Citation Nr: 0001947 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 95-28 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability as a result of surgical treatment at a Department of Veterans Affairs facility in September 1987. ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from March 1944 to November 1945. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1995, in which the Washington, D.C., Regional Office (RO) of the Department of Veterans Affairs (VA) denied the veteran's claim of entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability as a result of surgical treatment at a VA medical facility in September 1987. The veteran subsequently perfected an appeal of that decision. In a June 1997 Board decision, this case was remanded to the RO for additional development. Upon completion of this development the RO again denied the veteran's claim. Accordingly, this case is properly before the Board for appellate consideration. FINDINGS OF FACT 1. In September 1987, the veteran was treated at a VA medical facility for detachment of the left retina, and surgery was performed on September 25, 1987. 2. In March 1988 the veteran's left retina was noted to be totally detached and vision in the left eye was limited to light perception. 3. The evidence of record does not establish that the veteran's total detachment of the left retina was caused by or related to treatment he received at a VA medical facility in September 1987. CONCLUSION OF LAW The veteran's claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as a result of a lack of appropriate treatment at a VA facility in September 1987 is not well-grounded. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a claim filed in March 1995, the veteran asserts that on September 25, 1987, at a VA medical facility, he was operated on to repair a detached left retina. He contends that when the bandages were removed from his eye after the operation, on September 27, 1987, that he had complete loss of vision in the left eye. He additionally contends that in November 1987 his vision was noted to be zero and that in March 1988 records show that his retina was totally detached. With regard to any assertion that this was the natural progression of a pre-existing eye condition, he contends that his right eye has also had surgery to repair a detached retina and that he still has adequate vision in this eye. Under 38 U.S.C.A. § 5107(a) (West 1991), all claimants seeking compensation, including those seeking compensation under 38 U.S.C.A. § 1151, have the initial burden of showing that their claim is well grounded. Jimison v. West, 13 Vet. App. 75, 77 (1999). For a claim filed under 38 U.S.C.A. § 1151, prior to October 1, 1996, to be well grounded, the appellant must show: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Id. The laws and regulations in effect at the time the veteran filed his claim provided that a veteran was entitled to additional compensation if he or she was injured as a consequence of hospitalization or treatment, and such injury or aggravation resulted in additional disability. 38 U.S.C.A. § 1151 (West 1991). Specifically, in pertinent part, 38 U.S.C.A. § 1151 provided that: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, . . . and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991). The regulation implementing that statute, 38 C.F.R. § 3.358, provided, in pertinent part: (c) Cause. In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of . . . hospitalization, medical or surgical treatment . . . , the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of . . . hospitalization, medical or surgical treatment, . . . . (3) Compensation is not payable for the necessary consequences of medical or surgical treatment . . . properly administered with the express or implied consent of the veteran . . . "Necessary consequences" are those which are certain to result from, or were intended to result from, the . . . treatment administered. The Board notes that in 1994, the United States Supreme Court affirmed decisions of the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) and the Federal Circuit Court of Appeals, which had essentially found that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection and that the elements of fault or negligence were not a valid part of the implementing regulation. See Brown v. Gardner, 513 U.S. 115 (1994). In light of the Supreme Court's decision, the VA amended 38 C.F.R. § 3.358(c), the regulation implementing 38 U.S.C.A. § 1151, to eliminate the requirement of fault. Thus, where a causal connection existed and no willful misconduct was shown, and the additional disability did not fall into one of the listed exceptions, the additional disability would be compensated as if service connected. Id. Parenthetically, in response to Gardner, the statutory authority for the regulation was subsequently amended to again require fault on the part of the VA. See 38 U.S.C.A. § 1151 (West 1991 and West Supp. 1999). Nonetheless, cases filed prior to October 1, 1996, such as the veteran's, are governed by Gardner, and claimants are not required to show an element of fault on the part of VA. Jimison v. West, 13 Vet. App. 75, 77 (1999). Accordingly, the ultimate issue before the Board is whether the VA's treatment of the veteran in September 1987 for a detached left retina resulted in the veteran's subsequent total detachment of the left retina and resultant loss of vision in the left eye. Turning first to the medical evidence, the record shows that on September 15-16 1987, the veteran had visual acuity of 20/25 corrected in the left eye, with complaints of a black cloud in the superior field of his left eye. He was diagnosed with a retinal detachment in his left eye. It was noted in the veteran's reported medical history that he had a hole in the left retina which was repaired in June 1987 with cryotherapy. On September 25, 1987, the veteran underwent surgical procedures of a vitrectomy, scleral buckle, radial sponge, membrane pealing, cryopexy both internal and external and a gas fluid exchange of the left eye. The surgical report notes no problems and the veteran was determined to be in satisfactory condition at the conclusion of the surgery. Post-operative reports show that on September 26, 1987, the veteran complained of having a "ball" in his eye, but no air bubble was visualized on September 26 or 27, and the veteran reported a discontinuance of the discomfort on September 27. On September 28, 1997, examination of the left eye showed an air bubble and positive subretinal fluid, but the veteran's intraocular pressure was normal and his visual acuity of the left eye was reported as 20/200 uncorrected. On September 29, 1987, no air bubble was noted, but the subretinal fluid was still present and on September 30, 1987, the veteran's retina was noted to be flat, but with a possibly troublesome fold overlying the sponge. His visual acuity was 20/200. He was discharged to home with directions on how to care for his eye. The hospital summary report for his surgery notes the veteran's medical history, to include interscapular cataract extraction of the left eye in 1972. His post operative course was noted to be uneventful other than a mild intraocular pressure increase following surgery which was resolved with drug therapy. At the time of discharge the retina was noted to be flat with a concave fold of the retina overlying the sponge but no traction. Pinhole vision was noted to be 20/200. The next treatment record is from November 1987 wherein the veteran reported to the mental health clinic that his left retina had detached again the previous week and that the doctors wanted him to have surgery again the next day. The record contains no evidence that this surgery took place. A March 1988 treatment note shows that the veteran has total retinal detachment on the left with only light perception. This assessment is confirmed in subsequent medical evidence of record, with no change, including in a VA examination report dated in February 1995, which diagnoses phthisis, left eye, with loss of all useful vision, and failed detachment procedure, left eye. In November 1997, the claims file was forwarded to the Chief of Ophthalmology Services of the VA medical facility for review and an opinion as to whether the veteran's September 1987 surgery contributed to or caused his subsequent loss of vision of the left eye. After a detailed discussion of the evidence of record, the examiner concluded that he could not "state with any assurance that the surgery which was performed in September 1987 resulted in any additional loss of visual acuity." He further noted that no abnormalities of the macula or optic nerve which might limit vision were noted and indicated that the absence of follow-up notes prior to March 1988 prevent a more definite assessment. Additionally, he goes on to state that the "appearance" of the veteran's retinal detachment with the presence of fixed folds prior to surgery suggests "some degree of chronicity and the presence of early peri-retinal proliferation." This would place the veteran in a "somewhat higher risk category" for re-detachment, and "may represent a more proximal cause of [the veteran's] visual outcome." He also notes that if the veteran declined surgery for his "re- detachment he virtually guaranteed his subsequent loss of vision." Based on the evidence, the Board finds that the veteran has not provided any competent evidence to establish that he his current vision loss and total detachment of the left retina are causally related to the surgery performed on his left eye in September 1987 at the VA medical facility. The post- operative notes indicate some fluid, but the discharge notes contain no problems and do not support his contention that when the bandages came off he had no vision at all. Moreover, the November 1987 notation indicates that he had a re-detachment at that time, which would suggest an intervening event prior to his loss of vision. Most significant, however, is the November 1997 medical opinion which essentially concludes that the record does not permit a definitive conclusion that the veteran's surgery resulted in his loss of vision, and suggests alternate causes as more probable bases for his current loss of vision in the left eye. To support his claim, the veteran offers only his own lay opinion concerning a relationship between his current loss of vision and total detachment of the left retina and the September 1987 surgery. The mere contentions of the veteran, no matter how well-meaning and sincere, without supporting medical evidence, will not constitute a well- grounded claim. Moray v. Brown, 5 Vet. App. 463 (1993), Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran is not medically trained and, hence, is not qualified to offer a medical opinion attributing additional disability to VA care or hospitalization. With regard to the veteran's assertion that his current left eye blindness is related to the September 1987 surgery because he had similar surgery on the right eye without any resultant blindness, the Board finds that this argument also does not provide a medical basis for relating his current left eye disability with his September 1987 surgery. There is no indication of record that the treatment and history of his right eye has any bearing on the etiology or causation of his current left eye blindness. Again, as there is no competent evidence of a relationship between his right and left eye treatments, the veteran is not entitled to compensation for such disability under 38 U.S.C.A. § 1151. Finally, the Board notes the veteran's repeated argument that he need not show negligence or fault on the part of VA in order to establish his claim and thus that the evidence of record is sufficient. While he is correct that fault is not required to establish his claim, the evidence still must contain medical evidence of a nexus between his current total retinal detachment with loss of vision and his 1987 VA treatment. As noted, no such medical evidence is in the record. Accordingly, despite the fact that fault is not required, the record does not establish the necessary elements for a well-grounded claim of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability claimed to be due to VA treatment in September 1987. Where a claim is not well grounded it is incomplete and no duty to assist attaches. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). However, where a claimant puts the VA on notice of the existence of evidence which would make the claim well grounded, the VA is obliged under 38 U.S.C.A. § 5103(a) (West 1991), to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). Unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, might make the claim well grounded. ORDER Compensation under 38 U.S.C.A. § 1151 for additional disability as a result of a lack of appropriate treatment at a VA facility in January 1986 is denied. JEFF MARTIN Member, Board of Veterans' Appeals