Citation Nr: A25040407 Decision Date: 05/02/25 Archive Date: 05/02/25 DOCKET NO. 240118-519109 DATE: May 2, 2025 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for liver laceration is denied. Entitlement to service connection for amblyopia, left eye and intraocular lens is denied. FINDING OF FACT 1. There is no objective evidence that the Veteran was exposed to any carelessness, negligence, lack of proper skill, error in judgment or a similar fault on the part of the VA in rendering medical care, nor that the Veteran's liver laceration was caused or worsened by any action of VA. 2. The evidence of record persuasively weighs against finding that amblyopia, left eye and intraocular lens which preexisted service, was aggravated by or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for liver laceration have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. 2. The criteria for service connection for amblyopia, left eye and intraocular lens have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Marine Corps from November 1960 to November 1964. The rating decision on appeal was issued in January 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury, and; (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1151 Eligibility for liver laceration Under the provisions of 38 U.S.C. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death 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. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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 hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361 (d). The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for liver laceration. Specifically, he reported that his conditions are a result of gall bladder surgery at the VA in August 2020. However, the evidence does not establish that the Veterans liver laceration was a result of VA fault or an event not reasonably foreseeable. The August 2023 VA examiner stated that after review of the record including the surgical reports, the Veteran does not have a current disability as it has resolved. The November 2023 VA examiner wrote that it was confirmed via the VA notes that the Veteran had a liver laceration during removal of gallbladder, "there is a very small, contained liver laceration from the cholecystectomy with a contained subcapsular hematoma." There are no current findings or complications. Condition has since resolved. The examiner further noted that while it clearly was the fault of the surgeon during the procedure, information from Johns Hopkins notes that possible complications of the procedure are that the surgical instruments used to remove the gallbladder can also injure surrounding structures, such as the intestine, bowel, liver and blood vessels, but that it can be repaired during the procedure and in this case it was. The Board finds that the aforementioned VA examiners opinions are adequate, persuasive, and entitled to significant probative value in this case. Consequently, the competent medical and other evidence of record is against a finding the Veteran's liver laceration were a result of VA fault or an event not reasonably foreseeable. The Board considered the Veteran's statements made in support of his claim. In certain instances, lay statements may serve to support findings related to the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377. However, the Veteran is not competent to state that any residual symptoms or problems are etiologically related to any VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical etiological opinion. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to compensation under 38 U.S.C. § 1151 for liver laceration is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Amblyopia, left eye and intraocular lens The Veteran contends that his amblyopia, left eye and intraocular lens was worsened due to his time in service. The Veteran is service connected for mechanical ptosis, right eyelid from September 16, 2021. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence can consist of the Veteran's own admissions of a pre-service disability. Horn v. Shinseki, 25 Vet. App. 231, 237 (2012). If there is clear and unmistakable evidence to show that the Veteran's disability was both preexisting and not aggravated by service, then the Veteran is not entitled to service-connected benefits for the preexisting condition. Wagner, 370 F.3d at 1096. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Independent medical evidence is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When clear and unmistakable evidence demonstrates no permanent increase in disability during service, the presumption of aggravation is not applicable. Maxson v. West, 12 Vet. App. 453, 459-60 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated the disability so that it is no more disabling than it was at entry into service. Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). While the Veteran's entrance and exit examinations do not note this condition, the Veteran has stated throughout the recently medical examinations of record that this condition preexisted his time in service. Additionally, there are 1961 and 1962 medical board opinions in which the medical board determined his vision and his fitness to serve in a limited capacity. The report completed during that time included the examinations of two private physicians who found the Veteran's left eye was 20/60 and the military examiner who found the Veteran's eye was 20/40, which he found to be an improvement of the symptoms. While the amblyopia, left eye and intraocular lens was not noted the enlistment medical examination, the presumption of soundness as to amblyopia, left eye and intraocular lens on entry into service has been rebutted, and he is deemed to have had a pre-existing amblyopia, left eye and intraocular lens disability. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). As noted above, when a condition preexisted service the Board must determine if that condition was aggravated by the Veteran's service. The Veteran underwent a VA examination specifically for his eyes in August 2022. The examiner stated that the Veterans amblyopia, left eye and intraocular lens, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this opinion, the examiner provided the following rationale: the veteran began seeking medical attention for his eyes in childhood and received patching therapy to help with vision recovery. Therefore, the examiner found no direct or indirect service connection. The VA obtained an opinion in October 2022 in which the examiner provided an aggravation opinion. The examiner opined that amblyopia is an unexplained decreased visual acuity with no organic or refractive etiology. As the Veteran was diagnosed prior to service and does not show worsening during service, it was not aggravated by service. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the conditions on appeal, service connection may nonetheless be established by competent evidence, including medical evidence and opinions, that demonstrates a relationship between the Veteran's symptoms and service. Nevertheless, the competent evidence fails to establish a relationship between active duty and the Veteran's current symptoms. In this regard, the Board places significant probative value on the opinion from the August 2022 and October 2022 VA examiners that performed a detailed review of the Veteran's service and medical treatment records. As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his left eye and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as pain, he is not competent to provide a nexus opinion in this case. These issues are also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the Veterans statements, by themselves, are insufficient to establish service connection. (Continued on the next page) ? Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for amblyopia, left eye and intraocular lens is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Martin T. Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alkhatib, Chelsea A. 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.