Citation Nr: 0005287 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-30 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for additional right eye disability as a result of VA treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In a September 1999 decision, the Board remanded the claim to the RO for further development. That development was completed and the claim has been returned to the Board. FINDINGS OF FACT 1. Prior to VA phacoemulsification of a cataract of the veteran's right eye in October 1992, the chronic open angle glaucoma was controlled with medication. 2. Following the October 1992 VA surgery, the intraocular pressure in the right eye became markedly higher than in the left eye and could not be controlled by medications; the medical evidence establishes that decreased right eye visual acuity was due to exacerbation of chronic open angle glaucoma due to retained lens material following the October 1992 VA surgical procedure. CONCLUSION OF LAW The veteran is entitled to compensation under 38 U.S.C.A. § 1151 for aggravation of glaucoma following an October 1992 VA surgical procedure. 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the law, where a veteran sustains a disease or injury or aggravation of an existing disease or injury due to VA training, hospitalization, medical treatment, surgical treatment, or examination, and such injury or aggravation results in additional disability to or the death of the veteran, disability or dependency and indemnity 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 & Supp. 1999). Compensation under 38 U.S.C.A. § 1151, however, is not payable when an additional disability results from the natural progression of an underlying disability. 38 C.F.R. § 3.358(b)(2) (1998); Brown v. Gardner, 115 S.Ct. 552, 556 n.3 (1994) (Gardner). For claims filed under 38 U.S.C.A. § 1151 prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Gardner, 115 S.Ct. 552 (1994); but see 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) (amended to require showing of negligence or fault for recovery for claims filed under 38 U.S.C.A. § 1151 on or after October 1, 1997). Although the veteran need not show that additional disability resulted from fault or negligence in treatment, the veteran must still establish that the claimed additional disability is present and did, in fact, result from VA treatment. 38 C.F.R. § 3.358(c)(1)-(c)(2) (1998). In this case, the evidence reflects that the veteran underwent phacoemulsification of a right eye cataract at a VA facility in October 1992. The preoperative records reflect that the veteran had a history of chronic open angle glaucoma. The veteran's preoperative ophthalmologic examination disclosed visual acuity, uncorrected, of 20/80 in the right eye and 20/70 in the left eye. That examination also noted that the veteran had chronic open angle glaucoma (COAG) which was controlled with medications. In December 1992, the veteran's right eye intraocular pressure was found to be increased, and the veteran complained blurring of vision. He was admitted for management of the increased intraocular pressure in the right eye. The admission diagnosis was status post phacoemulsification with retained nuclear material and increased intraocular pressure (IOP). Although the veteran's right eye IOP decreased during the VA hospitalization, in early January 1993, the right eye IOP had again risen to 42, compared to 16 in the left eye. The veteran was admitted, and underwent a second right eye surgery, pars plana vitrectomy (PPV), performed to remove retained nuclear debris. Further treatment, involving three surgical stages, was initiated. The veteran was readmitted in March 1993 for further right eye procedures. The preoperative evaluation in early March 1993 stated that the veteran had persistent increase in right eye IOP and extensive optic nerve cupping and well as decreased visual acuity secondary to phacoemulsification. Visual acuity was 20/100 and IOP was 21. The assessment in early March noted that the veteran's preexisting glaucoma was exacerbated by retained lens material, with only partial success following PPV, in that control of IOP was "marginal/inadequate" on maximal medications. The veteran was advised that more aggressive treatment was required, although there was risk of end-stage glaucoma and loss of vision. Following a final right eye surgical treatment, in mid-March 1993, the clinical records reflect an assessment that the secondary glaucoma was though to be "doing well" after completion of the planned treatment. On VA examination conducted in August 1996, the veteran's right eye uncorrected near and distance vision was 20/400, corrected to 20/40 for near vision, and to 20/150 for far vision. His left eye uncorrected, was 20/70 for near vision and 20/40 for distance vision; corrected left eye vision was 20/40 for near vision and 20/30 for distance vision. The examiner concluded that the veteran had end-stage glaucoma in the right eye and advanced glaucoma in the left. The examiner noted the veteran's assertion that right eye cataract extraction "made his glaucoma worse." The examiner opined that the etiology of the veteran's right eye disorder was "difficult to determine" but he believed that the veteran's eye surgery went fine, but that the veteran's glaucoma progressed despite best efforts. The evidence of record reflects that the veteran's right eye intraocular pressure was controlled with medication at the time of a right phacoemulsification in October 1992. Following that procedure, IOP in the right eye could not be adequately controlled. The treating VA physicians determined that retained lens material had exacerbated the veteran's glaucoma, and further surgical procedures were required. The evidence establishes that the veteran received all surgical care for a right eye cataract, as well as post- operative care for complications of that procedure, from VA. Prior to the October 1992 VA surgical procedure, the veteran's right eye and left eye uncorrected visual acuity was essentially equivalent; recent examination discloses significant changes in the right eye vision, both uncorrected and corrected, without significant change in the left eye vision. The veteran now has end-stage glaucoma in his right eye. The evidence contradicts a finding that end-stage glaucoma was present prior to the 1992 VA treatment. The examiner who conducted the August 1996 VA examination opined that the veteran's current right eye vision impairment represented natural progression of pre-existing glaucoma, and was not related to VA cataract removal. However, that examiner did not comment on the veteran's post-operative course following the 1992 right eye cataract removal. The examiner who conducted the 1996 examination did not reference review of the clinical records of the veteran's treating medical providers at that time, and did not comment on their conclusions. The clinical notes of the providers who treated the veteran following the 1992 VA right eye procedure establish that those physicians attributed exacerbation of the veteran's right eye glaucoma to the VA surgical procedure. Of record are opinions of several VA physicians indicating that the veteran incurred exacerbation of glaucoma in the right eye following a 1992 VA surgical procedure on the right eye. As the 1996 opinion does not appear to reflect review of the relevant VA clinical records, the Board finds that 1996 opinion of less persuasive weight than the prior clinical records. The preponderance of the evidence establishes that the veteran incurred aggravation of pre-existing right eye glaucoma following VA surgical treatment. Additionally, although there is no evidence establishing VA fault or negligence as to that procedure, the Board notes that there is no opinion of record that such result was a necessary outcome of the right eye surgery, As the veteran filed his claim prior to October 1997, he is not required to establish fault or negligence in VA care in October 1992 to establish entitlement to compensation under 38 U.S.C.A. § 1151. The preponderance of the clinical evidence establishes that the veteran incurred an "additional disability," as shown by diagnoses of exacerbation of glaucoma, and establishes that the disability caused by that exacerbation is currently present. The Board therefore finds that the veteran is entitled to compensation for aggravation of glaucoma under the statutory provisions in effect at the time he filed his claim. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for aggravation of glaucoma is granted. TRESA M. SCHLECHT Acting Member, Board of Veterans' Appeals