Citation Nr: 21015242 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-24 790 DATE: March 17, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left eye vision loss due to glaucoma surgery is denied. FINDING OF FACT The Veteran’s referral to a non-VA medical provider by VA for left eye glaucoma surgery on January 8, 2009 was not the proximate cause of additional disability of vision loss, as this event was reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for left eye vision loss due to glaucoma surgery are not met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1954 to October 1958. In January 2021, he testified at a videoconference hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Compensation Benefits under 38 U.S.C. § 1151 The Veteran asserts that he is entitled to compensation under § 1151 for vision loss of the left eye as a result of glaucoma surgery performed by a non-VA provider who was authorized by the VA to provide such treatment. He reports that following his left eye surgery, the pressure was not reduced, and the private doctor cut the eye with a laser in an attempt to relieve it. The Veteran states the laser cut was too large and the doctor was unable to stop the release of fluid, so a temporary contact lens was placed over the left eye. The Veteran developed double vision and later worsening left eye vision. He now believes that the private surgical treatment caused significant loss of vision in his left eye. See VA Form 21-4138, dated October 18, 2017. A veteran who suffers “qualifying additional disability” resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected, if the additional disability was not the result of willful misconduct and was proximately caused by (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when such care or treatment caused the veteran’s additional disability and VA either “failed to exercise the degree of care that would be expected of a reasonable health care provider” or furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event does not have to be “completely unforeseeable or unimaginable” but it 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)(2); see Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). A claimant may also succeed on a § 1151 claim on the basis that VA made a negligent referral to a private provider if the additional disability that was proximately caused by the private provider (in this case, the Veteran’s loss of vision) was an event not reasonably foreseeable. Ollis v. Shulkin, 857 F.3d 1338, 1346 (2017); see 38 U.S.C. § 1151 (a)(1)(B). In January 2009, the Casa Grande VA Clinic referred the Veteran for fee basis ophthalmology consultation with a private medical provider for glaucoma surgery. The clinical assessment was mild refractive error and advanced glaucoma that had been medically treated since 2003. It was noted that the Veteran had reached maximum medical therapy for glaucoma and trabeculectomy surgery was recommended. On February 10, 2009 the Veteran underwent trabeculectomy surgery with mitomycin-C of right eye and on April 14, 2009 the same surgery for the left eye. There were no complications and the Veteran was noted to be in stable condition. Prior to both surgeries, the Veteran signed a consent form which pointed out numerous potential complications that could occur weeks, months or even years later, including abnormal collection of eye fluid necessitating a second operation and worsening or even total loss of vision. See clinical records from Camp Lowe Surgery Center. Post-operative follow-up notes for the left eye indicate that the day following the surgery the Veteran had no pain or discomfort. On April 22, 2009, one week after the surgery, the examiner noted the Veteran’s reports of a foreign body sensation in the left eye and that visual acuity was not as clear, consistent with “gtts”. A two-week follow up on May 6, 2009 showed the Veteran reported doing well but his visual acuity was still weak. On May 21, 2009 the Veteran underwent suture lysis for increased intraocular pressure of the left eye. A post-operative report, the day after that procedure, noted a small bleb leak of the left eye and a bandaged contact lens was placed on the left eye several days later. On June 18, 2009, the Veteran underwent revision of trabeculectomy, left eye. He tolerated the procedure well and was transferred to recovery in satisfactory condition. During a May 2010, ophthalmology consult the Veteran was diagnosed with failed trabeculectomy left eye and on June 2, 2010 a Baerveldt glaucoma shunt was placed on the left eye. See clinical records from Arizona Eye Consultants, Camp Lowe Surgery Center, and J.M. Levine, M.D., dated February to May 2009. The AOJ obtained a VA medical opinion in December 2018. The VA optometrist concluded that VA medical doctors were not negligent (fault or carelessness) in recommending glaucoma surgery procedure for the left eye. She explained that the VA medical treatment was not the cause of the Veteran utilizing the private practitioner (Dr. Levine) as the glaucoma surgery was necessary after maximum medical treatment was no longer effective, and the VA did not have a glaucoma specialist on staff. She also concluded there was not an event that was not reasonably foreseeable (accident) as a result of the left eye glaucoma surgery as bleb leak is a known complication. The VA optometrist also concluded that VA medical treatment did not cause the Veteran to have the procedure itself, since glaucoma surgery is the standard of care when maximum medical therapy is no effective any longer. She noted that the Veteran’s disability was, at best, a remote consequence of – and not caused by – VA’s conduct. In other words, the conduct of the VA’s physician is simply too remote from the Veteran’s disability to be considered its cause. Based on the foregoing, the Board concludes that entitlement to compensation under § 1151 is not warranted. The Veteran failed to demonstrate a proximate cause between VA medical care and his worsening left eye vision following the April 2009 glaucoma surgery that took place at a non-VA facility. None the medical evidence tends to support a finding that the left eye vision loss is the result of an event that was not reasonably foreseeable. The Board finds most probative the December 2018 VA opinion finding that VA physicians were not negligent in recommending glaucoma since the maximum medical treatment the Veteran was receiving was no longer effective. With respect to foreseeability, the examiner pointed out bleb leak is a known complication of glaucoma surgery. The VA opinion was based on a review of the Veteran’s record and is accompanied by a sufficient explanation. Moreover, the Veteran was provided with and signed a consent form advising him that the surgery could result in total loss of vision due to potential complications. For these reasons, the Board finds that the weight of the evidence is against the Veteran's appeal for compensation under the provisions of 38 U.S.C. § 1151 and the claim must be denied. 38 U.S.C. § 5107 (b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.