Citation Nr: 21023803 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-42 735A DATE: April 21, 2021 ORDER Entitlement to compensation for an additional headache disability under the provisions of 38 U.S.C. § 1151, due to cataract surgeries performed at the Department of Veterans Affairs Medical Center (VAMC) in Madison, Wisconsin, is denied. FINDING OF FACT The probative evidence of record is against a finding that the Veteran has an additional headache disability resulting from cataract surgeries due to an event not reasonably foreseeable or that was proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of the Department of Veterans Affairs (VA) in furnishing the surgical treatment. CONCLUSION OF LAW The criteria for compensation for an additional headache disability under the provisions of 38 U.S.C. § 1151 have not been satisfied. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1952 to June 1956, to include service in Korea during the Korean War. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of VA Regional Office (RO) that denied compensation under 38 U.S.C. § 1151 for headaches. It was previously before the Board in December 2020 where it was remanded for additional development. That development has been completed, and the claim returns for further adjudication. The Board notes that, while the Veteran opted for a videoconference hearing before a Veterans Law Judge in his September 2018 VA Form 9 (Appeal to the Board of Veterans’ Appeals), he withdrew this hearing request in a July 2019 correspondence. 38 C.F.R. § 20.704(e). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 38 U.S.C. § 1151 The record reflects that the Veteran has a history of cataract surgeries at the Madison, Wisconsin VAMC between 2011 and 2012. He asserts that these surgeries resulted in an additional headache disability for which he seeks compensation benefits pursuant to 38 U.S.C. § 1151. See March 2016 Disability Benefits Questionnaire (DBQ ). He first reported an onset of acute constant headaches at the base of his skull in a February 2013 VA treatment record. A veteran who is disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after the care or treatment is rendered. The additional disability or death must not have been due to the veteran’s failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the 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. 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). Proximate causation can be established when it is shown that VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (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 38 C.F.R. § 17.32. Informed consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b) of this chapter, such as in emergency situations. 38 C.F.R. § 3.361(d)(1). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2011). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. 38 C.F.R. § 17.32(c). The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. Id. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. Informed consent is required for diagnostic or therapeutic procedures in the following cases: where the use of sedation is required; where the use of anesthesia or a narcotic is required; where the procedure may produce significant discomfort for the patient; where there is a significant risk of complication or morbidity; or where an injection of a substance into a joint space or body cavity is required. See 38 C.F.R. § 17.32(d). Proximate causation can also be established when it is shown that the veteran's additional disability or death was an event that was not reasonably foreseeable. This fact is 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Turning to the evidence, the Board notes as an initial matter that, while the record reflects that informed consents were obtained, the issue of informed consent was not raised by the Veteran, nor has it been reasonably raised by the record. The RO afforded the Veteran VA headache examinations in May 2014 and again in April 2018 to determine if his headaches were directly related to his military service. The Board assumes the RO was unclear as to the nature of the Veteran’s claim, as it sought medical opinions as to direct service connection (see 38 C.F.R. § 3.303) rather than a § 1151 claim. Nevertheless, after providing a negative opinion that the Veteran’s headcase were less likely than not related to his military service, the April 2018 examiner did suggest, in an admittedly speculative opinion, that the Veteran’s headaches were related to his cataract surgery. Specifically, the examiner opined that there is no relationship between the subcapsular cataracts themselves and the development of his headaches, as surgically treated cataracts do not result in headaches. Rather, the examiner noted that the Veteran also had a cervical spine disability, with June 2014 diagnostic testing indicating arthritis with boney overgrowth at the C5-6 with foraminal stenosis and spondylolisthesis, and stated that she was “suspicious that this is not coming from his neck as much as it is from an occipital neuralgia,” and that “it is possible that he has enough arthritic build up in his foramen that his occipital foramen are narrowed and the cataract operations necessitated that he be sedated and lying on his occiput for about two hours with each session and that may have caused enough nerve irritation and nerve swelling that he has had a reasonably non-reversible pinch of that nerve.” In other words, while not attributing the headaches to the surgery performed directly on his cataracts, the examiner suggested that the positioning of the Veteran’s head during these surgeries aggravated an existing cervical spine disability. The Board notes here, that a July 2014 private treatment record partially supports the August 2018 VA examiners suggestion, with Dr. F.G. opining (also speculatively) that the Veteran’s headache pain may have been related to occipital nerve irritation and swelling caused by sedated, two-hour surgery on his cataracts. As the medical evidence at the time suggested that there may be a causal link between the Veteran’s current condition and the prolonged period of lying on his back for cataract surgery, the Board remanded the Veteran’s claim in December 2020 for a medical opinion that addresses whether compensation under 38 U.S.C. § 1151 is warranted, which was provided in February 2021. The examiner opined in the negative, stating that it is less likely than not that the proximate cause of his headache disability was carelessness negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment or an event not reasonably foreseeable. The examiner explained that the Veteran’s headaches onset at least five months after the eye surgeries in question. While Dr. F.G. postulated that he developed occipital nerve compression manifesting as occipital neuralgia headache pain during a prolonged supine position during eye surgery, such a nerve compression and pain would have manifest and continued immediately after the surgery in question, not beginning months later. Rather, the examiner continued, the Veteran had significant degenerative cervical disease, which was identified by that same private provider. That provider ultimately determined, after successfully treating the Veteran with cervical epidural injections, that his headache pain generator was the cervical degeneration and disc disease with associated occipital foramen degeneration, not an intrinsic occipital nerve compression related to a transient, as yet unverified, pressure on the occipital nerve during eye surgery. Thus, his headaches developed spontaneously due to his underlying cervical spine disability, not due carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The examiner also opined that it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed it to continue to progress. The Veteran was advised to seek emergency care as soon as he complained of the occipital headaches, and VA providers then initiated medications and referrals as soon as the headache complaints became a routine issue for Veteran. Therefore, the examiner continued, VA providers acted quickly and appropriately for Veteran regarding his headache complaints. Finally, while the Board acknowledges that the examiner did opine that it is at least as likely as not that Veteran’s headaches developed due to an event not foreseeable by a reasonable healthcare provider, she apparently misunderstood the purpose of the question. Again, 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 38 C.F.R. § 17.32. While the examiner explained that it would not have been possible for VA providers or any reasonable healthcare provider (in particular the ophthalmologists treating Veteran’s unrelated eye conditions) to predict or foresee the sudden onset of his headaches, as she previously opined the Veteran’s headaches developed spontaneously due to his underlying cervical degenerative disorder rather than due to any VA procedure for which informed consent was given. There is no other medical evidence in significant conflict with the above opinion. Thus, the most probative medical evidence is against the claim. While he may assert that his headaches are the result of his VAMC cataract surgeries, the record reflects that the Veteran elected to undergo the cataract surgeries with the appropriate consent received, and the most probative evidence of record indicates that his symptomology is unrelated to these procedures. Moreover, as the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., erectile dysfunction and urinary issues; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). However, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the surgical treatment is a topic that a physician is competent to opine on, but a layperson is not. Thus, his lay assertions do not constitute evidence upon which this claim can be granted. The Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on the medical evidence of record and reasonably drawn conclusions with supportive rationale. In sum, as the preponderance of the evidence is against the claim for compensation under 38 U.S.C. § 1151, the claim must be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.