Citation Nr: 21010419 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-12 438 DATE: February 24, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left eye injury is denied. FINDING OF FACT Additional disability manifested as a left eye injury/blindness was not the result of carelessness, negligence, lack of proper skill, error in judgment or other 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 pursuant to the provisions of 38 U.S.C. § 1151 for additional disability claimed as a left eye injury due to care received by VA in December 2009 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 FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to May 1968. Subsequent to his service he changed his name. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left eye injury The Veteran requests compensation under 38 U.S.C. § 1151 for additional disability resulting from a December 1, 2009 surgery at a VA medical center to address primary open-angle glaucoma of the left eye. Specifically, the Veteran asserts that the December 2009 surgery ultimately led to blindness and later removal of the left eye. In a May 2018 statement he indicates that the surgery was performed by a resident without the necessary skill to perform such a procedure, and more recently asserts that the additional disability was not reasonably foreseeable. The Veteran notes a followup January 2010 VA surgery but does not directly assert that additional disability is due to this procedure. VA treatment records confirm both the December 2009 and January 2010 procedures. In pertinent part, section 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service- connected. A disability or death is a qualifying additional disability 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, and (2) 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. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361 (b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died 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). Additional disability or death 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). The proximate cause of disability or death is the action or event that directly caused the disability or death, 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 hospital care, medical or surgical treatment, or examination proximately caused 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 (as explained in paragraph (c) of this section); 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. 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. 38 C.F.R. § 3.361 (d). 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 § 17.32 of this chapter. In order for the appellant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the claimant, the claim for compensation under 38 U.S.C. § 1151 must be denied. A December 1, 2009 VA operation report indicates a preoperative diagnosis of primary open-angle glaucoma, left eye, uncontrolled on maximal medical therapy. The postoperative diagnosis was identical. The procedure was a trabeculectomy with Mitomycin C left eye. Trabeculectomy was offered to help control pressure in the eye. The risks and benefits were explained to the Veteran and consent was obtained. There were no complications or blood loss noted. The attending surgeon was present for the entire procedure. A January 26, 2010 VA operation report indicates preoperative diagnoses of choroidal effusion, shallow anterior chamber, and status post trabeculectomy with Mitomycin C, left eye. Persistent choroidal effusions and shallow anterior chamber were noted in the aftermath of the December 1, 2009 procedure. The postoperative diagnoses were identical. The procedures performed were drainage of the choroidal effusions and reformation of the anterior chamber. The risks and benefits were explained to the Veteran and consent was obtained. There were no complications noted and blood loss was less than 1 mL. The attending surgeon was present for the entire procedure. VA obtained an October 2018 medical opinion from a VA ophthalmologist. The examiner reviewed the claims file, including relevant treatment records and the Veteran’s assertions. The examiner notes that the Veteran’s vision did not return to baseline after the glaucoma surgery, but explains that “[w]hen patients require glaucoma surgery, especially one as strong as this one, they are already on a course towards blindness” and that a risk and common result is that vision becomes blurrier after glaucoma surgery. This is accepted as a reasonable result as the procedure may ultimately delay total blindness for several years. The examiner explained that the “surgery itself is a trauma, and in such sick eyes, the eye has difficulty recovering. The extent of this is variable, depending on the eye, and could mean the vision recovers anywhere between fully, to not at all (blindness). The more advanced the disease before surgery, the less the eye is likely to recover.” A review of the Veteran’s records indicate that the Veteran had advanced glaucoma with a guarded prognosis prior to surgery. The examiner explains that it is not surprising that the Veteran’s vision did not return after surgery and concludes that “[i]t is less likely as not that the claimed disability was caused or became worse as the result of the VA treatment.” The examiner further opines that it is less likely than not that the additional disability resulted from the VA personnel’s failure to follow the appropriate standard of care. A review of the record indicates that this is “highly unlikely” and that due to the Veteran’s advanced and uncontrolled glaucoma, the surgery was an appropriate action. The examiner next explains that it is less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. As the examiner previously explained, “loss of vision following glaucoma surgery is not unexpected.” Lastly, the examiner concluded that it is less likely than not that failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. This is “highly unlikely” as the patient had been diagnosed with glaucoma for decades (at least 35 years) and upon seeking treatment at VA he was seen by a glaucoma specialist in a timely manner who then recommended the surgery. The examiner does note that the record indicates the Veteran missed some visits during this period and there was a gap of 8 to 10 months between the time surgery was recommended and when it was scheduled. It is unclear why this delay occurred. There is no indication this was due to the fault of VA personnel. The Veteran submitted a June 2019 private medical opinion in support of his claim. The opinion was issued by a physician that according to his Curriculum Vitae is Board certified in internal medicine. The CV does not reference any specific ophthalmological training. The private physician details relevant treatment records, including the December 2009 surgery. Ultimately, the he concludes that the choroidal hemorrhage that occurred after the December 2009 surgery was an event that was not reasonably foreseeable after such a procedure. “Thus, the decision must be made that the loss of sight in [the Veteran’s] left eye, using reasonable medical judgment, is a consequence of the ophthalmologic management that he received at the” VA hospital. “To put it another way, it is as likely as not that the loss of vision in the left eye with an enucleation is a consequence of an event that was not reasonably foreseeable in terms of ophthalmologic interventions that [the Veteran] received in an attempt to treat the open-angle glaucoma and that cataract in the left eye.” The examiner provides no rationale to support his assertion that the Veteran’s loss of sight was not a foreseeable event. He does not discuss the risk factors associated with the surgery or explain what may be a reasonably foreseeable complication or event, or why the Veteran’s left eye disability was not reasonably foreseeable. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the October 2018 VA examiner’s opinion as highly probative medical evidence. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the June 2019 private opinion to be of significantly less probative value than the October 2018 VA medical opinion. The private physician provides no true rationale to support his assertion that the Veteran’s loss of sight after the December 2009 surgery was not a reasonably foreseeable event. Furthermore, the physician’s CV indicates that he is an internal medicine specialist and there is no record of ophthalmological training or expertise. Thus, a conclusory statement that the additional disability was not reasonably foreseeable without the support of a thorough rationale is of limited probative value particularly when considered in concert with the VA examiner’s ophthalmological expertise. The October 2018 VA examiner is an ophthalmologist and provided thorough rationales to support her assertions. In this instance, the Board finds the October 2018 VA opinion to be the most probative as it provided an unequivocal and detailed medical opinion supported by pertinent rationale based upon a review of the Veteran’s claims file. After a review of the medical and lay evidence of record, the Board finds that compensation pursuant to the provisions of 38 U.S.C. § 1151 is not warranted for the claimed additional disability of left eye injury or blindness. The Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the instant case, however, the Veteran does not have the medical expertise to provide an opinion regarding the cause of his left eye injury or blindness and whether it was caused by VA care and was due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA personnel, or due to an event not reasonably foreseeable. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). As a result, the Board must find the Veteran’s contentions to be outweighed by the competent medical evidence of record, specifically the October 2018 VA medical opinion. Here, there is evidence of additional disability in the form of left eye blindness in the aftermath of the December 2009 surgery at issue. However, the medical evidence is against the assertion that the proximate cause of such disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA personnel, or that it is due to an event not reasonably foreseeable. Conversely, the probative medical evidence of record indicates that VA personnel appropriately performed the December 2009 surgery in an effort to treat the Veteran’s advanced glaucoma, that qualified medical personnel performed the surgery competently, and that the resulting left eye blindness was an event that was reasonably foreseeable due to the advanced state of the Veteran’s disease and the risks of such surgery, which were fully and adequately explained to the Veteran prior to obtaining his informed consent. As such, compensation under section 1151 for the claimed left eye disability is not warranted. To the extent that the Veteran reported that the surgeon was unskilled. Such assertion is unsupported. There is no reliable evidence of additional disability due to lack of skill. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for compensation under 38 U.S.C. § 1151 for this claim must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.