Citation Nr: 1334745 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-19 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and ventriculoperitoneal (VP) shunt, to include meningitis, ventriculitis, functional blindness, and brain damage as a result of treatment at a Department of Veterans Affairs facility in 1977 and 1978. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and daughters ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to May 1952. The appellant is the daughter and guardian of the Veteran; the Veteran has been determined to be incompetent for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) that, in pertinent part, denied compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and VP shunt, to include meningitis, ventriculitis, functional blindness, and brain damage. The Veteran timely appealed. (Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the RO in Atlanta, Georgia). In an April 1982 decision promulgated by the Board, the Veteran's claim for compensation benefits, under 38 U.S.C.A. § 1151, for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and VP shunt, to include meningitis; ventriculitis; functional blindness; and brain damage, was denied. In a December 2012 decision, the Board reopened and remanded the claim based on the receipt of new and material evidence. There has been substantial compliance with the Board's December 2012 remand directives; hence, another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that a claim had also been filed on the Veteran's behalf under the Federal Tort Claims Act (FTCA), based upon the same events which led to the 38 U.S.C.A. § 1151 claim. A Memorandum for File, dated in August 1984, shows a monetary settlement of the FTCA claim in the amount of $1,500 (Vol. 1). Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence shows that the Veteran does not have post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and VP shunt, to include meningitis, ventriculitis, functional blindness, and brain damage as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care in 1977 and 1978, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and VP shunt, to include meningitis, ventriculitis, functional blindness, and brain damage, as a result of treatment at a VA facility in 1977 and 1978 have not been met. 38 U.S.C.A §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for benefits under 38 U.S.C.A. § 1151. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court has also observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a letter dated in March 2012, after the rating on appeal and pursuant to the Board's reopening of the claim, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for benefits under 38 U.S.C.A. § 1151, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. He was also advised of how disability ratings and effective dates are assigned. The Board finds that any deficiency with respect to the timing of the notice provided is harmless. The notice discussed above fully complied with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, and the Veteran was fully informed of the evidence that was needed to support his claim. Moreover, following the notice, the RO readjudicated the appeal, most recently in the March 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). The Veteran has not demonstrated any other error in VCAA notice; therefore the presumption of prejudicial error as to such notice does not arise. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA medical records and private medical records are in the file or located in his Virtual VA record. Transcripts from hearing held are included in the file as well. A January 2013 VA examination report reflects that the examiner reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the evidence and contentions of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board therefore concludes that the January 2013 VA medical opinion is adequate for adjudication purposes. See 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). Consequently, the Board finds that VA's duty to assist has also been met in this case. II. Law and Analysis Under 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 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. 38 U.S.C.A. § 1151 (West 2002). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2013). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2013). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2013). 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 or medical or surgical treatment caused the veteran's additional disability or death; 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. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2013). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the private treatment records dated from October 1977 to December 1977 show that the Veteran was treated for an acute subarachnoid hemorrhage and brain aneurysm. He presented with complaints of a migraine headache but then developed a grand mal seizure. On admission he displayed marked nuchal rigidity and was intermittently combative. A right subarachnoid hemorrhage was noted on funduscopic evaluation and an emergency CAT scan showed a three to four millimeter right to left shift with blood in the right sylvian fissure. An anterogram showed a five to six millimeter right A-1 segment aneurysm with a right occipital dural arterovenous malformation and a small right temporal lobe mass effect and densities consistent with blood in the basad cistern. In mid-November, he underwent a right fronto-temporal craniotomy and clipping of the right A-1 aneurysm. During the immediate postoperative period, he was somnolent and arousable to verbal stimuli with a left upper extremity monoparesis and a paraparesis. Over the next two weeks, he regained is level of consciousness but persisted with having marked bradykinesia with slow, low speech output and a right extremity parietal drift. At time of discharge, he could walk with assistance with the aid of his wife. He was awake and following commands. The discharge diagnoses included status post subarachnoid hemorrhage times two, a right A-1 aneurysm, a right occipital dural arterovenous malformation, and a cerebral infarction secondary to the subarachnoid hemorrhages. In December 1977, the Veteran was transferred to a VA Medical Center (VAMC) in Gainesville, Florida for continued treatment. VA hospitalization and clinical records show that on admission, the Veteran was conscious and following commands. His wound was noted to be well-healed. Bradykinesia was noted. Repeat CAT scans revealed progressive communicating hydrocephalus and a ventriculoperitoneal shunt from the brain to the abdomen was recommended. Pre-operative notes indicate that the Veteran's spouse was warned of the risks, complications, alternatives, and benefits of the surgery and consented. Surgical records do not reveal any complications. On the evening following surgery, both of the Veteran's wrists were restrained with soft restraints. The nursing notes for the second postoperative night indicate that the Veteran was found sitting on the bed after he had untied his restraints. He was escorted to the bathroom and back to bed. It was noted that he seemed improved neurologically. The next morning, the Veteran's spouse stated that he fell during the night, nut no notation to that effect was documented in the clinical records. The following evening, she reported that while she was escorting the Veteran to the bathroom, he tore his head bandages off. The bandages were reapplied. She stated that he had fallen during the second postoperative night but the nursing staff denied that any fall had occurred. Nursing notes from the succeeding days indicated that the Veteran continued to be restrained at the chest but untied the restraints. Wrist restraints were put back on. His predominant complaint was headaches. At the end of the month, he was placed on a pass for six days and returned ambulatory. A slight problem of right temporal region swelling was noted. He was subsequently discharged in satisfactory condition. A record dated in January 1978 when the Veteran was discharged from this medical facility shows that his wife understood care for observing his level of consciousness and possible infection. The Veteran was seen by VA for follow-up in March 1978. A clinical record dated March 3, 1978 shows that his temperature was recorded as 99.8 degrees and his pulse rate was 108. The report noted that the Veteran had "marked improvement," he "was "up & about," and was "[d]oing very well." It was also noted that the shunt pumped well and filled quickly. His spouse reported some memory and vision problems, but otherwise there were no complaints. He was to return to the clinic in six months. In a letter dated April 11, 1978, G.W.S., M.D., of the Health Center at the University of Florida, stated that although the Veteran had had a "stormy and protracted hospital course" he was "now fully recovered" and desired to return to work on at least a limited basis. On April 20, 1978, he presented to the Shands Teaching Hospital. One week prior to admission, his spouse noted erythema over the peritoneal shunt tubing. On the day of admission, he complained of onset of severe headache and during the course of the day, he developed fever and somnolence. Heart exhibited regular rhythm without murmur. The abdomen was diffusely tender to palpation with erythema over the shunt. Clinical evaluation revealed a diagnosis of a shunt infection and the shunt was removed. Additionally, an abscess on the abdominal wall was found. In a June 14, 1978 letter, Dr. S. reported that the Veteran had slowly recovered under intensive management for his severe gram negative sepsis, ventriculitis, meningitis and abdominal abscesses. He was comatose upon admission but with treatment, the infection improved and cleared. He was discharged to home management. In a June 27, 1978 letter, Dr. S. reported that after the ventriculoperitoneal shunt procedure, the Veteran "markedly improved almost returning to normal brain function." However, in May 1978, he developed a generalized sepsis, abdominal abscess and severe acute ventriculitis and meningitis. The shunt was removed and he was treated with an external ventriculostomy for drainage. Under intensive medical management, he gradually recovered to an alert state. He was left with a mild to moderate dementia and generalized bradykinesia. He concluded that the Veteran had sustained severe irreversible brain damage from the infective process. He was totally disabled and unable to return to work. In a letter dated August 29, 1978, Dr. S. reported that the Veteran sustained a severe brain injury secondary to a rupture of a cerebral aneurysm causing subarachnoid hemorrhage. He also sustained brain damage from subsequent meningitis secondary to an infected shunt placed for hydrocephalus. As a result of the infection, the Veteran suffered brain damage and functional blindness. In a letter dated January 3, 1979, H.B., M.D. stated that the Veteran first became a patient of his in 1973 with a history of vascular headaches with subsequent occipital dural AV malformation. He stated that it was his medical opinion that the "unusual stress and physical strain of his job, did help aggravate and increase the pressure in the brain area which caused the devastating hemmorages (sic)." In a January 4, 1979 letter, Dr. B. stated that the recorded temperature of 99.8 should have alerted the attending physician to suspect possible infection and that the elevated pulse rate of 108 should have further shown cause for immediate medical attention. He stated that a blood culture would have revealed the "beginning of the infective process." He also stated that it was his medical opinion that "due to the infection, without medical attention, was allowed to spread from the abdominal cavity to the brain resulting in the patient going into a coma." He concluded that "SHOULD PROPER MEDICAL CARE BEEN ADMINISTERED TO THIS PATIENT ON 3/5/78 BY THE VA HOSPITAL IN GAINESVILLE, FLORIDA, this patient would be leading a normal life today. Failure to give attention to the two warning signals, shown on the clinic report and stated above, has resulted in extensive pain and suffering." In a December 1980 letter, C.E.D., M.D., noted that the clinician on March 3rd did not make any notes as to the elevated pulse and mild elevation of temperature. He also did not record the amount of Tylenol being used or when the last dose was taken. He stated that the outcome "could well have been different had this information been sought or perhaps the elevated pulse and temperature investigated by lab studies." He also remarked that "the elevated pulse and temperature bespoke of a possible infection." The undated letter from Dr. G.S. indicates that the incidence of infection occurring in various surgical series varied from five to 20 percent, since the shunt was a foreign body. It was a well-recognized complication, fortunately not frequent. The nature of the organism in the case suggested to him that the Veteran did have some type of complication related to perforation of the bowel by the catheter tip. The May 1981 letter from Dr. H.B. shows that the elevated temperature in March 1978 should have alerted the attending physician to suspect possible infection and the elevated pulse rate should have further shown cause for immediate medical attention. It was his opinion that a blood culture at that time would have revealed the beginning of the infective process, which was ultimately to cause severe brain damage in the Veteran. The Veteran and his wife contended that the Veteran fell three times while at the VAMC, which caused the shunt to perforate the bowel, and that VA was negligent in not diagnosing the infection in March 1978. The Veteran was afforded a VA examination in January 2013. After a thorough clinical evaluation and a full review of the medical records, the examiner concluded that it was less likely that any additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in the three allegations alleged by the Veteran [, i.e., in failing to timely diagnose an aneurysm in August 1977, in failing to protect the Veteran from falling in December 1977, and in failing to timely diagnose the shunt infection in March 1978]. The examiner noted that that infection is a known and foreseeable complication of shunt placement and one of the mechanisms of a shunt infection is the retrograde seeding from the catheter tip. It was not likely that a fall would cause a bowel perforation four months later. Additionally, there were no clinical notations of any trauma or injuries occurring due to a fall during the course of the Veteran's hospitalization. With regard to failing to timely diagnose the aneurysm itself, the examiner noted that from the reports in the records there did not appear to be a substantial difference that would indicate a work-up using the techniques available at that time in light of the Veteran's history of migraine headaches. Multiple doctors saw him during the previous years and came to similar conclusions. Finally, with regard to the March 3, 1978 clinic visit, the examiner noted that the Veteran's temperature was mildly elevated. However, he was reportedly bright and alert and doing much better. The elevated temperature was a nonspecific finding that could have been a sign of an infection but it does not rule in an infection just as a normal temperature would not rule out an infection. In case studies of shunt infections, fever is reported in as few as 14% and as many as 92% of cases. The elevated pulse rate was characteristic of an inflammatory response, but again is nonspecific. His vital signs from his hospital reports indicated that his pulse was running around 100 and therefore its significance is unclear. He had been doing very well clinically and continued to do well for at least the next month. The examiner noted that a blood culture would not necessarily have revealed an infection and in fact, blood cultures on April 21, 1978, April 22, 1978, and April 24, 1978, were reported as "no growth." As such, he could not find sufficient evidence to substantiate a claim that VA missed an infection due to negligence and that contrary to the letter written by Dr. B., a simple blood test would not have diagnosed an infection. The Board finds that the preponderance of the evidence is against the claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and ventriculoperitoneal (VP) shunt, to include meningitis, ventriculitis, functional blindness, and brain damage because the most probative evidence of record, the January 2013 VA examination report, concluded that it was less likely that any additional disability sustained by the Veteran was due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in the three allegations alleged by the Veteran, i.e., in failing to timely diagnose an aneurysm in August 1977, in failing to protect him from falling in December 1977, and in failing to timely diagnose the shunt infection in March 1978. Winsett v. West, 11 Vet. App. 420 (1998). That opinion was based on a full review of the record, including the contrasting medical statements and opinions, the Veteran's and other lay statements and personal hearing testimony, and a thorough clinical evaluation. Notably, the examiner explained that the literature failed to show that a blood test would have definitively diagnosed the infection at an earlier time since blood cultures during the infection period were essentially negative. There was no evidence to support the Veteran's and his wife's assertions that he fell during his hospitalization, or that the aneurysm should have been detected earlier. Bloom v. West, 12 Vet. App. 185 (1999). Notably, the Board observes that in a letter dated April 11, 1978, more than a month after the elevated temperature and pulse findings, the Veteran's treating physician, Dr. S., reported that the Veteran was "now fully recovered" and desired to return to work on at least a limited basis. Presumably, this letter was prepared based on a contemporaneous clinical evaluation of the Veteran at that time - and at that time, no symptoms compatible with a severe infection were detected or reported. Furthermore, on April 20, 1978, the Veteran presented to the Shands Teaching Hospital, and his spouse reported that, one week prior to admission, she detected erythema over the peritoneal shunt tubing. On the day of admission, he complained of onset of severe headache and during the course of the day, he developed fever and somnolence. No earlier symptoms of fever, infection, and general ill effects were reported. The Board finds that the medical statements presented by the Veteran and his family members from Dr. S., Dr. B. and Dr. B., are less probative because they did not provide a rationale for their opinions and did cite to any literature to support their statements. Additionally, the statements were not based on a full review of the record and did not specifically address the conclusion of Dr. S. on April 11, 1978 that on that date, the Veteran was deemed fully recovered such that he was cleared to return to work on a limited basis and the April 20, 1978 report that symptoms began one week prior to admission. Therefore, the Board has accorded those statements less probative weight. Winsett v. West, 11 Vet. App. 420 (1998); Bloom v. West, 12 Vet. App. 185 (1999). The Board observes that, although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case - aneurysm, shunt placement, infection, brain damage, etc., fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). They are complex medical conditions that require specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and they are not susceptible of lay opinions on etiology or the question of negligence, carelessness, etc. Therefore, the Veteran's and other lay statements cannot be accepted as competent evidence sufficient to establish entitlement to benefits pursuant to 38 U.S.C.A. § 1151. Accordingly, the Board finds that the preponderance of the evidence is against the claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and VP shunt, to include meningitis, ventriculitis, functional blindness, and brain damage, and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for post-operative residuals of brain infection, status-post subarachnoid hemorrhage with clipping right cerebral aneurysm and VP shunt, to include meningitis, ventriculitis, functional blindness, and brain damage as a result of VA treatment in 1977 and 1978 are denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs