Citation Nr: 21042288 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-25 866 DATE: July 12, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left eye disability is denied. FINDING OF FACT The Veteran's left eye disability did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for left eye disability have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1957 to December 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In July 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. This claim was remanded in October 2018 for further development. In February 2021, the Board remanded this case again and instructed the Agency of Original Jurisdiction (AOJ) to obtain an addendum VA examination report. The Board notes that the requested addendum report was obtained in March 2021 and has been associated with the claims file. 1151 Eligibility Under VA laws and regulations, when a veteran suffers additional disability as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The veteran must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, 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 program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that 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 or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnosis and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). 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). 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, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability 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. 38 C.F.R. § 3.361(d)(2). Left Eye Disability The Veteran asserts he is entitled to compensation for a left eye disability pursuant to 38 U.S.C. § 1151. Specifically, the Veteran asserts that he lost vision in his left eye due to laser surgery performed at his VA medical center to remove cataracts. See April 2013 Claim. In addition, the Veteran asserts there was a delay in treatment between a March 2012 eye examination and surgery conducted in August 2012, and that the delay caused his left eye condition. See June 2016 VA Form 9, Substantive Appeal. The evidence of record includes a February 2012 VA medical record showing the Veteran established medical care. He was noted to have a history of a prior heart attack, elevated cholesterol, and left eye cataracts. A March 2012 VA medical record noted the Veteran reported being told he had cataracts and that he had a hard time seeing out of his left eye. He requested an eye clinic consultation. In April 2012, the Veteran reported that he was going to have cataract surgery with an outside medical provider. The Veteran was notified that in order to receive prescription eye drops he would have to go through the VA eye clinic for his surgery. See VA Medical Records Received February 2018. The Veteran was assessed with suspect glaucoma and macular edema in August 2012. In September 2012, the Veteran underwent laser surgery on his left eye to create an opening in the iris to allow trapped fluid to drain. See VA Medical Records Received February 2018. The Veteran underwent cataract surgery on his left eye in November 2012. Nine days later, a November 2012 VA medical record shows the Veteran was assessed with suspected left eye ocular ischemic syndrome with early neovascular glaucoma. Ischemia was noted to have been documented during an October 2012 cardiac stress test and a history of iliac stenting and other cardiac risk factors were also noted. In December 2012, the Veteran was found to have a left eye central retinal vein occlusion with associated retinal hemorrhages, iris neovascularization and retinal neovascularization. The recent rise of intraocular pressure was found consistent with neovascular glaucoma. Left eye panretinal photocoagulation laser surgery was performed. The Veteran was treated with eye injections for central retinal vein occlusion with macular edema in March 2013. Eye injection treatments continued through August 2013. See VA Medical Records Received February 2018. A September 2013 VA medical record noted a history of left eye central retinal vein osculation. The Veteran reported an improvement in a small spot where he was able to see. The ophthalmologist noted possible early neovascularization of the optic disc versus shunt vessels central retinal vein occlusion with hemorrhages and continued macular edema. Dense panretinal photocoagulation scars were noted. Additionally, it was noted that a discussion was had with the Veteran that he was being put at risk with the injection procedure and he agreed to hold off on getting injections. With regard to glaucoma, the ophthalmologist noted that the nerve appeared healthy. See VA Medical Records Received February 2018. In a December 2013 statement, the Veteran asserted that he had to wait nine months to schedule his VA eye surgery. In addition, he asserted that during his surgery the physician talked to a nurse about an unrelated matter, and that he would not have lost vision in his left eye had the physician concentrated on his surgery. An April 2014 VA ophthalmology record noted left eye central retinal vein occlusion. The physician noted treatment with eye injections in the past with some reduction in edema, but that the Veteran was not happy with the lack of improvement in his vision and had decided to observe rather than treat the condition. See VA Medical Records Received February 2018. In a July 2014 letter, a VA Interim Medical Center Director noted the Veteran's assertion that his eye care was not provided in a timely manner which contributed to his current loss of vision in his left eye. That assertion and the Veteran's VA medical records were reviewed by the chief of ophthalmology, including records from the initial February 2012 request for an eye examination to his November 2012 cataract surgery. After a review of those records, the chief of ophthalmology opined that the Veteran's diagnosis and referral for care was timely and appropriate. See VA Medical Records Received June 2016. In his January 2015 notice of disagreement, the Veteran stated he had been diagnosed with cataracts by a private physician, but that due to the cost of treatment, he sought VA care. In this regard, he asserted that it took 7 months to receive an appointment, and that he was not treated for glaucoma until that time. In addition, he asserted that it took another 3 months to undergo cataract surgery, that he had vision in his left eye before the surgery, and that due to the treatment he received and the time it took to receive treatment for his cataracts and glaucoma, that such caused his left eye blindness. At a July 2018 Board hearing, the Veteran testified that immediately following his cataract laser surgery he could not see anything out of his left eye. The Veteran further asserted that he did not receive timely treatment for his glaucoma which resulted in his loss of vision. A September 2018 private eye examination record shows the Veteran reported losing vision in his left eye due to glaucoma. The physician noted a left eye retinal tear and prior retinal surgery. In addition, the physician noted vision loss in the left eye due to prior retinal damage. He was diagnosed with post-surgery chorioretinal scars. In a September 2018 letter, the Veteran's ophthalmologist noted that he had been under his care for left eye central retinal vein occlusion. The Veteran was noted to be legally blind in his left eye and that further treatment would not improve his vision. See Private Medical Records Received September 2018. In a December 2018 letter, the Veteran asserted that the September 2018 private medical record incorrectly noted a left eye retinal tear and that he had been diagnosed with post-surgical chorioretinal scars. In this regard, he stated that the physician who wrote the letter assumed his prior left eye laser surgery was for a left eye detachment. In addition, he asserted that while receiving VA laser treatment to make a hole in his left eye, his head was placed in a brace in front of a laser machine, that the machine made a noise and that the physician said "Ok." Based on this statement, the Veteran asserted that he believed the physician had set the laser off by accident. The Veteran underwent a VA eye examination in November 2019. The examiner noted diagnoses for left eye neovascular glaucoma and bilateral pseudophakia. In addition, the examiner noted additional eye conditions including left eye cystoid macular edema, blindness and complete visual field loss. With regard to the left eye cystoid macular edema, the examiner noted that the condition was secondary to a number of potential causes, but that the condition most commonly occurred within a few weeks following cataract surgery. In this regard, the examiner noted left eye cataract surgery in 2012. The examiner further noted that the condition was known to occur following retinal vein occlusion, and that the Veteran had been diagnosed with that condition at some point in time following his cataract surgery. With regard to the left eye neurovascular glaucoma, the examiner found that the total loss of vision was most likely due to this condition. In this regard, the examiner noted a diagnosis for early stage neovascular glaucoma in November 2012, which was attributed to having had ocular ischemic syndrome as early as 9 days after his cataract surgery, which was later diagnosed as central vein occlusion in December 2012. The examiner noted that several attempts were made to address this condition including using extensive pan retinal photocoagulation laser treatment. The examiner opined that it was "less likely than not (less than 50 percent probability)" that any additional left eye disability resulted of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA. In support of this opinion the examiner noted the Veteran's lay statements that VA medical treatment had caused him to lose all vision out of his left eye, specifically the wait period for cataract surgery. However, the examiner stated that having cataracts and delaying the removal of cataracts did not necessarily cause glaucoma, or the macular edema that he was found to have in August 2012. With regard to the glaucoma, the examiner noted that the condition was already an advanced case at that time. Specifically, the examiner pointed to a November 2012 VA medical record that was 9 days post cataract surgery which noted a left optic nerve head with glaucomatous damage from advanced open angle glaucoma, a condition the Veteran might have been living with for years, as well as suspicion of ocular ischemic syndrome and neovascularization at both the optic nerve head and a trace amount at the iris. Accordingly, the examiner concluded that a second more aggressive type of glaucoma had existed and was not due to any delay on the part of VA medical care. Instead, the examiner noted that the advanced open angle glaucoma was a common type of vascular disorder in people over 55 with a history of hypertension and glaucoma. Additionally, the examiner noted that vascular accidents were common and unpredictable in those with hypertension. As such, the examiner concluded that shortly before or after the November 2012 cataract surgery, the Veteran's left eye underwent an ocular ischemic event which "polished off the remaining vision in his left eye," and that despite undergoing a pan retinal photocoagulation procedure in December 2012 in an effort to save his vision, he had two types of glaucoma attacking his left eye. Therefore, the examiner concluded that the left eye vision loss was not due to any surgical procedure. Lastly, in a March 2021 VA examination report, the examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran developed a left eye condition was a result of his VA treatment. In support of this opinion, the examiner noted that the Veteran was initially evaluated in August 2012, and that he was diagnosed with left eye glaucoma at that time. The examiner also noted no evidence of any ocular ischemic syndrome or neovascular glaucoma during the initial examinations performed prior to his cataract surgery. With regard to neovascular glaucoma, the condition was noted as a secondary type of glaucoma, and that the root cause was decreased blood flow to the eye. The examiner found that the Veteran had multiple risk factors for decreased blood flow, including CAD with a history of myocardial infarction, ongoing angina, hypertension and hyperlipidemia. Those risk factors were found "more likely than not" to have led to the development of ocular ischemic syndrome with reduced blood flow to the eye. This finding was based on the fact that a review of the examination notes showed that neovascular glaucoma was diagnosed after the left eye cataract surgery, and that a review of the operative report noted no complications during the surgery. Lastly, the examiner based this opinion on a finding that ocular ischemic syndrome and neovascular glaucoma were not expected usual complications of cataract surgery. The examiner also opined that the it was "less likely than not" that the conditions of ocular ischemic syndrome leading to neovascular glaucoma and cystoid macular edema were due to complications from his cataract surgery, or due to any delay in treatment. In support of this opinion, the examiner noted that the examination notes evidenced that the neovascular glaucoma was diagnosed after the left eye cataract surgery, and that a review of the operative report revealed no complications had occurred during that surgery. Additionally, the examiner again stated that ocular ischemic syndrome and neovascular glaucoma were not expected usual complications of cataract surgery. The examiner also addressed potentially conflicting medical evidence regarding whether there had been early stage neovascular glaucoma due to ocular ischemic syndrome occurring prior to the cataract surgery, or whether it developed after the surgery. In this regard, the examiner noted no documentation of typical ocular signs or symptoms of ocular ischemic syndrome and neovascular glaucoma in the eye examinations prior to the cataract surgery. The examiner noted that without any clinical evidence of signs such as iris neovascularization and/or retinal neovascularization, that it was not possible to offer any such diagnoses. However, the examiner did state that it would be reasonable but presumptive to assume that given the Veteran's risk factors of cardiac disease and hypertension, he might have had early compromised blood ocular flow prior to the cataract surgery, but that the blood flow at that point had not been compromised enough to produce clinical signs of ocular ischemic syndrome and neovascular glaucoma. In this regard, the examiner noted that diagnoses of ocular ischemic syndrome and neovascular glaucoma were based on clinical findings and changes in the eye such as neovascularization of the iris, angle and retina, but that no such findings were documented. Initially, the Board notes that the threshold element for 38 U.S.C. § 1151 compensation, the presence of a qualifying additional disability, has been met in this case. The record establishes that the Veteran has left eye conditions including neovascular glaucoma, pseudophakia, cystoid macular edema, blindness and complete visual field loss. The remaining question is whether any left eye condition was proximately caused by VA's care, treatment, or lack thereof. In this regard, the Board finds that the weight of the evidence does not establish that a left eye condition is due to treatment received at a VA medical center, to include cataract surgery and pan retinal photocoagulation laser treatment. As noted above, to establish causation, evidence must show that VA medical treatment resulted in additional disability. Merely showing that he received care, treatment, or examination and has additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). Turning to the evidence of record, the Board finds most probative the March 2021 VA examination report. The examiner considered the evidence of record, but, based on that evidence, concluded that the left eye conditions were not proximately due to VA treatment. Instead, the March 2021 VA examiner noted no evidence of any ocular ischemic syndrome or neovascular glaucoma, the conditions that caused his left eye blindness, during his initial August 2012 evaluation. Instead, with regard to the ocular ischemic syndrome, the examiner found that the condition was "more likely than not" caused by his CAD, prior myocardial infarction, ongoing angina, hypertension and hyperlipidemia. The Board finds the examiner's rationale persuasive, particularly the finding that the examination reports noted no complications during the cataract surgery, the fact that ocular ischemic syndrome and neovascular glaucoma were not usual complications from cataract surgery, and the fact that neovascular glaucoma was diagnosed after the left eye cataract surgery. The examiner also addressed the Veteran's assertion that a delay in cataract treatment led to the development of his neovascular glaucoma and cystoid macular edema. Again, the Board finds it instructive that the examiner noted no evidence of any ocular ischemic syndrome or neovascular glaucoma during his initial examinations prior to his cataract surgery, the fact that neovascular glaucoma was diagnosed after his left eye cataract surgery, and the fact that the conditions were not usual cataract surgery complications. The Board further finds probative the examiner's discussion as to whether there had been early stage neovascular glaucoma due to ocular ischemic syndrome prior to the cataract surgery, or whether the condition developed after the surgery. In this regard, the examiner noted that those conditions were typically diagnosed based on signs and/or symptoms such as iris neovascularization and retinal neovascularization. However, such signs or symptoms were specifically found to be absent prior to his cataract surgery. The March 2021 VA examiner's opinion is further bolstered by the November 2019 VA examiner who concluded that it was "less likely than not (less than 50 percent probability)" that any additional left eye disability resulted of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA, and that the Veteran had not lost his vision due to any left eye surgical procedure. The November 2019 VA examiner additionally noted that vascular accidents were common and unpredictable in those with hypertension, a condition affecting the Veteran. Accordingly, the probative evidence of record does not support a finding that VA provided inappropriate standard of care, and there is no indication that the left eye conditions resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider or failure on the part of VA to timely diagnoses or properly treat the condition. The Board recognizes the Veteran's lay statements in which he asserts that a delay in his cataract treatment led to the development of additional left eye conditions, and, eventually, blindness. This assertion was addressed by the November 2019 VA examiner, who noted that having cataracts and delaying the removal of cataracts did not necessarily cause glaucoma or macular edema, and the March 2021 VA examiner, who noted that there was no evidence of any ocular ischemic syndrome or neovascular glaucoma during the initial examinations prior to his cataract surgery, and that a review of the operative report evidenced that no complications had occurred during his surgery. In any event, without evidence showing that he has medical training or expertise, he cannot competently provide a medical opinion between a delay in treatment and his current left eye conditions. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board further recognizes the Veteran's assertion that during his laser treatment, a laser might have accidentally been set off prematurely, and that he was, thereby, blinded by that error. However, this statement is wholly speculative in nature. In this regard, the Board again finds the March 2021 VA examiner's finding that the medical evidence did not show any complications occurred as a result of his surgery. Thus, the Veteran's lay statements are directly contradicted by the VA examiner's medical findings. Thus, the weight of the evidence of record supports the conclusion that the Veteran's left eye conditions are not due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. Additionally, the Board finds that the development of the ocular ischemic syndrome leading to neovascular glaucoma and cystoid macular edema cannot be said to have been reasonably unforeseeable. Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.