Citation Nr: 21023232 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-06 319A DATE: April 20, 2021 ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for bilateral glaucoma (claimed as blindness). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for bilateral glaucoma (claimed as blindness) is denied. FINDINGS OF FACT A bilateral glaucoma disability following VA treatment and surgery 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 due to care received by VA. CONCLUSION OF LAW The criteria for compensation pursuant to the provisions of 38 U.S.C. § 1151 for a bilateral glaucoma disability 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 CONCLUSION The Veteran served on active duty in the Army from May 1968 to May 1970, with service in the Republic of Vietnam from October 1968 to July 1969. The Veteran was awarded the Combat Infantryman Badge and Purple Heart Medal, among other decorations. This case comes before the Board of Veterans’ Appeals (the Board) from March 2009 and May 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran had a hearing before the undersigned Veterans’ Law Judge (VLJ) in July 2016. A transcript of that proceeding has been associated with the claims file. This case was before the Board in November 2016, September 2017, and most recently in January 2020, where the matter was remanded for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to compensation under 38 U.S.C. § 1151 for bilateral glaucoma (claimed as blindness). The Veteran has claimed that he received negligent medical treatment from VA, which resulted in his eventual blindness in both eyes. See September 2008 Statement in Support of Claim. The Veteran was given a hearing in July 2016. During the hearing, the Veteran and his spouse testified that he has received all his eye treatments through the VA, and that despite those regular visits, “he couldn’t see but he was not diagnosed.” The Veteran’s spouse specifically argued that the VA “should have discovered it earlier.” Later during the hearing, the Veteran testified that perhaps the VA “didn’t do so bad on the operation for the glaucoma but they should have discovered it earlier … I don’t think it’s getting any better.” 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. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361 (d)(1). 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 § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that explaining the procedural history of the Veteran’s claim is helpful. To begin, the Board’s November 2016 remand directed the RO to request clarification from the Veteran regarding the surgeries that he contended resulted in his glaucoma under 38 U.S.C. § 1151, to obtain relevant pre-and follow-up treatment reports from surgeries identified by the Veteran as well as signed informed consent documents from the relevant surgeries, and to obtain an addendum opinion from a January 2013 clinician regarding the Veteran’s glaucoma. The RO sent the Veteran letters in November 2016 and January 2017 but at the time received no response regarding the unidentified surgeries that were the subject of his original claim; thus, no additional records were obtained. The RO obtained a VA opinion on February 27, 2017. After the opinion was obtained, the RO sent the clinician an addendum request asking that the clinician state that the VBMS electronic folder had been reviewed, and to provide comments based on the VBMS eFolder review. See February 27, 2017 email correspondence. In an addendum dated February 28, 2017, the VA clinician wrote that the VBMS folder had been reviewed but did not contain sufficient information to render an opinion. The clinician explained that the VistaWeb folder contained all of the ophthalmology progress notes needed to submit the requested opinion. As noted in the previous remand however, the record before the Board consists of the documents stored on VBMS and the Legacy Content Manager Documents (previously known as Virtual VA); the Board does not have the ability to access documents stored in the VistaWeb folder. Consequently, the Board was not able to properly evaluate the adequacy of the February 2017 opinion without those records. Thus, in September 2017, the Board directed the RO to upload the information that the clinician used to write their opinion from VistaWeb onto VBMS so it could be viewed by the Board. As the Board was remanding the matter in September 2017, it also saw fit to provide the Veteran with another opportunity to clarify which surgeries he asserts resulted in his glaucoma. The Veteran was informed however that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Since the September 2017 Board Remand, additional records were requested from the Veteran in December 2017, coupled with the relevant release forms for such records. A statement from February 2018 indicated that the Veteran had developed dementia, and that the Veteran’s spouse has been appointed his fiduciary. A Rating Decision from November 2018 proposed a finding of incompetency, and a Rating Decision from February 2019 found that the Veteran was not competent to handle the disbursement of funds. An additional letter was sent in August 2019 to the Veteran, repeating the original request for additional evidence, to which the Veteran did not respond. An SSOC from September 2019 continued to deny entitlement to compensation under 38 U.S.C. § 1151 for bilateral glaucoma (claimed as blindness) on that basis. Later that same month, the Veteran provided the required authorization to disclose medical information from hospitals which the Veteran claims have his additional records. The Veteran’s claim then returned to the Board but was remanded again in January 2020. The claim was remanded because the information uploaded was only from the year 2017, making it unlikely to be the same information that the February 2017 VA examiner based their opinion. If new records were associated with the claims file that were different than those available on VistaWeb, the RO was to forward the Veteran’s claims file to a specialist for a VA examination, so that an additional etiological opinion could be rendered regarding the Veteran’s claim of VA negligence. The claim has since returned to the Board. As an initial matter, the Board notes that the Veteran has now responded to the request for authorization for release of information. The RO has also associated the Veteran’s VAMC medical records with the claims file, to include that which was available via VistaWeb. Thus, the Board may now assess the adequacy of the February 2017 VA addendum opinion. The opinion was provided by Dr. K.H. who is listed as a clinical professor of ophthalmology. The examiner provided two opinions. First, they indicated that it was Less likely than not that the VA medical providers failed to timely diagnose and initiate glaucoma treatment in this Veteran. The medical record indicates that the Veteran was first seen in the New Orleans VAMC Ophthalmology Department on May 24, 2000. On that initial visit he was diagnosed with endstage glaucoma of the left eye and had only hand motion vision in the left eye with an intraocular pressure of 45. He was started on nearly maximum medical therapy consisting of three medication. Next, the VA ophthalmologist noted that It is also less likely than not that any of the surgeries performed by VA resulted in additional disability or blindness. The operative notes and press notes were reviewed and there was no evidence of carelessness or negligence in the procedures performed. In 2000 after the intraocular pressure of the let eye stabilized, the Veteran was advised to have a surgical procedure on the left eye in order to maintain what little vision remained. He refused to have the surgery. The veteran was lost to follow up after 2001 and did not return or use any treatment until 2005. Upon his return he was legally blind in both eyes from noncompliance and years of lack of treatment. Further treatment and surgery by the VA after 2005 were aimed at maintaining what little vision the Veteran had remaining. As such a negative etiological opinion was provided as to both questions. In following the remand directives, the Veteran has also scheduled for an additional VA examination since further VAMC records had been associated with the claims file, which were previously only available on VistaWeb. That VA examination occurred in September 2020. The Veteran was seen in person by a VA optometrist, and it is clear from the report provided that the Veteran’s claims file was reviewed. They noted the surgical procedures in the Evidence portion of the report, and that the Veteran was first officially diagnosed in the year 2000. They also indicated that the testimony and lay statements were reviewed, including that “it is [the Veteran’s] belief that the VA failed to provide proper care to manage his glaucoma.” The examiner indicated however that there had been “no reference to any medical care by the VA or anyone before the year 2000.” The VA optometrist opined that it is less likely than not that the VA medical care providers failed to timely diagnose the Veteran’s glaucoma, and that “all evidence reviewed showed that the VA provided proper care for the Veteran’s conditions.” They also opined that it was less likely than not that the additional eye surgeries identified by the Veteran, including the May 2005 and October 2007 trabeculectomies, resulted in additional disability including legal blindness. The rationale provided indicated that “the surgeries performed on the Veteran were appropriate options to preserve vision after years of attempted therapies that were not giving the results that the surgeries could, to prevent further loss of vision.” As such, a negative etiological opinion was provided as to both questions. There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability, to include potential negligence of the VAMCs. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Turning to an analysis of the evidence, the Board is sympathetic to the Veteran’s claim regarding his bilateral blindness/glaucoma. The Board finds, however, that the preponderance of the evidence is against his contention that this disability was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals, or that the diagnosis of bilateral glaucoma should have been made sooner. The Veteran’s claim was forwarded to two separate VA examiners, and both reports have been provided significant probative weight by the Board. Each were specialists in relevant fields, one an ophthalmologist, and the other an optometrist. The first from February 2017 provided a detailed rationale that traced the Veteran’s history of complaints of loss of vision, to include his lapse in treatment upon refusing a surgery, but then his eventual surgeries for the eyes to preserve what vision remained. The second opinion from September 2020 also discussed the history of treatment, the surgeries, and that they were meant to prevent further loss of vision, after various therapies had not been successful. Each opinion directly addressed both questions as well: first opining that the Veteran’s bilateral glaucoma was not a result of VAMC negligence in a failure to timely diagnose the disabilities, and second opining that the surgeries did not result in additional disability, to include the legal blindness. Thus, the most probative evidence demonstrates that the actions of the VA medical professionals do not otherwise demonstrate negligence or other failing such that the provisions for compensation benefits pursuant to 38 U.S.C. § 1151 have been met. Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.