Citation Nr: 22017006 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-56 791 DATE: March 23, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a left eye condition, also claimed as residuals of glaucoma surgery and loss of vision, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a lung condition, also claimed as chronic obstructive pulmonary disease (COPD), is denied. FINDINGS OF FACT 1. The Veteran's left eye blindness is a result of his glaucoma and Sarcoidosis, and the noncompliance in treatment and adhering to medication for the glaucoma, but not the result of an event not reasonably foreseeable, or the result of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 2. The Veteran's lung disorder began after using eyedrops prescribed by VA; however, competent medical evidence establishes that any additional lung disorder present is not the result of an event not reasonably foreseeable, or the result of any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSIONS OF LAW 1. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for a left eye condition, also claimed as residuals of glaucoma surgery and loss of vision, are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for a lung condition, also claimed as COPD, are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to March 1970. The matters on appeal come before the Board from an April 2015 rating decision. The Veteran provided hearing testimony before the undersigned in February 2020. A transcript of that hearing is within the record before the Board. The Veteran contends that he has additional disability to his left eye and his lungs due to VA care, in particular due to improper prescriptions and a delay in appropriate care. In April 2020 and September 2021, the Board remanded these claims in order to obtain adequate opinions addressing the Veteran's contentions. Those opinions have been obtained and the Veteran's appeal is now again before the Board. 1151 Eligibility In pertinent part, 38 U.S.C. § 1151 provides that compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. See VAOPGCPREC 40-97 (Dec. 31, 1997). For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and the proximate cause of the disability was: (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether additional disability exists, a veteran's condition immediately prior to 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 is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 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 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 diagnose and properly treat the disease or injury proximately caused the continuance or 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). 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). 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 the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability (see 38 C.F.R. § 3.361(c)); and that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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. 38 C.F.R. § 3.361(d)(1). Finally, the determination of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must persuasively weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Left Eye Condition The Veteran has claimed that compensation under 38 U.S.C. § 1151 is warranted due to additional disability he sustained as a result of VA treatment for his left eye. In particular, in July 2014, he submitted a statement suggesting medication prescribed to treat his lung aggravated his eye condition. In September 2014, he reported that when seen by his eye doctor for a consultation before a surgery, the eye doctor asked why he was on Prednisone and Albuterol for his breathing problems, as taking these medications with Cosopt drops for his eyes could kill him. He restated this assertion at his February 2020 Board hearing. He also suggested at this time that his eye surgery caused a worsening in his vision, and that his doctors have told him that the medicine he was taking for his lungs caused him to lose vision in his left eye. A medical opinion to address this claim was obtained in May 2020. A VA ophthalmologist addressed the question and included a summary of the Veteran's medical history. The examiner indicated vision shown in the records in 1968 was 20/30 in the right eye, and 20/25 in the left, corrected, with 20/20 vision, bilaterally, in 1970. The 2006 post-service diagnosis of glaucoma in both eyes was noted, along with advanced inferior arcuate scotoma in the left eye. The 2007 trabeculectomy in the left eye was noted with an indication that the Veteran was lost to follow up until 2009 when he presented with major vision loss in the left eye after he had stopped his prescribed eye drops. He had 20/20 vision in the right eye at that time, with 20/80 in the left. Endstage glaucoma was also noted as present at that time. The examiner noted he was on Cosopt and Travatan at that time with small central field, left eye. He was again lost to follow up between 2009 and 2011. By 2011, records showed the Veteran to be blind in his left eye. He was noted be on inhaled steroids for COPD and bronchitis, sarcoidosis and cavitary lung disease. He had Ahmed valve surgery in 2012 for the left eye, and in 2014 for the right. The examiner noted the Veteran had 20/20 vision in the right eye and was blind in the left eye in 2016/2017 records. Based upon this review of the records, the examiner determined that the Veteran's disability was not caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary. Rather, the examiner explained, the Veteran's disability was the result of aggressive glaucoma and the Veteran's inconsistent use of drops between 2007 and 2009 and his poor attendance to follow up exams between 2007 and 2011. The examiner indicated these were the major reasons for his vision loss in the left eye and the vision loss was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, or medical or surgical treatment. Likewise, the examiner indicated the disability was not due to any event not reasonably foreseeable. This same examiner also submitted another opinion also indicating that there is no evidence that the left eye disability manifested in service or due to any in service injury, event or illness. Because this VA examiner's primary opinion was based upon the period of time between 2007 and 2011, and the Board's prior remand required an examination and opinion related the Veteran's eye disability before and after his 2012 surgery, the Board remanded the claim for that opinion. The Veteran was again examined in October 2021. This examiner also summarized the Veteran's medical history with the addition of the notation of the emergency glaucoma surgery in 2012 and the condition afterward. Thus, this examiner did summarize and consider the record before and after the 2012 surgery. The examiner inquired as to whether the Veteran has Sarcoidosis and indicated that he denied having Sarcoidosis, but did say that he has issues with COPD. The examiner noted the Veteran's use of Cosopt for breathing issues and indicated that the complication of loss of vision is not a typical complication of this medication. There was an indication that Prednisone can cause complications that can make eye pressure spike and induce further glaucoma changes. The Veteran reported to the examiner that he began noticing changes in his vision and he was going to be scheduled for a surgery, but that he had a spike in the pressure in his eyes and had to have emergency surgery in December 2012. He indicated that the physician stopped his Cosopt. The examiner noted that the Veteran currently has drainage tubes in the anterior chamber of his eyes to control pressure. The examiner indicated that in the review of his notes and records, there are multiple contradictions from what was described on the day of the examination. In particular, the Veteran denied having Sarcoidosis on the day of the examination, but his notes on a September 2014 form show he knew of his Sarcoidosis diagnosis and also knew that use of a steroid is part of the complicating factor that caused reduced vision in his eye, not the Cosopt. The examiner noted the Veteran is using an antibiotic ointment in his eyes at bedtime. This examiner then submitted a separate opinion report, also in October 2021. The examiner indicated that the Veteran's record before and after the 2012 left eye surgery was reviewed, as well as the record before and after the prescription of Prednisone to treat his lung disorder. The examiner found the eye disability present before and after the surgery is glaucoma, and the proximate cause was "not (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing hospital care, medical or surgical treatment, or examination; nor, (b) an event not reasonably foreseeable. The disability resulted from the continued presence of pre existing glaucoma a chronic condition and with patient poor compliance with topical glaucoma drops which he was prescribed but not taking for 2 years as per record review." There are no additional records or opinions addressing the record or the question on appeal. The Board recognizes the Veteran reported pertinent information to be found in private eye doctor (Dr. T.) records, as well as with a Congressman who the Veteran reported was a pharmacist with relevant records. The Veteran submitted records from the private eye doctor in May 2020. These records do not include an opinion to be considered in this decision. The RO wrote to the Veteran in August 2020 and requested authorization from the Veteran to obtain additional medical records and also notifying the Veteran that he could request that the Congressman submit a statement in favor of the Veteran's claim. The Veteran did not respond. In August 2021, the Veteran's representative suggested that post-remand record development was still taking place. The Veteran and his representative have certainly had time to submit records and/or authorizations subsequent to the Board's September 2021 remand. Nothing, however, has been received and in February 2022, the Veteran's representative submitted a written brief presentation, which indicated that there was nothing to add. The Board finds VA's duty to assist the Veteran has been met in this regard. No additional remand is needed. In sum, the medical evidence of record pertinent to this claim shows that the Veteran's condition before and after the 2012 surgery was glaucoma and any worsening of his left eye vision was due to his Sarcoidosis and his noncompliance with treatment. To the extent the left eye vision has worsened, the evidence establishes that the additional disability was not a result of carelessness, negligence, lack of proper skill, error in judgment, or any similar instance of fault on VA's part, or a result of an event not reasonably foreseeable. For these reasons, the Board finds that the most persuasive medical evidence is against the claim and the criteria for compensation benefits under 38 U.S.C. § 1151 are not met. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. The appeal is denied. Lung Condition The Veteran contends that he had a longstanding lung problem, present since 1991, which was worsened by VA's prescription of improper medications to treat his eyes, and by VA's delay in providing him care. The Veteran alleges that the eyedrops prescribed by VA in 2009 are improper for people with respiratory problems. The Veteran provided several articles showing that these drops, which are shown as prescribed in the Veteran's VA treatment records, are not advised for people with lung problems. The Veteran also reported taking the drops from 2009 to 2011, having an onset of breathing issues in 2011, which did not exist previously, and seeing a private physician in 2011 and 2012, but being unable to be seen by a VA physician until 2014. He has also suggested that this delay in care has worsened his lung condition. The Veteran was afforded a VA examination in March 2015. The examiner confirmed the presence of sarcoidosis since 1991, COPD since 2011 and MAC pulmonary infection since 2014. This examiner, however, did not provide any opinion to assess the Veteran's claim under the criteria required to establish compensation under 38 U.S.C. § 1151. Because the appropriate opinion was not obtained, the Board remanded the matter in April 2020. The Veteran was then afforded a VA examination in May 2020. The examiner confirmed that that all records were reviewed from the Veteran's service through May 2020. The examiner indicated that Timolol and Cosopt, the eyedrops prescribed by VA for his eye condition, contain beta blockers, which, if absorbed into the body through the tissues of the eye and the tear ducts, may induce shortness of breath in some susceptible individuals in at least two ways. First, those with a history of asthma or other respiratory disorders can experience wheezing and shortness of breath. Also, bronchoconstriction can occur, especially when non-selective beta blockers are administered to asthmatic patients. Therefore, the examiner concluded, beta blockers are contraindicated in patients with asthma or COPD. The examiner noted that COPD is a condition due to emphysema (damage to the air sacs in the lungs) and chronic bronchitis (chronic inflammation of the airways). The examiner explained that beta blockers do not cause damage to the air sacs in the lungs and chronic inflammation; therefore, it is less likely than not that the Veteran's lung condition, claimed as COPD, was due to or the result of the left eye condition. As was noted in the September 2021 Board remand, the examiner did not consider the Veteran's report of beginning the eye drops in 2009 and beginning lung related symptoms in 2011, and did not consider the articles submitted by the Veteran, or his contention that there was an inappropriate delay in treatment between 2011 and 2014. Moreover, the May 2020 opinion is internally inconsistent. The examiner noted that the eyedrops taken by the Veteran can induce shortness of breath and indicated that beta blockers are contraindicated for patients with asthma or COPD, but then concluded that the Veteran's lung condition is not the result of his left eye condition. Thus, the Board remanded the matter for an adequate opinion. The Veteran again underwent examination in October 2021. The examiner noted the most recent CT scan of the chest from June 2020, which showed cavitary MAC-symptomatically stable; pulmonary sarcoidosis; and COPD. In a separate opinion report, the examiner summarized the Veteran's history. The examiner noted the Veteran's private treatment records, which show he began taking his brother's Cosopt in 2009 and that he was prescribed Travatan in March 2009. The lack of follow up between 2009 and 2011 was noted. Coughing attacks began to be noted in the record in 2011. The examiner indicated a complete review of the record, to include the conflicting medical evidence. Based on a review of the record and a review of medical literature, the examiner noted that there are several common side effects of Cosopt, however lung complication is not one. The examiner recognized the Veteran's report of starting the eye drops in 2009 and having an onset of lung symptoms in 2011 and his contention that there was an inappropriate delay in treatment between 2011 and 2014. The examiner indicated that, although the eyedrops (Timolol and Cosopt) contain beta blockers that may cause bronchoconstriction if absorbed into the body through the tissues of the eye and tear ducts, the Veteran's records do not show any consultation or treatment that would indicate that his pulmonary condition aggravates every time he applies the eyedrops. The examiner indicated review of pulmonary function tests (PFTs) done in June 2012 and again in October 2021 and noted that they show severe obstruction without significant bronchodilator response, which, the examiner noted, is indicative that his lung condition is a sequela of the sarcoidosis, which affects the lung alveoli and does not respond to beta blockers. Based upon these factors and the review of the evidence and medical history, the examiner concluded that any additional disability of the lungs experienced by the Veteran following his use of the eyedrops prescribed by VA, was not due to 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; and was not an event not reasonably foreseeable. As to whether any additional disability was due to a delay in treatment between 2011 and 2014, the October 2021 examination report discusses evidence within that time frame. The record does not include any attempted treatment that was denied to the Veteran in the timeframe alleged. In fact, in September 2014, the Veteran submitted copies of VA treatment records dated in 2012. There is no indication that he attempted to be treated at any time with treatment denied. Neither of the VA examiners in this case have suggested there is any additional disability to the lungs as a result of any delay in care. No additional opinion is needed in this regard. There is no additional evidence of record relevant to this claim in the claims file. In sum, the medical evidence of record shows that the Veteran did begin using eyedrops for his glaucoma, which were prescribed by VA and later begin having issues with his breathing, which is documented in the record. However, a competent medical professional has examined the type of breathing issues experienced by Veteran, as shown in diagnostic reports, and concluded that there is no evidence of bronchodilator response, which, according to the examiner, is the type of impact that would be experienced if the beta blockers were impacting the Veteran's lung condition. Thus, to the extent that the Veteran does have the addition of a lung disorder after he began using VA prescribed eyedrops, the competent medical evidence shows that any onset of a lung disorder was not a result of carelessness, negligence, lack of proper skill, error in judgment, or any similar instance of fault on VA's part, or a result of an event not reasonably foreseeable. For these reasons, the Board finds that the most persuasive medical evidence is against the claim and the criteria for compensation benefits under 38 U.S.C. § 1151 are not met. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. The appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.