Citation Nr: 22016136 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 09-41 952A DATE: March 21, 2022 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for corneal abrasion, due to panretinal photocoagulation (PRP) of the left eye, performed at the VA Medical Center (VAMC) in Richmond, Virginia, on March 29, 2006, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1977 to January 1985, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2008 by a Department of Veterans Affairs (VA) Regional Office. In December 2018, the Veteran was advised that his requested Board hearing was scheduled for February 2019; however, he failed to appear for it. As such, his request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702 (d); 20.704(d). In March 2020, the Board remanded the appeal for additional development, and it now returns for further appellate review. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for corneal abrasion, due to panretinal photocoagulation (PRP) of the left eye, performed at the VA Medical Center (VAMC) in Richmond, Virginia, on March 29, 2006. The Board finds that remand is warranted to clarify ambiguities in the December 2021 VA examination report and to associate with the record any informed consent documents pertinent to the VA treatment at issue. The Veteran contends that he has ongoing left eye complications due to a March 2006 PRP procedure performed in March 2006 by the VA Medical Center (VAMC) in Richmond, Virginia. In this regard, according to the Veteran, prior to undergoing PRP in March 2006, his vision in his left eye was corrected to 20/20. He reported that after the procedure, several optometrists had advised that his left eye is warped/deformed, and that his vision is no better than 20/40 corrected. The Veteran asserts that the PRP procedure caused permanent loss of vision in his left eye. In particular, the Veteran contends that after the PRP procedure, he has a permanent loss of vision and ongoing symptoms, to include pain, distorted vision and watering eyes. The question before the Board is whether the Veteran has an additional disability that is proximately caused by 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. Turning to the medical evidence, according to an outpatient ophthalmology note from the eye clinic in March 2006, the Veteran's assessment included neovascular glaucoma in the left eye, still fairly early on. However, the provider noted the neovascularization of the angle did not necessarily correspond to the amount of neovascularization in the posterior and there might be some ocular ischemic component. Per the provider, a PRP procedure was performed, however had to be aborted prematurely secondary to the Veteran receiving a corneal abrasion. According to an eye examination in July 2008, the Veteran's uncorrected far vision in the left eye was 20/400, and the corrected far vision in the left eye was 20/30. The uncorrected near vision in the left eye was 20/25, and the corrected near vision in the left eye was 20/20. The examiner noted the Veteran's diagnosis of diabetes with proliferative diabetic retinopathy and documented subjective factors as blurring and decreased vision. The noted objective factors were one dot hemorrhage in the left eye status post PRP laser treatment. Per the March 2020 Remand, the Board directed that the Veteran be afforded a VA examination to address the current state of his left eye, and to address complications from his left eye PRP procedure. In particular, the Board requested a determination as to whether the Veteran suffered additional complications and disability due to his March 2006 left eye PRP procedure. The Board also requested an opinion as to whether any additional disability was caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, specifically left eye cornea damage during the procedure. Finally, the Board directed the examiner to determine whether any additional disability was proximately caused by an event not reasonably foreseeable, and if such 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. In December 2021, the Veteran appeared for an in-person VA examination for eye conditions. As reflected in the Eye Conditions Disability Benefits Questionnaire (DBQ), the examiner found that the Veteran had a corneal scar on his left eye that occurred during the PRP procedure, and that scarring resulted in decreased visual acuity or other visual impairment. With regard to the issue of fault on the part of VA, the examiner found the Veteran's additional disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, specifically left eye cornea damage during surgery. As a rationale, the examiner indicated, based on documentation on the records, the doctor performing the procedure had difficulty due to the Veteran's cooperation. The VA examiner's opinion with regard to whether the Veteran's additional disability was reasonably foreseeable, however, is unclear. First, the examiner found that the Veteran should have been informed of complications, including damage to surrounding treatment areas by the lasers, when he consented to the procedure. This suggests that the examiner found that the additional disability the Veteran suffered was caused by an event that was reasonably foreseeable, i.e., an even that was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. Yet, later in the examination report, the examiner stated that "[i]t is at least as likely as not that the injury could not have reasonably been predicted by a healthcare provider." An additional opinion is necessary to address this internal inconsistency. The Board also finds that remand is necessary to obtain any VA records concerning the Veteran's informed consent for the PRP procedure. In his February 2022 Informal Hearing Presentation (IHP), the Veteran's representative, in pertinent part, asserted that irrespective of whether the Veteran was informed of the risk and eager to proceed, the specific risk must be delineated, and the Veteran must have accepted the specific risk over his or her signature. VA treatment records from March 29, 2006, reflect that informed consent was obtained on that date, and that the full consent can be accessed through Vista Imaging. Additionally, an administrative note from March 2006 demonstrates that the scanned emergency room documents could be viewed on Vista Imaging. However, the full informed consent documents and the emergency room documents related to the March 2006 left eye PRP procedure have not been associated with the record. As the Board does not have access to Vista Imaging, a remand is necessary to obtain such records. The matter is REMANDED for the following action: 1. Obtain the Veteran's full informed consent documents from Vista Imaging Display from March 2006, as well as the complete emergency room records from such date. 2. Obtain an addendum opinion from an appropriate VA examiner in regard to the Veteran's § 1151 claim. The record and a copy of this Remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the medical opinion. Following a review of the record, the examiner should address the following inquiries: (A) Did the Veteran incur an additional disability as a result of the left eye PCP procedure performed at the VAMC in Richmond, Virginia, on March 29, 2006, to include a permanent loss of vision and ongoing symptoms, to include pain, distorted vision and watering eyes? If so, please identify the additional disability (or disabilities). (B) If the answer to (A) is yes, is it at least as likely as not (i.e., a 50 percent or greater probability) that such additional disability is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the March 29, 2006, PCP procedure and/or providing follow up treatment? (Continued on the next page) (C) If the answer to (A) is yes, is it at least as likely as not (i.e., a 50 percent or greater probability) that such additional disability is proximately due to an event not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed in informed consent procedures), OR was it an ordinary known risk of the surgery performed? In offering such opinions, the examiner should consider the statement that the Veteran moved during the procedure due to back spasms and also consider and address whether the Veteran's back spasms were, or should have been, considered by VA prior to the Veteran undergoing the PCP procedure. Tracie N. Wesner Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.