regional Office hearing that he is now legally blind in the left eye, has fallen and is now unable to work because of the surgery. The Veteran maintains that he has had three surgeries on his left eye, and that the VA “messed up a nerve.” The Veteran states that he still has complications with his eye and that there are fragments remaining in his eye. In the hearing, the Veteran’s witness testified that he took the Veteran to Dr. W., and that he heard Dr. W. tell the Veteran the VA did not have the right equipment to perform this operation, where they only had one laser. The witness further testified Dr. W. told the Veteran this type of operation should have had three lasers to do the surgery. See March 23, 2016 Hearing Testimony. In his August 2012 Form 9, the Veteran stated that to date his eyes have not gotten any better and that he is still having the same problems he had when Dorn VAMC did the first surgery. He further states that he feels the VA is responsible for anything that has happened during the series of surgeries that was performed on his eye. He notes his left eye is still running and he hasn’t seen any blood since his last surgery, however it still hurts and becomes blurry most of the time where he has to stop what he is doing and clean his eye. The Veteran states that if he closes his right eye, he is unable to see out of his left eye. Id. The Board further notes the attorney’s arguments that the Veteran is entitled to reasonable doubt in his favor if the VA cannot produce evidence to rebut the allegation that the proper equipment was not used during the Veteran’s September 1, 2010 surgery. See October 2019 Third Party Correspondence. The attorney has previously argued that the Veteran’s blindness in the left eye is not a result of continuance or natural progression but that of negligence in a surgical procedure. The attorney states that it is already established that the Veteran’s poor vision in his left eye is due to a vitreous hemorrhage. He further notes that vitreous hemorrhages have an incident rate of 7 cases per 100,000, and that vitreous hemorrhage is among the most common complications associated with cataract surgery. The attorney states the small incidence rate of vitreous hemorrhage indicates that complications with cataract surgery are extremely uncommon. The attorney further states the small incidence rate coupled with the operative notes in which Dr. W. admits to severing the pre-papillary loop causing profuse bleeding resulting in the hemorrhage, show that the Veteran’s deteriorated eyesight is due to operative negligence rather than the natural progression of his cataract. See April 2017 Appellate Brief. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death 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 if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The question for the Board is whether it is at least as likely as not that the Veteran sustained additional disability that was not the result of his/her willful misconduct; and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished under the law administered by VA; and the proximate cause of the disability or death was either (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. In this case, the Board finds that while the Veteran alleges he has additional disability due to the VA cataract surgery, the preponderance of the evidence weighs against finding that this was proximately caused by either (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. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. It is not materially in dispute that the Veteran had complications in his cataract surgeries. The September 1, 2010 Operative Report shows during his first cataract surgery a large fragment fell to the back of the eye. It notes the Veteran had some discomfort and therefore the eye was closed. A vitrectomy was done. It was noted the patient tolerated the procedure well and left the OR in good condition. Follow-up was discussed with the Veteran that he would need a second procedure for cortical/possible nuclear clean-up along with lens placement. Later, on September 20, 2010 the Veteran was referred to Dr. W. for a left pars plana vitrectomy with endolaser photocoagulation and injection of intravitreal antibiotics. Dr. W. notes the Veteran underwent a complicated cataract extraction at the VA Hospital several weeks ago. He notes the lens was largely dislocated into the posterior segment and the Veteran was referred to him for removal of the cataract and placement of a secondary anterior chamber lens. Dr. W. notes that his surgery with the Veteran was complicated by intraocular hemorrhage due to the inadvertent cutting of a prepapillary venous loop. Dr. W. notes the loop was diathermized and hemostasis was achieved, and at the end of the surgery, the eye was clear. He notes however, that on the first postoperative day, the Veteran had hyphema and dense intraocular hemorrhage, presumably due to rebleeding from the prepapillary venous loop, therefore he underwent a third procedure in September 2010. In April 2012, the Veteran underwent a VA examination where the examiner reviewed the Veteran’s surgical history and stated it appears the patient likely had a traumatic cataract, considering the young age of patient to have a white cataract just in one yet. These such cataracts are much higher risk complication and capsular rupture due to unstability of lens itself. The examiner notes as a result, complication did occur during cataract surgery. The examiner notes the appropriate measures were done including sending the patient out to a retina specialist for pars plana vitrectomy as well as lensectomy. The examiner stated in his professional opinion the Veteran’s current level of vision is 20/80, and that this likely may have been impacted by the cataract surgery as well as subsequent surgery. The examiner notes it is as least as likely as not that the cataract surgery in and of itself may have caused damage to the patient’s vision, however, it is in my opinion that the patient likely had some sort of traumatic optic neuropathy, which led to the cataract formation and subsequent vision. The examiner further noted the patient does currently have 20/80 vision, which is much better than the previous 20 hand motion vision that the patient had prior to cataract surgery. In September 4, 2014 the Veteran underwent a VA examination where the examiner found the Veteran’s current left eye visual acuity is not a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing hospital care, medical treatment, surgical treatment or examination. The examiner noted the Veteran had previous trauma to the eye and a dense white mature cataract of the left eye. The examiner opined the previous trauma and nature of the lens increased the known risks of surgery. The examiner found the surgical procedure was handled appropriately and post-operative medication and treatment was also appropriate. The examiner further noted the proper care, treatment and follow up of his complication was performed correctly by the VA, also noting the Veteran was scheduled and operated on by a retinal specialist for the second procedure within an appropriate time frame. The examiner noted the VA provided the degree of care that would be expected of a reasonable health care provider. The Board notes the surgery was completed with 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). The informed consent document is of record, and it shows that the Veteran was provided with the reasons for the procedure, a brief description, and the potential benefits of the procedure. It also listed the known risks and side effects, which included risk of dislocated lens material, bleeding and/or infection, red or painful eye, need for additional treatment and/or surgery, glaucoma/high eye pressure, changes in vision, double vision, blurring, swelling, infection or inflammation, loss of eye and loss of vision or blindness. It further states that this information was “discussed with [the Veteran] in language that s/he could understand, including the nature and indications, benefits, risks, side effects, and likelihood of success of each alternative.” Finally, it states that the Veteran demonstrated comprehension of the discussion, was given the opportunity to ask questions, and that the Veteran was not induced or coerced into consenting. Here, the Board notes the Veteran has not indicated that he did not have decision-making capacity, was unable to communicate decisions concerning his health care, was prevented from reading the informed consent document, or was otherwise legally incapable of understanding the informed consent document. Accordingly, the Board finds that the surgery was conducted with the Veteran’s informed consent under the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1); McNair, 25 Vet. App. 98. Further, the preponderance of the evidence is against a finding that the proximate cause of the Veteran’s additional disability was an event not reasonably foreseeable. This is in each claim to be determined based on what 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). The record shows that the Veteran’s additional disability was reasonably foreseeable. First, the informed consent document and additional documentation on the August 5, 2010 visit shows the Veteran was made aware that he was at higher risk of complications due to his previous trauma and dense mature lens. It was explained to the Veteran that his visual outcome is unknown due to the previous trauma and inability to see any detail of the retina. The consent itself identified the potential consequences to include the exact complications that arose swelling, dislocated lens, inflammation, pain, and loss of vision or blindness. The September 2014 VA examiner opined that the complication that occurred at the time of the initial surgery is a known potential, ordinary risk of cataract surgery. The examiner notes it was also known that the Veteran was at increase intraoperative risk due to previous trauma and development of a traumatic mature cataract. The examiner notes the risk of dislocated lens material, the need for further procedures, glaucoma/high eye pressure are all especially included in the consent document signed by the patient and the increased risk for this particular patient was also discussed and documented in the patients record. The Board notes the Veteran’s statements that Dr. W. told him the VA used the wrong equipment in his surgery, and his witness’ statements that Dr. W. told the Veteran the VA did not have the right equipment to do his operation. The Board notes the details of their statements allege that Dr. W., as medical personnel told the Veteran, “I’m sorry son, if I could have gotten you before they butchered your eye and you would have been home in two to three days.” See March 23, 2016 Hearing Testimony. The Court has held that lay evidence regarding what a medical professional told a lay person was specifically listed as an example of competent lay testimony in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s competence to report what medical personnel told him is not in dispute. See also 38 C.F.R. § 3.159(a)(2). However, the Board must then determine if these lay assertions are credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The Board finds the Veteran’s lay assertions regarding his eye being butchered and the wrong equipment being used are not credible or probative. Dr. W.’s September 1, 2010 Operative Report and November 21, 2010 letter is included in the file and it does not reflect any comments that the VA was negligent or used the wrong equipment in the Veteran’s surgery. In this regard, the Board may weigh a claimant’s lay statements against the absence of contemporary medical evidence. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buchanan v. Nicholson, 451 F.3d 1331, 36-37 (Fed. Cir. 2006). However, it must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (internal citations omitted). For example, a foundation may be laid by establishing a medical reason for why a doctor would make a particular entry in regular treatment records. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). While cognizant that the absence of contemporaneous records is not an absolute bar to a Veteran’s ability to prove his claim, Dr. W.’s Operative Report and November 21, 2010 letter in the present case does not support claims that Dr. W. stated VA performed the Veteran’s surgery in a negligent manner or that the VA actually used improper equipment. In fact, these records provide evidence against a claim of negligence. The Board finds these are the types of records which would have recorded concerns with the Veteran’s first surgery by the VA or the use of the wrong equipment if it was the case as the Veteran alleges. Based on Dr. W.’s Operative Report and letter, the Veteran and his witness’ lay statements regarding the VA’s negligence and use of the wrong equipment are not supported by the findings noted in the Operative Reports. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010). The credibility of a witness can be impeached by a showing inconsistent statements or impairment in memory, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Consequently, the Board gives more probative weight to the competent medical evidence. In reviewing evidence favorable to the Veteran, the Board notes in July 2011, Dr. B., the attending surgeon in the Veteran’s first surgery with VA wrote a statement in support of the Veteran. He states the Veteran had a complication during surgery that led to poor vision. He further notes the Veteran is unable to work in his profession as a result, and asked that his claim be supported as his vision loss is real and significant. The Board notes this letter is written by the Veteran’s surgeon, however affords it less probative value as it fails to discuss whether the Veteran’s poor vision is a qualifying additional disability caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and the poor vision was due 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, or an event not reasonably foreseeable. 38 U.S.C. § 1151. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.