Citation Nr: 25005689 Decision Date: 04/25/25 Archive Date: 04/25/25 DOCKET NO. 02-11 134 DATE: April 25, 2025 ORDER Compensation under 38 U.S.C. § 1151 for right eye vitreous hemorrhage is denied. FINDING OF FACT The Veteran's right eye vitreous hemorrhage was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault as a result of VA treatment, nor was it the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for right eye vitreous hemorrhage have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1964 to May 1968 and from October 1984 to April 1988. In October 2024, the Board most recently remanded the current claim for additional development. Entitlement to compensation under 38 U.S.C. § 1151 for right eye vitreous hemorrhage. Under 38 U.S.C. § 1151, a veteran who suffers disability or death resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability... were service-connected" if the additional disability or death was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled or died as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability or death, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, 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 (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability or death must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361(c). 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). The proximate cause of the disability must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C. § 1151(a)(1)(A). 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 medical treatment proximately caused a veteran's additional disability; it must be shown that the medical or surgical treatment caused the veteran's additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical or surgical treatment without the veteran's informed consent. Id. Alternatively, the proximate cause of the disability may be an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. The record reflects that the Veteran developed floaters in his right eye and had significantly decreased vision. See June 2005 VA Treatment records. In January 2006, the Veteran was noted to have a vitreous hemorrhage of the right eye and was recommended for removal of the vitreous hemorrhage. In March 2006, the Veteran was provided an informed consent form, which was signed, witnessed and dated. In March 2006, the Veteran underwent a right eye vitrectomy, with possible lensectomy with implant. In March 2006, the Veteran was evaluated by a private physician for postoperative complications of his right eye. The private physician noted that the Veteran had vitreous hemorrhage in the right eye and underwent a vitrectomy at the VA Hospital in Birmingham with lens removal and air bubble placement. It was noted that the Veteran had some subsequent bleeding following the surgery and had a vitreous hemorrhage with a small hyphema. The private physician indicated that the Veteran should allow for a few weeks for the hemorrhage to clear. In April 2006, the Veteran received a lens implant. In June 2006, the Veteran's private eye doctor discussed with him coming off of Coumadin because hemorrhaging kept reoccurring. The private eye doctor indicated that the Veteran was seeing his VA doctor and would have him call to discuss coming off of Coumadin. The Veteran's VA treatment records from June 2006 indicate that the Veteran had been on Coumadin since 1999 due to a deep vein thrombosis in the leg and he was having recurrent bleeding in the eye. In December 2006, the Veteran underwent a VA examination to evaluate his right eye problem. At that time, the Veteran reported that his right eye disability was due to a botched right eye surgery that was performed by interns rather than a regular doctor. The examiner diagnosed the Veteran with right eye vitreous hemorrhage and explained that there was no indication of improper surgery by the VA medical center staff in the removal of blood from the vitreous right eye. The examiner noted the Veteran's contention that Vioxx given to him was the cause of the bleeding in his eyes. The examiner, however, concluded that the cause of the vitreous hemorrhage was the use of Coumadin for his venous thrombosis. The examiner noted that the Veteran's vision was restored to 20/25 in the right eye and the only problem he had was the loss of temporal visual field. The examiner, therefore, concluded that the Veteran's contentions were without merit. In May 2010, the Veteran underwent a vitrectomy with membrane peel and a fluid gas exchange. Following this surgery, the Veteran's visual acuity in the right eye improved to 20/50 +1. See August 2014 Third Party Correspondence. In January 2019, the Veteran provided a private medical statement from a physician that indicated he had three different operations on his right eye that caused him loss of eyesight and irritation. In February 2019, the Veteran was evaluated by a private eye doctor due to complaints of decreased vision that started about 1 month earlier. In May 2024, a VA examination was obtained to assess whether any VA treatment provider had been careless or negligent in their treatment with regard to the Veteran's right eye vitreous hemorrhage. The examiner acknowledged the Veteran's reports that VA was supposed to put a lens in, and they told his wife that they did not have a lens to put in. The Veteran indicated that he saw a private doctor to correct what was done wrong and he had a lot of scar tissue and macular hole that was closed. The Veteran also indicated that he was on Coumadin, and he was taken off pre-op for the first surgery, which resulted in needing a heart valve repair and stent. The examiner diagnosed the Veteran with right eye optic neuropathy, glaucoma, anisocoria, pseudophakia, chorioretinal laser scarring throughout retina. The VA examiner provided several opinions indicating that it was less likely as not (1) that the Veteran's right eye disorders were caused by or became worse as a result of VA treatment; (2) that the Veteran's right eye disorders were a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; and (3) that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner provided a thorough discussion of the Veteran's clinical history, explaining that the Veteran was first diagnosed with vitreous hemorrhage in 2003, and, prior to that, he was on Coumadin in 2002 to treat venous thrombosis. The Veteran was continuously diagnosed with vitreous hemorrhage, and he was seen for a surgical consult on February 6, 2006, where it was discussed with the Veteran that the provider would proceed with vitrectomy and possible intraocular lens and possible laser. On March 2, 2006, the informed consent was signed for vitrectomy with possible lensectomy and possible laser. On March 23, 2006, the Veteran underwent a pars plana vitrectomy and during the procedure a retinal defect was noted along with superior temporal arcade without subretinal fluid or full thickness retinal break. Since the lens was limiting the view a pars plana lensectomy was performed without difficulty. On March 24, 2006, the Veteran was discharged and there was no evidence of vitreous hemorrhage with 60 percent air-filled bubble with no evidence of retinal detachment or other eye trouble. In April 2006, the Veteran indicated that he was advised to see an attorney because his right eye surgery was not done correctly and was performed by a resident. The examiner noted that Coumadin was discontinued on March 19, 2006, and restarted on March 27, 2006. The examiner explained that when the Veteran first experienced the vitreous hemorrhage in 2004, the provider followed the standard of care regarding treatment with observation, since most vitreous hemorrhages resolve/clear up on their own without any intervention. Due to the chronicity, severity, and effect on acuity of the vitreous hemorrhage, the recommendation was a surgical consultation. The risk, benefits, and adverse effects were discussed with the Veteran regarding the March 23, 2006 surgery for vitrectomy with possible lensectomy and laser. The procedure was completed without complications, and the examiner highlighted the importance of noting that the Veteran was not taking Coumadin from March 19th to the 24th. On March 27, 2007, the Veteran presented for post-surgical complications and eye pain, and he had a secondary surgery to remove vitreous hemorrhage and place intraocular lens. The Veteran kept getting hemorrhages and, on June 6, 2006, the Veteran's private doctor recommended that he discontinue Coumadin. One month later, there was no more vitreous hemorrhage, and acuity was restored to 20/30 -1. The examiner explained that a lensectomy did not guarantee the placement of an intraocular lens. The examiner also explained that vitreous hemorrhages were the result of vascular disorder, trauma/injury, and medications, including anticoagulants such as Coumadin. The May 2024 VA examiner also provided an opinion indicating that it was at least as likely as not that the Veteran suffered from an additional disability (including lost vision and eye pain) caused by or that became worse as a result of Coumadin, not the Veteran's March 2006 surgery at a VA facility. The examiner, however, concluded that the additional disability did not result from the attending VA personnel's failure to follow the appropriate standard of care, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault and did not result from failure on the part of VA to timely diagnose or properly treat the disability. The examiner explained that the research showed that there was a 50 percent increased risk of retinal hemorrhages in patients taking Coumadin. The examiner noted that the Veteran was doing well post-op and, when he restarted Coumadin, he had a recurrence of the vitreous hemorrhage and hyphema. Once taken off Coumadin the vitreous hemorrhage resolved. The examiner indicated that having the vitreous hemorrhage led to the pars plana vitrectomy surgery and, during the surgery, a lensectomy was required to view a suspicious area in the retina which was treated prophylactically. The Veteran's private doctor indicated that they were optimistic that the Veteran would do well off Coumadin. The examiner also explained that the standard of care for vitreous hemorrhages was to monitor and not intervene as most resolve on their own. The examiner indicated that the history noted above for the Veteran's vitreous hemorrhage was the natural progression of the condition. As noted above, when the Veteran first experienced a vitreous hemorrhage in 2004, the provider followed the standard of care for treatment with observation. However, due to the chronicity of the Veteran's vitreous hemorrhage, the Veteran was scheduled for surgical intervention. The examiner noted that, during the surgery, the Veteran claimed that no lens was placed. The examiner indicated this was correct and a lensectomy did not guarantee the placement of an intraocular lens and the VA personnel followed the standard of care from the initial diagnosis until he was referred to a private physician. The examiner acknowledged the Veteran's contention that the VA medical provider erred because they prescribed Coumadin and failed to manage his medication level before and after his March 2006 surgery. The examiner explained, however, that the VA medical providers did not err because they prescribed Coumadin or because they failed to manage his medication level before or after surgery. In fact, they followed the appropriate protocol for stopping medication during surgery and restarting post-operatively. The Veteran was started on Coumadin due to history of venous thrombosis, which was the first line of treatment and research showed that some providers preferred to maintain treatment due to the benefits outweighing the risks of stroke and death. The Veteran was not on Coumadin during his surgery and was restarted due to the risk of thrombosis. The examiner explained that it was safe to assume that the prescribing providers believed that the benefits of continuing Coumadin and reducing thrombosis outweighed the risks of discontinuing the Coumadin and, if another medication could have been chosen prior to the initial hemorrhage, that would have been at the discretion of the Veteran's vascular specialists. In assessing the claim, the Board has considered the Veteran's assertion that VA medical professionals failed to exercise the degree of care that would be expected of a reasonable health care provider when they botched the March 2006 surgery and failed to put a lens in his eye during the surgery, and when the surgery was performed by a nurse practitioner/intern. See August 2014 and December 2018 Decision Review Officer (DRO) Hearing Transcript. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the VA providers exercise the degree of care that would be expected of a reasonable health care provider in performing the March 2006 surgery falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Notably, neither the Veteran, nor their agent, has submitted competent evidence indicating that the VA medical professionals failed to exercise the degree of care that would be expected of a reasonable health care provider in performing the March 2006 surgery. Further, the evidence of record reflects that the Veteran's March 2006 eye surgery was performed by a resident surgeon and there is no evidence that the resident surgeon committed any error. Accordingly, the Board assigns the Veteran's contention little to no probative value and they are outweighed by the more probative May 2024 VA medical opinion above. The Veteran also contended that his doctor told him that the VA botched his eye surgery, and he did not sign informed consent for the procedure. See August 2014 DRO Hearing Transcript and November 2021 Correspondence. Significantly, however, neither the Veteran, nor his agent, has submitted any private medical statement that the March 2006 VA surgery was botched. Moreover, the Veteran's treatment records do not include any statements from his private physician indicating that the March 2006 surgery was botched. Rather, the record reflects that, following the March 2006 VA surgery, the Veteran's private physician noted post-operative complications with bleeding following the surgery and vitreous hemorrhage with a small hyphema. The private physician indicated that the Veteran should allow for a few weeks for the hemorrhage to clear. The Board also notes that the Veteran's treatment records show that he in fact signed a consent form for his March 2006 VA surgery involving vitrectomy of the right eye with possible lensectomy with implant and possible laser. Accordingly, the Board assigns these contentions little to no probative value. Upon review of all the evidence of record, lay and medical, the Board has accorded great probative weight to the May 2024 VA medical opinions, which have clear conclusions and adequate medical explanations. There is no contrary medical opinion evidence of record. For these reasons, the Board finds that, although the Veteran may have experienced complications involving bleeding, pain, decreased vision, and recurrent vitreous hemorrhage, this did not result from carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable, and thus, does not constitute a qualifying additional disability under 38 U.S.C. § 1151. Furthermore, the evidence does not indicate that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Given the foregoing, the claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right eye vitreous hemorrhage must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.