Citation Nr: 1761153
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 11-18 102 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to service connection for an eye disorder.

2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a cognitive disorder (also claimed as brain damage, falling down, dizziness, headaches, losing balance, and memory loss).

3. Entitlement to compensation under 38 U.S.C.A. § 1151 for eye problems other than horizontal diplopia.

WITNESSES AT HEARING ON APPEAL

Appellant and his father

ATTORNEY FOR THE BOARD

N. T. Werner, Counsel
INTRODUCTION

The Veteran served on active duty with the United States Army from December 1973 to August 1975.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In March 2013, the Veteran and his father testified at a hearing before the undersigned and a transcript of that hearing has been associated with the claims file. In September 2013 and February 2016, the Board remanded the above issues for additional development. In April 2017, the Veteran’s attorney withdrew his representation. Given the below decision granting service connection for an eye disorder diagnosed as horizontal diplopia the Board has recharacterized the Veteran’s remaining 1151 claim as it appears above.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The claim for compensation under 38 U.S.C.A. § 1151 for eye problems other than horizontal diplopia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. An eye disorder diagnosed as horizontal diplopia is due to the medications the Veteran took for his service-connected psychiatric disorder.

2. The preponderance of the evidence of record shows that the Veteran did not develop a cognitive disorder due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA.

CONCLUSIONS OF LAW

1. The criteria for establishing service connection for an eye disorder diagnosed as horizontal diplopia have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

2. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for a cognitive disorder are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.361 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Service Connection Claim

The Veteran contends, in essence, that an eye disorder is related to, among other things, the medication he took for his service-connected psychiatric disorder.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998).
Initially, the Board notes that the Veteran is service-connected for schizophrenia. Moreover, the record shows the Veteran being diagnosed with horizontal diplopia. See, e.g., VA examination dated in December 2017. Moreover, the December 2016 VA examiner opined that the Veteran’s horizontal diplopia was due to the cumulative effect of the medications he took to treat his service-connected schizophrenia. Specifically, the December 2016 VA examiner opined that ‘Horizontal diplopia’ first documented on 31 Oct 2002 in previously cited Neurology note (see VistaWeb) at least as likely as not related to Amitriptyline (SC Schizoaffective disorder) use at that time. Per medical literature, this medication has been associated with diplopia symptoms in some patients. In other words, veteran is no longer able to consistently fuse his eyes, not due to any one specific Schizoaffective disorder medication, but the combination of them.

The December 2016 VA examiner’s opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).

Thus, based on the totality of the medical evidence and resolving reasonable doubt in the Veteran’s favor, the Board finds that the most probative evidence of record shows that the his eye disorder, diagnosed as horizontal diplopia, is due to the medication he took to treated his service-connected psychiatric disorder. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Owens. As such, service connection is warranted.

The 38 U.S.C.A. § 1151 Claim

The Veteran claim’s, in substance, that he is entitled to compensation under 38 U.S.C.A. § 1151 for a cognitive disorder manifested by brain damage, falling down, dizziness, headaches, losing balance, and memory loss due to his VA treatment. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Under the current provisions of 38 U.S.C.A. § 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 three (3) 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.A. § 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).

With the above criteria in mind, the Board most recently remanded the appeal in February 2016 to obtain a needed opinion that addressed the above Section 1151 criteria. The December 2016 VA examiner after a review of the record on appeal and controlling medical literature thereafter opined, among other things, that “[i]t is less likely than not (less than 50% probability) that any additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel.” This medical opinion is not contradicted by any other medical opinion of record. See Colvin. As to the lay claims from the Veteran and others, including from his father at the March 2013 personal hearing, that this disability was caused by VA negligence in his treatment, the Board finds the above medical opinion more probative because a healthcare professional has more expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).

Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s cognitive disorder is not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in his treatment. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Therefore, because the failure to meet any one of the Section 1151 criteria is fatal to the Veteran’s claim, the Board finds that the claim for compensation under 38 U.S.C.A. § 1151 for a cognitive disorder is denied.

ORDER

Service connection for an eye disorder diagnosed as horizontal diplopia is granted.

Compensation under 38 U.S.C.A. § 1151 for a cognitive disorder is denied.

REMAND

As to the claim for compensation under 38 U.S.C.A. § 1151 for any eye disorder other than horizontal diplopia, the Board remanded this issues in September 2013 and February 2016 to obtain needed medical opinions. However, the Board does not find the August 2014 and December 2016 VA examinations adequate because neither provided the requested Section 1151 opinions. Therefore, the Board finds that another remand to obtain this needed opinion is required. See 38 U.S.C.A. § 5103A(d) (West 2014); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance).

While the appeal is in remand status, outstanding treatment records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2014).

Accordingly, this issue is REMANDED to the AOJ for the following actions:

1. Associate with the claims file all post-October 2017 treatment records from the Tampa/Bay Pines VA Medical Center.

2. After obtaining authorizations from the Veteran, associated with the claims file any outstanding private treatment records.

3. Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge any current eye disorder other than horizontal diplopia due to his treatment at VA. Provide them a reasonable time to submit this evidence.

4. Schedule the Veteran for an eye examination. The claims folder shoulder be made available to and reviewed by the examiner. After a review of the claims file, the examiner should provide answers to the following questions:

(a) As to each eye disorder other than horizontal diplopia (i.e., refractive error, dry eye syndrome, cataract, and strabismus/intermittent exotropia), is it at least as likely as not that the Veteran has additional disability because of the treatment provided at VA, including the medication he received?

(b) As to each eye disorder other than horizontal diplopia that the Veteran has additional disability because of the treatment provided at VA, is it at least as likely as not that it was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment?

(c) As to each eye disorder other than horizontal diplopia that the Veteran has additional disability because of the treatment provided at VA, is it at least as likely as not that it was not foreseeable?

In providing the requested opinions, the examiner should comment on the Veteran’s competent lay reports.

The examination report must include a complete rationale for all opinions expressed.

If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

5. Then, after conducting any further development deemed warranted, adjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran a supplemental statement of the case (SSOC) that gives him notice of all the evidence added to the record since the October 2017 SSOC and gives him an appropriate opportunity for response before returning the appeal to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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