Citation Nr: 21023719 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-11 734 DATE: April 21, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for loss of eyesight in the right eye, status-post cataract extraction, glaucoma shunt, and retinal detachment repair, is denied. FINDING OF FACT The Veteran’s treatment by Department of Veterans Affairs (VA) ophthalmologists did not result in additional disability following a 2006 fee-basis authorized private right eye surgery. CONCLUSION OF LAW The criteria for compensation for loss of eyesight in the right eye, status-post cataract extraction, glaucoma shunt, and retinal detachment repair, pursuant to 38 U.S.C. § 1151 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 July 1962 to June 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Law and Analysis A veteran who suffers 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 carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that 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). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 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 beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(3). Moreover, additional disability 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). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). 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, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability 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 of 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. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Third, the proximate cause of the 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 hospital care, medical or surgical treatment, or examination; 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 hospital care, medical or surgical treatment, or examination was the proximate cause of 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; 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 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). Regarding reasonable foreseeability, 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 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). Thus, section 1151 contains two causation elements a veteran’s disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Historically, the Board notes that the Veteran suffered had ocular trauma to the right eye from a BB gun injury when he was 12 years-old. The trauma resulted in a state of aphakia following cataract surgery. During a December 2019 VA examination, the Veteran provided a detailed medical history to the examiner. He indicated that his right eye vision became dark in half the sight while driving in June 2001. He was subsequently evaluated by an eye care specialist and diagnosed with a retinal detachment. He was referred to the New Orleans, Louisiana VA Medical Center (VAMC) for repair and retinal detachment repair was performed three days after his initial symptoms. He stated that his vision returned following the retinal repair, but two years later, he had a corneal failure and he underwent a corneal transplant at VA. The cornea transplant failed and the Veteran had a second corneal transplant in 2005. He reported that the Veteran was sent to the Jackson, Mississippi, VAMC for further post-operative care of the corneal transplant as a result of Hurricane Katrina; however, no corneal or retinal specialists practiced at the Jackson VAMC so he was transferred to the Shreveport, Louisiana VAMC. The Veteran stated that there were no corneal or retinal specialists at the Shreveport VAMC either, so he did not keep his appointment. He related that he was being treated by a private specialist, Dr. A., until VA funding for his appointments was withheld and he was referred back to New Orleans VA ophthalmology for further care. The Veteran stated that New Orleans VAMC did not have an eye care specialist and that his vision continued to go dark until present. See December 2019 VA examination report, Section II, Medical History. In the December 2019 VA examination report, the VA examiner diagnosed the Veteran with a failed corneal transplant graft, pseudophakia, and glaucoma. The examiner noted that the Veteran’s symptoms included no depth perception and no functional vision from the right eye. The Veteran contends that his right eye vision loss was the result of poor care from VA due to lack of prior records and access to subspecialists. See December 2019 VA examination report, Section II, Medical History. Specifically, he has stated that his section 1151 claim is “based on the fact that the error was not an active error, but an error of omission.” He has alleged that the progress that he had made with the fee-basis private specialist, Dr. A., reversed because VA stopped funding his appointments with Dr. A. He stated that Dr. A. was the first doctor to get his right eye to improve and that he was happy with the care and outcomes that he was getting from treatment with Dr. A. After he began receiving treatment at VA, he stated that the VA eye doctor told him that he did not know what Dr. A. had been doing and that he could not get the records to find out. See September 2018 notice of disagreement (NOD). In a July 2018 statement, the Veteran explained that following surgery with Dr. A., Hurricane Katrina hit New Orleans during his recovery process. He stated that he was sent to the Jackson VAMC and he was admitted without records and that they were unwilling to treat his eye. He indicated that he made several calls and attempts to find someone for follow-up treatment on his fresh surgical procedure, but he was told that they could not help without his records. Thereafter, he located Dr. A. and he was able to make an appointment with him and he was granted VA approval to continue treatment with the specialist. He stated that the eye was healing as expected and that the doctor was pleased with his progress. He stated that, after some time, he received a phone call from VA that VA would no longer fund appointments with Dr. A and that he would need to seek care from a VA physician. The Veteran indicated that VA did not obtain his private treatment records and that the VA ophthalmologists would “examine the eye and say everything looked ok.” He related that he began losing eyesight and that he eventually lost all vision in the right eye “due to the neglect of having insufficient record keeping and medical staff knowledgeable about the surgeries and implants” in his right eye. During the February 2021 hearing, the Veteran testified that when Dr. A. began treating the Veteran, his right eye was recovering from surgeries and that it started to heal well. He stated that VA stopped funding his treatment with Dr. A. and he returned to VA physicians, his eye “went sour” and he eventually lost all eyesight in his right eye. A review of the extensive record shows that the Veteran had multiple retina and corneal transplants at VA, including a right eye shunt in August 2005, before he was referred for a consultation with Dr. A. for increased right eye pressure. In February 2006, the Veteran underwent emergency surgery by Dr. A. to place a second shunt in his right eye under fee-basis authorization after the August 2005 shunt failed. A January 2006 VA treatment note indicated that the Veteran was seen by Dr. A. for follow-up three times before Hurricane Katrina. Following Katrina, he was consulted to the Jackson VAMC where he was treated for increased intraocular pressure (IOP). It was noted that all records were provided to the clinic at Jackson, and that a VA ophthalmologist at Jackson spoke to Dr. A. The Veteran was subsequently treated by Dr. A. and told that the shunt failed and that he required emergency surgery. An October 2006 VA note indicated that the Veteran’s follow-up visits for eye pressure checks with Dr. A. would no longer be covered by VA on a fee-basis. A VA ophthalmologist reviewed the case and felt that the Veteran could have his eye pressures checked in the VA eye clinic and that if it was determined on a visit that the Veteran needed to see Dr. A., then a consultation would be placed. The Veteran was informed that any unauthorized visits to Dr. A. may not be paid and, although they could be approved, it must first be determined that what Dr. A. is doing is something that cannot be done by a VA ophthalmologist. Six days later, the Veteran called and stated that he had resumed treatment with a VA eye doctor and that he understood that he needed to get authorization for treatment by Dr. A. in the future. In a January 2007 VA treatment note, a VA ophthalmologist noted that he stressed adherence to the treatment regimen with the Veteran and that the risk of total and permanent blindness was discussed. In a February 2008 VA ophthalmology note, the physician noted that the right eye penetrating keratoplasty (PKP) was hazy and it was recommended to the Veteran that he had the option of a repeat corneal transplant in his right eye if he desired. The physician noted that given the optic nerve pallor and history of retina detachment, it was likely that the Veteran would not attain good vision in the eye. In June 2008, December 2008, and May 2009 VA treatment notes, the Veteran stated that he did not want a repeat corneal regrafting. In an August 2018 independent medical opinion, a subspecialist vitreoretinal surgeon opined that the Veteran’s case was the unfortunate result of ocular damage suffered as a child. He stated that all subsequent management options were followed appropriately by several physicians and surgeons involved. The physician noted that he reviewed treatment records dated from June 2001 to May 2009 in forming his opinions and that he did not have access to subsequent treatment records. In his review of the available records, the physician stated that he did not find any indication that the Veteran’s condition, which was caused by childhood injury, was in any way made worse by the multiple attempts to correct inherent pathological processes. In fact, on the contrary, he indicated that if left unattended, the multiple pathological events would not only have had a similar result, if not worse, but more likely than not, they would have occurred at a much younger age. The physician also determined that all potential additional disabilities were carefully considered by the expert physicians as evidence by their management decisions. He noted that all procedures appeared to have been well thought-out and performed in expert fashion. In addition, he related that the experts in each of the several areas in question utilized extreme care in management with no failure to timely diagnose or treat the conditions. In his August 2018 independent medical opinion, the physician also provided the following: The primary culprit that was the cause of the ultimate loss of vision in this patients (sic) right eye was initiated by the events associated with secondary glaucoma from angle recession stemming from the severe childhood BB eye injury and subsequent hypoperfusion state from development of multiple vasculopathic conditions. The very presence of lens damage requiring its removal and associated angle recession at the initial time of the injury are indicative of an exceptionally severe trauma inflicted by the BB injury. All subsequent procedures were performed to maintain vision as the complications from this event warranted. The physician stated that his interpretation of a plausible explanation for the appearance of sudden vision loss in September 2006 was due to a sloping type optic nerve defect consistent with primary vascular ischemic optic nerve damage versus a clear cut glaucomatous change from prolonged elevated IOP, which could reasonably account for the abrupt change in the optic nerve appearance and vision loss. He explained that with glaucoma, peripheral vision is lost over an extended period while retaining central vision until the end stage of the glaucomatous process with hallmark findings associated with classic cupping and visual field changes. He stated that, on the contrary, optic neuropathy is associated with a hypoperfusion vascular defect with acute vision loss and sloping optic cup versus classic deep vertical cupping of glaucoma. He opined that this case had the essential elements of the former to occur. However, he noted that there was no single event that he could find on his review of the record that resulted in the Veteran’s outcome other than the totality of ocular events enhanced by his development of an extensive history as a Vasculopath. The physician related that it was imperative to recognize that all of the Veteran’s subsequent systemic vascular problems have had a direct influence on a hypoperfusion state resulting in optic nerve ischemia. In conclusion, the physician stated that the records indicated that the Veteran received excellent ophthalmic care and management. The December 2019 VA examiner also opined that it was less likely than not that the Veteran’s right eye disability became worse as a result of VA treatment because the decreased visual function of the right eye, post-cataract, appeared to be secondary to corneal graft failure and glaucoma. The examiner opined that it was less likely than not that the Veteran’s additional disabilities resulted from the carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner acknowledged the Veteran’s contention that his cornea transplant failed due to proper care after Hurricane Katrina when he was directed to other VAMCs but they were unable to assist him with care due to lack of subspecialists and a lack of previous treatment records which prevented him from obtaining proper care. The examiner noted that general ophthalmologists have exposure and training to manage glaucoma and corneal transplant post-operative courses. In addition, the examiner stated that general VA ophthalmologists have the ability to refer to the local community for issues that are outside the scope of practice. The examiner also noted that there was documentation that multiple attempts were made to try to direct the Veteran to the proper care. The December 2019 VA examiner opined that it was at least as likely as not that the additional disability resulted from an event that could be reasonably foreseen by a reasonable health care provider. The examiner explained that corneal transplant failure or rejection is a known risk factor of corneal transplant. In fact, the examiner mentioned that Ophthalmologic Mutual Insurance Company has a uniformed consent stating this for PKP under major risks, which includes the risk of glaucoma and corneal transplant failure. The December 2019 VA examiner also opined that it was less likely than not that the issue was secondary to failure on the part of VA. The examiner noted that the corneal graft failure appeared to have occurred in approximately 2008 according to the record. The examiner noted that the Veteran was evaluated in 2009 by VA and that he was offered a repeat corneal transplant, which he declined. The examiner found that there were no records indicating that the VA evaluated the Veteran during the early part of his corneal transplant failure in which they could have intervened; rather, the Veteran was not evaluated until after the cornea transplant graft had already failed. Thus, the examiner determined that it was less likely than not that the issue was secondary to failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability or allowed the disease or disability to continue to progress. In reaching the opinions as to the claimed additional disability, the December 2019 VA examiner performed an examination of the Veteran. The August 2018 examiner and the December 2019 VA examiner also reviewed the pertinent evidence in the claims file, including the Veteran’s treatment records and his contentions. The Board finds that these opinions, taken together, address the central medical issues in this case, are based on an analysis of the evidence and current medical understanding, and are therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (an examination is not rendered inadequate where the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion”); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In summary, the most probative evidence (including consideration of the lay statements) shows that, although the Veteran has been shown to have disability due to the Veteran’s treatment by VA ophthalmologists following the 2006 fee-basis authorized private right eye surgery, the evidence does not establish that any additional disability was caused by the VA treatment. If the Board finds that there is no “actual causation,” it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability). That is, because the evidence of record does not demonstrate additional disability caused by VA treatment, examination, or surgery, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability. Mangham v. Shinseki, 23 Vet. App. 284, 287-88 (2009) (citing Loving v. Nicholson, 19 Vet. App. 96, 101 (2005)); see also 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board has considered the Veteran’s statements, including his competent reports of observable symptomatology such loss of eyesight. Nevertheless, as to the question of whether he actually has additional disability for purposes of § 1151 benefits, even assuming that he is competent to opine on this medical matter, the Board finds that the August 2018 physician and December 2019 VA examiner’s opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale based on such knowledge. The VA examiner and private physician reviewed the claims file and considered the Veteran’s reported history and lay statements. As a preponderance of the evidence is against finding additional disability due to the Veteran’s treatment by VA ophthalmologists did not result in additional disability following the 2006 fee-basis authorized private right eye surgery, the criteria of 38 U.S.C. § 1151 are not met. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Osegueda, Kristyn L. 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.