Citation Nr: 1753051 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-48 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for ischemic brain injury. 2. Entitlement to compensation under 38 U.S.C. § 1151 for ischemic brain injury. REPRESENTATION Appellant represented by: Hugh D. Cox, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran had active service in the North Carolina Army National Guard from February 16, 1956 to April 24, 1957; in the U.S. Navy from April 25, 1957 to October 2, 1957; and additional service in the North Carolina Army National Guard from January 1960 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this case for further development in March 2013. The Veteran testified at a hearing before the undersigned in May 2012. A transcript is of record. 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). FINDINGS OF FACT 1. The Veteran's ischemic brain injury is not linked to disease or injury incurred or aggravated in active service. 2. The Veteran's ischemic brain injury was not proximately caused by heart surgery performed in April 2002 at the VA Medical Center (VAMC) in Durham, North Carolina, or by medications prescribed by VA. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic brain injury are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for compensation under 38 U.S.C. § 1151 for ischemic brain injury are not met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection A. Law Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including brain hemorrhage, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for brain hemorrhage if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. II. Analysis The Veteran states that his ischemic brain injury may be linked to falls sustained in service while aboard ship during a storm. See May 2012 Hearing Transcript. For the following reasons, the Board finds that the preponderance of the evidence weighs against a relationship between the Veteran's in-service falls and his current disability. A current disability is established. A January 2007 VA magnetic resonance imaging study (MRI) of the brain showed evidence of periventricular deep white matter foci of increased signal intensity, bilaterally, suggestive of small vessel ischemic changes. An April 2007 VA treatment record notes a diagnosis of subcortical cerebral ischemia secondary to microvascular occlusive disease. The service treatment records do not show that cerebral ischemia or traumatic brain injury were noted in service. A VA examination was performed in April 2016. Based on examination of the Veteran and review of the claims file, the examiner concluded that the Veteran's cerebral ischemia was less likely than not incurred in service or caused by the Veteran's fall injury. The examiner explained that the ischemic changes seen on MRI were caused by small vessel disease, which is not a condition caused by trauma or falls. The VA medical opinion represents the informed conclusion of a medical professional based on review of the Veteran's medical history and an examination of the Veteran, and is supported by an explanation linking the data to the conclusion reached. It therefore carries a lot of probative weight in the Board's determination. The examiner concluded that the Veteran's pathology by its nature could not be traumatic in origin, but was rather caused by small vessel disease. Consequently, as a matter of logic, it cannot be caused by in-service falls. The Board accords more weight to the VA medical opinion than to the Veteran's assertion that his ischemia was caused by in-service falls or injury, as the former represents the objective conclusion of a medical professional and is supported by a clear explanation. By contrast, the Veteran does not have a medical background or medical expertise, and has not offered an explanation for his opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In the alternative, because the Veteran is considered a lay person in the field of medicine, his opinion does not constitute competent evidence, as the issue of whether cerebral ischemia that manifests years after an in-service injury may be linked to such injury is not within the province of lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the presence of cerebral ischemia itself apparently requires diagnostic imaging, as shown in the VA treatment records, and thus cannot be directly seen, and, in any event, given the amount of time that has elapsed between service and the diagnosis of ischemia, a cause-and-effect relationship cannot be observed through the senses alone. Because the Veteran's opinion is not competent evidence, it lacks probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the preponderance of the evidence weighs against a nexus to service, and therefore service connection on a direct basis is not established. The Veteran does not state, and the evidence does not show, that cerebral ischemia or small vessel disease manifested during service or within one year of service separation. Therefore, service connection cannot be established based on chronicity or on a presumptive basis. To the extent the Veteran asserts a continuity of symptomology after service, the evidence does not show that ischemia or a symptom indicative of such was noted in service, or that there is a nexus between such symptoms and his current ischemia. Thus, the elements for establish service connection based on continuity of symptomatology are not satisfied. See Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In the alternative, the April 2016 VA medical opinion shows that the Veteran's ischemia is clearly attributable to intercurrent causes- namely small vessel disease. Therefore, service connection cannot be established based on continuity of symptoms. In sum, service connection for ischemic brain injury must be denied. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. II. Compensation under 38 U.S.C. 1151 I. Law Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA medical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the veteran or, in appropriate cases, the informed consent of his or her representative. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. II. Analysis The Veteran states that heart surgery performed in April 2002 at the VAMC in Durham, North Carolina caused his cerebral ischemia. See May 2010 Hearing Transcript. Specifically, in an October 2009 statement, he wrote that oxygen was mistakenly cut off too long during the heart surgery, which caused his brain ischemia. At the May 2012 hearing, the Veteran testified that a doctor told him that it could have been caused by not enough oxygen getting to his brain during the heart surgery. He also indicated a belief that various medications prescribed by VA may have caused his cerebral ischemia. For the following reasons, the Board finds that the preponderance of the evidence weighs against the claim. VA treatment records associated with the April 2002 surgery do not show that there were any complications. The Veteran's testimony that a doctor told him that his cerebral ischemia may have been caused by lack of oxygen during the April 2002 heart surgery has little probative value, as the Veteran may have misremembered, misunderstood, or misrepresented what the doctor stated. Moreover, the mere possibility that such was the cause is not sufficient to bring the matter within a "range of probability" in order to resolve doubt in favor of the claim. See 38 C.F.R. § 3.102. In the alternative, no explanation for this opinion was provided, which is an independent basis for finding that it lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In a May 2016 VA medical opinion, the examiner concluded that it was less likely than not that the Veteran's brain ischemia was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination or an event not reasonably foreseeable vis-à-vis the April 2002 surgery or prescribed medications. Indeed, the examiner found no relationship whatsoever. The examiner explained that documentation of the April 2002 surgery did not show any complications. It was performed with all the standard of care. The Veteran was discharged in stable condition and given appropriate follow-up. At discharge, there was no documentation of any neurologic complications from the surgery or any event where there was oxygen deprivation, or any medical mismanagement. The examiner further noted that the Veteran had a history of cardiovascular conditions, including coronary artery disease (CAD) and peripheral vascular disease, and that he was intolerant to statins, which is one of the main treatments of CAD. The examiner found that none of these conditions were related to the heart surgery. The examiner observed that an embolism appeared more than one year after the surgery, and could not be considered related to the surgery. The Veteran's atrial fibrillation was also not related to the surgery, although it could be related to the CAD, according to the examiner. The examiner concluded that the Veteran's ischemia was related to multiple strokes due to small vessel disease. It was not related to the surgery, but rather the Veteran's significant vascular disease, which had progressed despite medical treatment, according to the examiner. With regard to etiology, the examiner stated that there was some genetic component, a life style component, and the fact that the Veteran was not able to tolerate statin treatment, which was the main form of therapy for this disease. The examiner summarized that the Veteran's strokes were due to small vessel disease, which was part of the natural progression of his extensive vascular disease. It was not due to the April 2002 surgery. The May 2016 VA medical opinion is highly probative, as it represents the informed conclusion of a medical professional based on review of the Veteran's medical history, and is supported by an explanation linking the data to the conclusion reached. It therefore carries a lot of weight in the Board's determination. The examiner clearly explained that the Veteran's ischemia was not related to the surgery or VA medication, but rather was due to the natural progression of the Veteran's cardiovascular conditions, which themselves were not caused by the surgery or VA medication. The examiner also found that the surgery was performed with the standard of care, and that there were no complications, including lack of oxygen. The VA medical opinion carries more weight than the Veteran's unsupported lay statements. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Because the evidence shows that the Veteran's ischemic brain injury was not caused by the VA surgery or medications, the issue of whether there was informed consent is moot. See 38 C.F.R. § 3.361(d)(1). In sum, compensation under 38 U.S.C. 1151 for ischemic brain injury must be denied. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. ORDER Service connection for ischemic brain injury is denied. Compensation under 38 U.S.C. § 1151 for ischemic brain injury is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs