OPTIC NEUROPATHY

D. MARTZ AMES · 2026 · Case ID: A26040810

GRANTED

Summary

The veteran, who served from March 1984 to April 1986, appeals the denial of compensation under 38 U.S.C. § 1151 for central retinal artery occlusion (CRAO) with strabismus. The veteran underwent three eye surgeries at a VA facility in November and December 2018 to repair an orbital floor fracture. Following these surgeries, the veteran developed CRAO with strabismus, experiencing decreased visual acuity and double vision. The agency of original jurisdiction (AOJ) had previously found that this additional disability was caused by the VA surgeries. The Board found this prior favorable finding binding, as the AOJ did not meet the clear and unmistakable error standard to overturn it. The Board reviewed the medical evidence, including a March 2019 VA eye examination and February 2021 VA treatment records, which indicated the CRAO and strabismus were diagnosed shortly after the surgeries. While the exact proximate cause remained unclear, a September 2019 VA medical opinion suggested the disability was an unforeseeable complication of the VA treatment. Applying the benefit of the doubt, the Board found entitlement to compensation under § 1151 warranted. The claim for CRAO with strabismus is granted.

Rationale

Favorable finding from AOJ that CRAO with strabismus resulted from 2018 VA eye surgeries is binding.; March 2019 VA eye examination diagnosed CRAO and strabismus shortly after final surgeries.; September 2019 VA medical opinion indicated disability was unforeseeable complication of VA treatment.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210720-173412

Full Decision Text

Citation Nr: A26040810
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210720-173412
DATE: April 30, 2026

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for central retinal artery occlusion (CRAO) with strabismus is granted.

FINDINGS OF FACT

1. In November and December 2018, the Veteran underwent three eye surgeries at a VA facility.

2. One or more of the 2018 eye surgeries resulted in CRAO with strabismus, an additional disability.

3. Resolving any reasonable doubt in the Veteran's favor, his CRAO with strabismus was proximately caused by an event not reasonably foreseeable.

CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for CRAO with strabismus have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1984 to April 1986.

In May 2021, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim for service connection for CRAO with strabismus, most recently addressed in a September 2019 rating decision. In July 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which implicitly found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window.

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 28, 2025.

Therefore, the Board may only consider the evidence of record at the time of the July 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence was associated with the file during the period after the AOJ issued the decision on appeal and prior to the Board hearing. The Board did not consider this evidence in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that the Board could not consider, he 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran and his representative assert that the April 2019 VA medical opinion is inadequate. Because the claim is granted in full below, the Board need not reach this issue.

Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The claim for service connection for CRAO with strabismus is granted.

The Veteran and his representative assert that his conceded CRAO with strabismus is an additional disability caused by one or more of three "botched" 2018 eye surgeries performed at a VA medical center. See April 2025 hearing transcript. The Veteran asserts he now experiences blindness in his right eye, which he did not experience prior to the 2018 eye surgeries. See id.

Under 38 U.S.C. § 1151, compensation is awarded for a "qualifying additional disability" in the same manner
, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The claim for service connection for CRAO with strabismus is granted.

Under 38 U.S.C. § 1151, compensation is awarded for a "qualifying additional disability" in the same manner as if such additional disability or death were service connected. The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a).

To be considered a "qualifying additional disability" in these circumstances, a disability must meet two criteria. First, it must not be the result of the Veteran's willful misconduct. Second, the disability must have been either: (a) caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either (i) 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 (ii) an event not reasonably foreseeable; or (b) proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. Id.

To determine whether the Veteran had an additional disability, VA compares the condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the condition after such treatment has stopped. 38 C.F.R. § 3.361(b).

The benefit of the doubt rule provides that an appellant will prevail in a case where the positive evidence is in approximate balance with the negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. It is only when the weight of the evidence is persuasively against the claim that the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

As an initial matter, the Board is bound by the favorable findings reached by the AOJ in its rating decision. See 38 U.S.C. § 5104(b)(4); 5104A; 38 C.F.R. § 20.801(a). Here, the AOJ favorably found that the Veteran had a current CRAO with strabismus disability and that this disability was the result of his 2018 eye surgeries. See September 2019 rating decision. While the AOJ later attempted to revoke its favorable finding that this disability was the result of the 2018 eye surgeries, it did not apply the standard of clear and unmistakable evidence required to overturn a favorable finding. 38 C.F.R. § 3.104; see July 2021 rating decision. The favorable finding that the Veteran has a current CRAO with strabismus disability caused by his 2018 VA eye surgeries therefore remains binding on the Board.

In November 2018, the Veteran experienced a fracture of the right orbital floor and presented to a VA facility for treatment. See November 2018 Medical Treatment Record - Government Facility. In November 2018 and December 2018, the Veteran underwent three eye surgeries at one VA facility. The initial November 2018 surgery aimed to repair the right orbital floor fracture, and the Veteran experienced a complication of superior gaze restriction. See March 2019 VA eye examination; February 2021 VA treatment records. An additional surgery became necessary in December 2018 to revise the November 2018 surgery. See id. Unfortunately, the Veteran experienced an additional complication of medial gaze restriction. See March 2019 VA eye examination. A third surgery was performed the next day in December 2018 to remove the plate that had been installed in the Veteran's right orbital floor. See February 2021 VA treatment records. Immediately following the third surgery, the Veteran experienced decreased visual acuity and double vision-also called diplopia-in his right eye. See March 2019 VA eye examination.

The March 2019 VA eye examination report reflects the Veteran was diagnosed with both CRAO and strabismus on December 11, 2018
December 2018 to revise the November 2018 surgery. See id. Unfortunately, the Veteran experienced an additional complication of medial gaze restriction. See March 2019 VA eye examination. A third surgery was performed the next day in December 2018 to remove the plate that had been installed in the Veteran's right orbital floor. See February 2021 VA treatment records. Immediately following the third surgery, the Veteran experienced decreased visual acuity and double vision-also called diplopia-in his right eye. See March 2019 VA eye examination.

The March 2019 VA eye examination report reflects the Veteran was diagnosed with both CRAO and strabismus on December 11, 2018, within days of his final two VA eye surgeries. This is persuasive evidence of an additional disability when compared to the Veteran's right eye condition immediately prior to the November 2018 and December 2018 eye surgeries at a VA facility.

VA does not assert and the evidence does not demonstrate that the Veteran's additional disability was the result of his own willful misconduct. To the contrary, as discussed above, the AOJ has conceded that the Veteran's CRAO with strabismus was caused by the 2018 eye surgeries.

The Board must next determine whether the proximate cause of the disability was either 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 an event not reasonably foreseeable. 38 U.S.C. § 1151(a).

The AOJ obtained a September 2019 VA medical opinion from an ophthalmologist. While the ophthalmologist opined that the Veteran's blindness was not the result of the VA treatment at issue, this aspect of the opinion contradicts both the AOJ's favorable finding and the ophthalmologist's own statements that the CRAO with strabismus was a surgical complication and that the Veteran's visual acuity after this CRAO with strabismus was worse than his visual acuity prior to his surgeries. The ophthalmologist also explicitly stated that the Veteran's "resultant disability" could not have reasonably been foreseen by a reasonable healthcare provider. In support of this, the ophthalmologist noted that CRAO occurs in only 1-2 out of 100,000 people and that it is a rare and uncommon complication not typically expected of the surgeries performed on the Veteran.

While the medical evidence of record does not make clear the precise event that proximately caused the Veteran's CRAO with strabismus, the September 2019 VA medical opinion is persuasive evidence that this additional disability, which was caused by VA surgical treatment, was proximately caused by some event not reasonably foreseeable.

Therefore, resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to compensation for CRAO with strabismus is warranted under the provisions of 38 U.S.C. § 1151. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.C.

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.

Analyze in VA Law Explorer