Citation Nr: 21031974 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-40 530 DATE: May 25, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness due to an eye surgery performed at the VA Medical Center in Philadelphia, Pennsylvania, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's left eye blindness was actually caused by a July 2013 eye surgery performed at the VA Medical Center in Philadelphia, Pennsylvania, or by the delay in scheduling such surgery. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for left eye blindness due to an eye surgery performed at the VA Medical Center in Philadelphia, Pennsylvania, have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 to October 1967. This matter is on appeal from a February 2014 rating decision. In May 2018 and December 2020, the Board of Veterans' Appeals (Board) remanded the appeal for additional evidentiary development. Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness due to an eye surgery performed at the VA Medical Center in Philadelphia, Pennsylvania. The Veteran contends that his left eye blindness was either caused by his July 2013 VA eye surgery or caused by a delay in scheduling his surgery. A veteran 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 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). To satisfy the first prong of proximate causation, it must be shown that the 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, 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. 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. 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. 38 C.F.R. § 17.32(c). The second prong of proximate causation requires that the veteran's additional disability or death be 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). Finally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In September 2013, the Veteran was afforded a VA eye conditions examination. The VA examiner diagnosed primary open angle glaucoma and pseudophakia. In February 2014, the VA examiner provided an addendum medical opinion. The VA examiner indicated that the Veteran's blindness of the left eye was not likely caused by his surgery at the Philadelphia VA Medical Center. He explained that the Veteran was followed very closely by ophthalmology and had a history of noncompliance with medication. Therefore, the need for surgery was indicated. The VA examiner reiterated that the Veteran's vision loss was not likely a result of the surgery. Surgery was recommended as soon as possible, and vision loss was more likely than not due to the fast progression of his glaucoma. A review of the notes and appointment history showed that a lapse in scheduling was due to improper scheduling. Pursuant to the May 2018 Board remand directives, the Veteran was afforded another VA eye examination in November 2019. The VA examiner diagnosed bilateral advanced glaucoma, branch retinal vein occlusion of the right eye, and pseudophakia. The Veteran was legally required to use a walking stick. After reviewing the record, the VA examiner found that the Veteran's left eye blindness was not caused by the July 2013 surgery or the delay in scheduling. The Veteran had poor compliance for over a decade with treatment. In January 2021, VA obtained an addendum medical opinion. The VA examiner opined that the Veteran's left eye blindness was less likely than not caused by the eye surgery or any delay of scheduling. She elaborated that glaucoma is an extremely difficult disease to diagnose and manage. He had poor compliance with treatment, which is the number one reason for blindness in glaucoma. Surgery intervention occurs at the advanced stage. The Veteran's glaucoma was progressing aggressively by the time of his surgery. The Board will now address the causation requirements of a 38 U.S.C. § 1151 claim. 38 C.F.R. § 3.361(c). Applying the above facts to the aforementioned law, the Board finds that the Veteran's additional disability of left eye blindness was not actually caused by the July 2013 VA examination or the delay in scheduling the procedure. The medical opinions of record indicate that the Veteran's blindness was caused by his noncompliance with his glaucoma treatment, rather than his July 2013 surgery or the delay in scheduling such surgery. There are no contrary medical opinions of record. In summary, the evidence of record establishes that the Veteran has an additional disability of left eye blindness that was not actually caused by the July 2013 surgery or a delay in scheduling such surgery. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In reaching this decision, the Board has considered the Veteran's descriptions, arguments, and opinions in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., decreased visual acuity of his left eye. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Here, the Veteran has credibly described the onset of his left eye blindness. However, when speaking to the issues of carelessness, negligence, lack of proper skill, error in judgment, and foreseeable risk, the Board finds that the probative value of the opinions of the VA examiners greatly outweighs that of the Veteran and his representative, as the VA examiners possess greater training and expertise to determine the appropriate standard of care and the underlying cause of the Veteran's left eye blindness. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, for the aforementioned reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim. Thus, the Veteran's appeal must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.