Veteranclaims’s Blog

March 9, 2020

Single Judge Application; “Monfococal IOL” cataract lens; Abbott lens with model number ZA9003; those lenses “should not be placed in the ciliary sulcus”; lens prolapsed into the posterior chamber of the eye;

Filed under: Uncategorized — veteranclaims @ 9:09 pm

from decision below:

“The problem is that it is clear to us that the Board did not address one of his arguments.
Both at his hearing, R. at 185, and in written correspondence to the Board, R. at 27, Mr.
Jardine argued that his doctor’s decision to put the lens in his sulcus contradicted the manufacturer’s warning that it be placed only in the capsular bag. To bolster his argument, the veteran submitted the printout of a website which describes “Monfococal IOL” type of lens used in patients post cataract extraction surgery. R. at 227-28. The printout tells us that those lenses “should not be placed in the ciliary sulcus.” Id. And it also suggests that the product name of this lens as well as all other products described in the document are owned by Abbot Laboratories. R. at 229.
But there is more. The veteran submitted another document identifying an Abbot
Monofocal IOL lens by model number—ZA9003—and describing certain adverse events. This document appears significant because VA medical records show that the lens that VA put in the veteran’s eye is an IOL lens manufactured by Abbott with the model number ZA9003. R. at 1380.
And the surgical report tells us that when the doctor put this lens into the sulcus “the lens prolapsed into the posterior chamber of the eye out of the surgeon’s reach.” R. at 1437.
On its face, this evidence raises some questions, chief among them, should a doctor have
tried to put Abbot lens ZA9003 in the veteran’s sulcus? At minimum, that is the question we read the veteran to be raising, Attachment to Appellant’s Informal Brief at 4-5, admittedly after giving it the sympathetic reading we afford to briefs from lay individuals. See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). Yet the Board did not answer this question despite having it brought to its
3
attention. Nor is there an answer in the medical opinions.

=================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6912
ELROY J. JARDINE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

FALVEY, Judge: Self-represented Navy veteran Elroy J. Jardine appeals an August 14,
2018, Board of Veterans’ Appeals decision denying compensation under 38 U.S.C. § 1151 for an additional disability resulting from VA medical treatment. The appeal is timely; the Court has jurisdiction to review the Board decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Mr. Jardine has a disability stemming from VA surgery. We are asked to review whether
the Board clearly erred and provided inadequate reasons or bases when it found that VA care was not the proximate cause of his disability. Because the Board failed to address Mr. Jardine’s contention that his VA doctor implanted a lens against the manufacturer’s directions, we will set aside the Board decision on appeal.
I. ANALYSIS
Mr. Jardine served from September 1970 to August 1974. On November 15, 2011, he
underwent VA cataract extraction surgery on his left eye. R. 1437-38. This is the surgery that Mr.
Jardine says caused his current disability. VA agrees. R. at 9. But that is not the end of the inquiry.
Under section 1151, VA will compensate a veteran for a disability proximately caused by VA
2
hospital care or surgical treatment. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361 (2019). Proximate cause
is shown when the disability results from either (1) the carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical
treatment, or (2) “an event” that is “not reasonably foreseeable.” 38 U.S.C. § 1151(a); 38 C.F.R.
§ 3.361(d)(1). Thus, the issue is whether VA surgery was the proximate cause of Mr. Jardine’s
disability. This is where the parties are at odds.
Mr. Jardine assails the Board decision based mostly on the same arguments he raised to the
Board. Admittedly, there are many, and several question factual determinations made by the
Board. Ordinarily, expressing disagreement with how the Board weighed the evidence would not
lead to a victory for the appellant absent a showing of clear error. See Owens v. Brown, 7 Vet.App.
429, 433 (1995) (the Board is responsible for assessing the credibility and weight of the evidence
and the Court may overturn the Board’s decision only if it is clearly erroneous). The problem is that it is clear to us that the Board did not address one of his arguments.
Both at his hearing, R. at 185, and in written correspondence to the Board, R. at 27, Mr. Jardine argued that his doctor’s decision to put the lens in his sulcus contradicted the manufacturer’s warning that it be placed only in the capsular bag. To bolster his argument, the veteran submitted the printout of a website which describes “Monfococal IOL” type of lens used in patients post cataract extraction surgery. R. at 227-28. The printout tells us that those lenses “should not be placed in the ciliary sulcus.” Id. And it also suggests that the product name of this lens as well as all other products described in the document are owned by Abbot Laboratories. R. at 229.
But there is more. The veteran submitted another document identifying an Abbot
Monofocal IOL lens by model number—ZA9003—and describing certain adverse events. This document appears significant because VA medical records show that the lens that VA put in the veteran’s eye is an IOL lens manufactured by Abbott with the model number ZA9003. R. at 1380.
And the surgical report tells us that when the doctor put this lens into the sulcus “the lens prolapsed into the posterior chamber of the eye out of the surgeon’s reach.” R. at 1437.
On its face, this evidence raises some questions, chief among them, should a doctor have tried to put Abbot lens ZA9003 in the veteran’s sulcus? At minimum, that is the question we read the veteran to be raising, Attachment to Appellant’s Informal Brief at 4-5, admittedly after giving it the sympathetic reading we afford to briefs from lay individuals. See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). Yet the Board did not answer this question despite having it brought to its
3
attention. Nor is there an answer in the medical opinions.
And in any case, the Court may not answer it in the first instance.
That’s because, as finder of fact, it is the Board that has the duty to weigh the evidence in
the first instance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). And this
Court’s job is to review the Board’s weighing of that evidence. See Deloach v. Shinseki, 704 F.3d
1370, 1380 (Fed. Cir. 2013). But here, there are no findings for us to review. The Board is also
required to support its decision with a written statement of the reasons or bases that is
understandable by the claimant and facilitates review by this Court. See 38 U.S.C. § 7104(d)(1).
Allday v. Brown, 7 Vet.App. 517, 527 (1995). And here there are no reasons or bases addressing this issue.
The bottom line is, when it comes to whether the VA doctor used the lens against the
manufacturer’s recommendations, the Board made no findings and it provided no explanation. It
simply failed to notice the issue. Thus, we will set aside and remand the Board’s decision so that
it may address the veteran’s contentions appropriately. See Tucker v. West, 11 Vet.App. 369, 374
(1998) (remand is appropriate “where the Board has incorrectly applied the law, failed to provide
an adequate statement of reasons or bases for its determinations, or where the record is otherwise
inadequate”). Because the claim is being remanded, the Court need not address the veteran’s other
arguments that would lead to no broader remedy than a remand. See Mahl v. Principi, 15 Vet.App.
37, 38 (2001) (per curiam order).
II. CONCLUSION
Accordingly, the Board’s August 14, 2018, decision is SET ASIDE and the matter is
REMANDED for further proceedings.
DATED: March 6, 2020
Copies to:
Elroy J. Jardine
VA General Counsel (027)

1 Comment »

  1. F**kin’ A. A pro se guy kicked their ass.

    Comment by Alex graham — March 9, 2020 @ 11:38 pm


RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.