Citation Nr: 21013495 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-00 302 DATE: March 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as legal blindness, resulting from glaucoma surgery is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s decreased vision, claimed as legal blindness, is an additional disability. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for decreased vision, claimed as legal blindness, are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to September 1970. In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Videoconference Hearing. A transcript of that proceeding has been prepared and is associated with the file. This appeal was last before the Board in November 2018 when it was remanded to obtain a medical opinion and informed consent forms signed by the Veteran. These actions have been completed and the appeal is now ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability, claimed as legal blindness, resulting from glaucoma surgery The Veteran testified that he noticed his eyesight was getting worse in his “bad eye...my right eye,” and was told that he had glaucoma and would need surgery. He testified that he was told his eyesight “won’t get any better but it won’t get any worse.” He further testified that his eyesight “seemed to deteriorate within, like I said, a couple months,” and concluded that he would not have had the glaucoma surgery if he knew the risk factors. A veteran who develops disability resulting from medical care provided by VA is entitled to compensation under 38 U.S.C. § 1151 for the additional disability in the same manner as if such additional disability were service connected. The additional disability must have been proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing 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). When a veteran’s claim for benefits under section 1151 was filed after October 1, 1997, as here, the current version of the statute and its implementing regulation apply. This means that, aside from considering the claim under section 1151, the Board must consider 38 C.F.R. § 3.361 as the implementing regulation, rather than § 3.358. For entitlement to compensation under section 1151, there must be evidence of additional disability. 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 medical care upon which the claim is based, to the veteran’s condition after such care has stopped. The additional disability must not be the result of a veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). 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, medical care furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care by VA and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical care 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). 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. Additional disability caused by a veteran’s failure to follow properly given medical instructions is not caused by VA care or treatment. 38 C.F.R. § 3.361(c)(3). The proximate cause of the additional 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 care or treatment; 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 medical care was the proximate cause of a veteran’s additional disability, it must be shown that the treatment caused the additional disability; 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 care or treatment 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). Whether the proximate cause of a veteran’s additional disability 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 the 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 (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As seen in the law and regulations cited above, the cornerstone of a successful 1151 claim is the presence of an additional disability. For the reasons shown below, the Board finds that the Veteran does not have an additional disability as required under 38 C.F.R. § 3.361(b). Turning to the probative medical evidence of record, the Veteran had a Trabeculectomy (Trab) with mitomycin-c (MMC) procedure on his right eye, hereinafter referred to as glaucoma surgery, on December 20, 2002. Under Indications for Operation, the physician noted, “53-year-old man who presented recently with advanced open-angle glaucoma, both eyes. Cup-to-disk ration of 0.95 with markedly restricted visual fields. Intraocular pressure … in the range of 24-30. During the informed consent discussion, it was explained repeatedly to the patient, that the goal of the surgery is to reduce his intraocular pressure, not to restore vision that has been lost.” After the procedure was completed, the surgical note stated that the Veteran was successfully extubated in the operating suite and returned to the recovery room in good condition. The next day, the Ophthalmology Clinic outpatient note reported that the Veteran’s right eye procedure was “Uncomplicated. Slept well last night, no complaints.” The Veteran was instructed to return to the clinic in one week for a recheck, sooner if he experienced redness, pain or other worsening symptoms. On December 30, the Veteran returned to the VA Ophthalmology Clinic. The note described the Veteran as status post glaucoma surgery, which was uncomplicated, and that the Veteran had “no complaints, doing well.” The physician examined the Veteran and noted, “S/P Trab with MMC x 2 minutes OD 12/20/02 for Advanced OAG [Open-Angle Glaucoma]. IOP [Intraocular pressure] excellent, bleb well formed. Resolving hyphema. Vision stable.” The Veteran was again instructed to return in one week for a recheck, sooner if he experienced redness, pain or other worsening symptoms. On January 9, 2003, the Veteran returned to the Ophthalmology Clinic for his recheck. His procedure was again described as uncomplicated and the Veteran was described as having no complaints and doing well. The physician examined the Veteran and noted, “S/P Trab with MMC x 2 minutes OD 12/20/02 for Advanced OAG [Open-Angle Glaucoma]. IOP [Intraocular pressure] excellent, bleb well formed. Vision improving, hyphema resolved.” The Veteran was again instructed to return in one week for a recheck, sooner if he experienced redness, pain or other worsening symptoms. On January 23, 2003, the Veteran returned to the Ophthalmology Clinic for another recheck. The same description of the uncomplicated procedure and the Veteran having no complaints and doing well was noted. The physician examined the Veteran and noted, “S/P Trab with MMC x 2 minutes OD 12/20/02 for Advanced OAG [Open-Angle Glaucoma]. IOP excellent, bleb well formed. Vision back to baseline.” The Veteran was instructed to return to the clinic in one month, sooner if he experienced redness, pain or other worsening symptoms. In that same appointment, the physician recommended that the Veteran’s left eye required the same Trabeculectomy procedure, and wrote, “needs sooner rather than later.” On February 21, 2003, the Veteran had glaucoma surgery on his left eye. Under Indications for Operation, the physician noted, “54-year-old male with advanced glaucoma as evidenced on visual field and optic nerve state.” The surgical note also reported that informed consent was obtained and that upon completion of the procedure, the Veteran was taken to the recovery room in good condition. The following day, February 22, 2003, the Veteran was assessed with, “OAG advanced OU [both eyes]. S/P trab ou (OD [right eye] 12/02, OS [left eye] 2/03) – doing well.” On February 27, 2003 the Veteran attended his first week recheck. It was noted that the Veteran had “no complaints.” The assessment noted, “OAG advanced OU [both eyes]. S/P trab ou (OD [right eye] 12/02, OS [left eye] 2/03) – doing well. Watch OS carefully – bleb low and could scar down.” The Veteran was instructed to massage the bleb twice a day, a demonstration of which was done in the clinic On March 3, 2003, the Veteran returned to the Ophthalmology Clinic for his recheck appointment. The Veteran was described as having, “No complaints, no eye pain/pressure. Pt. has been applying pressure to eye at night.” The same assessment and instructions were provided to the Veteran, with direction to return in two weeks for another recheck. On March 7, 2003, the Veteran returned to the Clinic complaining that last night after his shower, his left eye vision was blurry/steamy and it was fine before the shower. He related that his vison is slowly getting better now. Upon examination, the physician noted that, “Cloudy vision OS may have been 2ndary to release of RBC in AC.” The Veteran’s 3/13/03 appointment was noted. On March 13, 2003, the Veteran attended his left eye third week recheck. The outpatient note reported, “Pt says vision lately has been brighter, especially in the morning. Pt is massaging eye only 1 – 2 seconds BID.” The Veteran was assessed as, “AG advanced OU. S/P trab OU (OD 12/02, OS 2/03) - IOP reduces easily with massage. Watch OS carefully - bleb low and could scar down.” The Veteran was instructed “to massage bleb [twice a day], demonstrated in clinic, pt told he should massage eyeball 10-20 seconds, rather than 1-2 sec.” The Veteran had another recheck appointment on March 27, 2003. The physician noted that the Veteran’s left eye was “good today” and required careful watching as, “bleb low and could scar down.” The Veteran stated that he” would like refraction at next visit, if atropine has worn off by then.” On April 10, 2003, the Veteran returned to the Ophthalmology Clinic for recheck and refraction. The physician noted that, “refraction given to pt, explained that not much change in prescription, but pt interested in bifocals.” The Veteran was instructed to return in two to three weeks. On May 15, 2003, the Veteran returned for a recheck. The note reported, “Pt is NOT massaging eye…Pt feels like vision slightly blurry.” The Veteran was examined, the left eye bleb remained a concern, and the Veteran was instructed to massage it twice a day. He was instructed to return in one month, sooner if he experienced any symptoms. On July 1, 2003, the Veteran returned to the Ophthalmology Clinic for a recheck. He reported that “he stopped drops for ‘awhile.’” His left eye IOP was reported as good, and the Veteran was instructed to return to the clinic in one month, sooner if he experienced any symptoms. On August 5, 2003, the Veteran reported that he had stopped the eyedrops and was not massaging his eye. He reported that he “feels like vision is slightly blurry.” The Veteran’s left eye IOP was assessed as good and the physician repeated the caution regarding the bleb and scarring. The same information was seen in a September 9, 2003 treatment note. In November 2003 the Veteran returned to the Ophthalmology Clinic for a follow up appointment and was described as having “no new complaints.” Once again, he was assessed with advanced Open-Angle Glaucoma in both eyes and both of his glaucoma surgeries were noted. The physician concluded that his intraocular pressure (IOP) “continues to be good.” He was instructed to return to the clinic in four months, or sooner if he experienced any symptoms. In March 2004, the Veteran was seen in the Ophthalmology Clinic. He was assessed with Open-Angle Glaucoma in both eyes, the left eye greater than the right eye. It was noted that his intraocular pressure “continues to be good.” He was instructed to return to the clinic in two months for another checkup. In May 2004, the Veteran had a follow up appointment and the physician noted that the intraocular pressures were “stable and as low as they can be.” He was instructed to return to the clinic in four months for another checkup. In October 2004, the Veteran returned to the Ophthalmology Clinic for a final recheck regarding his glaucoma surgeries. His chief complaint was noted as seeking refraction. His history noted “no visual complaints.” He was assessed with “anisometropia/myopia/astigmatism/presbyopia.” His best corrected visual acuity (BCVA) was reported as 2/40 in the left eye and 20/200 in the right eye. He was assessed with primary open angle glaucoma (POAG) and status post glaucoma surgery in both eyes, and bleb raised intact in both eyes. He had followup appointments in February 2005, and August 2005; no vision complaints were reported by the Veteran. In February 2006, the Veteran was examined in the Ophthalmology Clinic. He was assessed as Open-Angle Glaucoma status post Trabeculectomy with marked disc damage and HVF [Humphrey Visual Field] loss in both eyes. His intraocular pressure was stable. Cataracts both eyes. In March 2006, the Veteran had an Optometry examination. His subjective complaint was reported as, “decreased distance vision, left eye>right eye, gradual over the last year, constant.” His visual acuity was reported as 20/80 for the right eye and 20/30+2 in the left eye. The Veteran submitted his 1151claim in August 2011, stating that he had a “glaucoma operation on both eyes, one of which now I can’t see out of period. Before operation, I could still see with bad eye. To my knowledge, this result was not mentioned as one of the risks involved with the operation.” In conjunction with VA’s duty to assist, the Board sought a medical opinion regarding the Veteran’s assertion that his decreased vision was due to the glaucoma surgeries provided by VA. The initial opinion in May 2013 stated that the examiner could not find an informed consent form in the file, and the Board remanded to obtain those records and another medical opinion regarding the Veteran’s assertions. However, the examiner provided a reasoned medical opinion in an Addendum, wherein he stated, “I have read the operation reports, as well as some of the pre-operation and postoperative notes and I see no aberrations from good medical care. Also looking at the pressures postoperatively from 2002 up to 2012 I see no eye numbers, that is most of the numbers are in the low teens and this is on no medication whatsoever. A note dated October 19, 2012 by a Dr. Yu states that there is an island of vision in the left eye and no recent fields on the right. The last field on the right was February 22, 2005 as the patient refuses for the examination of his eye. The pressure on October 19 was 10 and 12, which is quite respectable. A note from the doctor explained to the patient that glaucoma is a progressive disease and surgery does not cure it, but usually, but not always slows down its progression. In support of the fact that the surgery itself did not cause the poor vision, there is a note on April 2003 stating that the vision in the right eye was 20/30 and the vision in the left eye was 20/20. Since this is 5 or 6 months after the surgery on the right eye, if the surgery on the right eye had caused the visual problem it would have shown up by April of 2003. So the surgery is not the problem.” In February 2020, a medical opinion was provided regarding the Veteran’s claim. After a thorough review of the Veteran’s medical records, the physician opined that the Veteran’s visual acuity, described as 20/50 in the left eye and hand motion in the right eye, was not an additional defect as “the claimant’s status of legal blindness is based on visual field defect and not on acuity.” The physician noted that although acuity decreased, there was no supporting evidence that the Veteran’s “already diminished visual field defects actually got worse.” He concluded that, “After a thorough review of records it is my opinion the claimant’s [legal] blindness is not an additional disability.” In other words, the status of the Veteran’s eyesight immediately prior to his glaucoma surgeries and immediately after his glaucoma surgeries did not show an additional defect, claimed as legal blindness. The examiner further opined that the records also indicated that, “Patient was informed the goal of surgery was to lower pressure and not restore vision. The examiner noted that "Informed consent was obtained;” the Board has also identified the informed consent forms signed by the Veteran. The physician opined that, “Surgery was performed on right eye on 12-20-02 and left eye on 2-21-03. Records document the procedures were unremarkable with no complications noted. The fact that the claimant’s vision continued to deteriorate is not the result of the surgical procedure to slow the progressive loss of vision by lowering eye pressure but rather more likely than not the nature of glaucoma. The claimant’s glaucoma did not respond well with all management modalities.” He concluded that the Veteran’s legal blindness, “should be attributed to the claimant’s eye disease [glaucoma] and not the type of risk associated with surgery.” As shown above, for entitlement to compensation under section 1151, there must be evidence of additional disability. 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 medical care upon which the claim is based, to the veteran’s condition after such care has stopped. The additional disability must not be the result of a veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Here, the Veteran’s eyesight immediately after his glaucoma surgeries showed no additional disability; the probative medical evidence of record outlined above shows immediate improvement in the Veteran’s intraocular pressure and his vision was no worse post the December 2002 and February 2003 surgeries, as described by the VA examiner: “the vision in the right eye was 20/30 and the vision in the left eye was 20/20. Since this is 5 or 6 months after the surgery on the right eye, if the surgery on the right eye had caused the visual problem it would have shown up by April of 2003.” In addition, the Board observes that the first instance of the Veteran complaining of decreased distance vision was in March 2006. Even taking into consideration the Veteran’s statement that he noticed decreased vision for the past year, the earliest date for decreased vision would be March 2005, fully two years after the last glaucoma surgery. The Board recognizes that the Veteran believes and testified that the glaucoma surgeries he received through the VA Ophthalmology Clinic contributed to a worsening of his eyesight. However, he lacks the medical expertise to provide a competent opinion on medical matters, including the progressive nature of his diagnosed glaucoma. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Rather, the VA opinions and treatment notes are more probative evidence in this case. Importantly, these opinions were based upon a detailed assessment of the Veteran’s current disorders, their natural and expected progression, and the observable impact of his VA treatment. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the factually accurate, fully articulated, sound reasoning for the conclusion). There is no indication that the examiners were not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing their opinions; rather, their assessments addressed treatment notes over the span of several years, to include the surgery notes for the Veteran’s glaucoma surgeries. Moreover, the examiners possess the requisite expertise to render competent medical opinions regarding the progression of the Veteran’s glaucoma, and had sufficient facts and data on which to base their conclusions. Thus, it is found that any worsening of the Veteran’s eyesight was due to the natural progression of his diagnosed serious glaucoma and was neither caused by nor aggravated by VA treatment. Accordingly, it is not found that he demonstrates additional disabilities, to include loss of vision, claimed as legal blindness, as required under the applicable regulations. Absent a finding of additional disabilities, inquiry into the negligence requirement is hereby rendered moot. (Continued on the next page)   Based on the foregoing, the Board finds that the Veteran did not sustain additional disabilities for which § 1151 benefits are warranted. Therefore, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt rule is not for application, and entitlement to compensation under the provisions of 38 U.S.C. § 1151 for loss of vision, claimed as legal blindness, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.