Citation Nr: 18152365 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-40 651 DATE: November 21, 2018 ORDER Entitlement to VA compensation under the provisions of 38 U.S.C. § 1151 for loss of sight in the right eye due to treatment or medications prescribed by VA for high blood pressure is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran developed additional disability, through incurrence or aggravation, of loss of sight in the right eye due to VA treatment or medications prescribed by VA for high blood pressure. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for loss of sight in the right due to treatment or medications prescribed by VA for high blood pressure have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from March 1964 through March 1967. This appeal proceeds from a March 2013 rating decision. The Veteran and witnesses testified at a hearing before the undersigned Veterans Law Judge in October 2015. He submitted additional evidence at that time, as well as in November 2018, including copies of VA treatment records, in response to a medical opinion obtained pursuant to 38 C.F.R. § 20.901. Because the Veteran did not request review of the additional evidence by the agency of original jurisdiction (AOJ), he is assumed to have waived such review because his substantive appeal (VA Form 9) was received after February 2, 2013. See 38 U.S.C. § 7105(e)(1). 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for loss of sight in the right due to treatment or medications prescribed by VA for high blood pressure The Veteran contends that he lost his sight in the right eye due to VA prescribing too high of a dose of blood pressure medication during treatment from 2010 through 2012, when he had a right eye stroke resulting in loss of vision. See, e.g., March 2013 report of general information, October 2015 hearing transcript. VA will provide compensation under section 1151 for qualifying additional disability as if such additional disability were service-connected. A qualifying additional disability is one where the disability was not the result of the Veteran’s willful misconduct; and the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran; and the proximate cause of the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The first prong is additional disability as a result of VA care, treatment, or examination. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). It must also be shown that the additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). Once additional disability is established, proximate cause must be shown due to fault on the part of VA or an event not reasonably foreseeable. The fault prong will be shown if (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the care, treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether an event was not reasonably foreseeable for each claim is based on what a reasonable health care provider would have foreseen, including whether the risk of the event was the type that a reasonable health care provider would have disclosed in connection with informed consent procedures. 38 C.F.R. § 3.361(d)(2). The discussion below is limited to the relevant evidence required to support the Board’s finding of fact and conclusion of law, as well as to respond to specific contentions expressly raised or reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As discussed below, after considering and weighing the lay and medical evidence, the Board finds that the Veteran developed additional disability of loss of vision in the right eye in April 2012, during the period in which his primary care was with VA providers. However, this additional disability, through either causation or aggravation of an existing condition, did not actually result from VA care, treatment, or examination, including the medications for his hypertension. Therefore, the criteria for compensation under section 1151 are not met. During his 2015 Board hearing, the Veteran testified that he had a stroke in the optic nerve of his left eye in 2009. He stated that the private eye specialist, Dr. F, who examined him at that time diagnosed the stroke, told him that this happened because his blood pressure had “bottomed out” when he was asleep, and told him that if he continued with the same medications there was a better than even chance or that he would probably have the same result in his right eye. The Veteran began using VA for his primary care in 2010, after his private provider closed down. He stated that he told the VA provider this history, including that he had been told the same thing could happen to his right, and the VA provider in 2010 prescribed the same medications of 50 mg of atenolol and 10 mg of lisinopril that his private provider had prescribed, which another VA provider again prescribed in 2011. The Veteran had a stroke in his right eye in 2012, and he recalled that 3-4 months later his dosage of lisinopril was lowered from 10 mg to 2.5 mg. The Veteran believes that the higher dosage of lisinopril caused a stroke in his right eye and that this stroke could have been prevented if his medication had been lowered earlier. The Veteran testified that VA first referred him to an eye specialist shortly after the right eye stroke, in April 2012, but that he did not believe he needed to see an eye specialist other than Dr. F prior to that time and did not request to see one because his left eye had stabilized. The Veteran further testified that his VA providers monitored his hypertension when he sought treatment for other conditions but mostly relied on him to monitor his blood pressure at home. He stated that he did not check his blood pressure on a daily basis, but he was shaking and his lower blood pressure numbers, or diastolic pressure, were never around 100 but instead were in the upper 80s or 90s. The Veteran reported that he had not seen his VA providers for most of the year prior to his right eye stroke, and his last appointment was in July 2011. He believed his hypertension was under control at that point. The Veteran reported that, after this right eye stroke in 2012, an ophthalmologist checked his blood pressure a few times and his diastolic pressure readings ranged from 42 to 46. He recalled that a VA provider told him his blood pressure was fine, but he felt that the numbers were very low. He was taking 50 mg of atenolol and 10 mg of lisinopril at that time. The Veteran explained his belief that VA erred by not lowering his blood pressure medication dosage as a precautionary measure to prevent his blood pressure from becoming unreasonably low and that this resulted in the right eye stroke. This belief was based on Dr. F having told him at that time of his left eye stroke that that stroke happened when his blood pressure bottomed out while he was sleeping and prevented oxygen from getting to his optic nerve. In addition to the Veteran’s hearing testimony, his wife testified that his right eye stroke happened while he was sleeping because he could not see when he woke up. The Veteran’s son testified that the additional loss of sight in the right eye in 2012 had severe effects on the Veteran’s ability to function in daily life and at work. Medical evidence includes VA treatment records and private treatment records from the Veteran’s primary care provider, Dr. R, and his ophthalmologist, Dr. F. In June 2018, the Board obtained a medical opinion from a VHA ophthalmologist based on review of the claims file, which was unfavorable to the Veteran’s claim. Specifically, in his June 2018 report, the VHA ophthalmologist stated that he had extensively reviewed the Veteran’s claims file and pertinent current neuro-ophthalmic literature and had considerable clinical experience in the management of non arteritic ischemic optic neuropathy (NAION), which was the Veteran’s diagnosis for the stroke in both eyes. The VHA examiner stated that a small optic nerve head is generally regarded as a significant predisposing factor for NAION. The examiner also stated that the Veteran had several preexisting factors typically associated with NAION, including hypertension, diabetes, and hyperlipidemia. Additionally, he noted that the probability of the fellow (second) eye developing NAION is “considerable” following a first eye episode. The examiner stated that, during the time of the Veteran’s first (left) eye involvement, his blood pressure readings shown in his private primary care records were generally within or close to normal accepted range, and there was no documentation of low blood pressure or hypotension. The examiner further noted that, although the Veteran has reported that his blood pressure was very low or hypotensive during the time of his second (right eye) NAION involvement, there was no documentation of such extremely low blood pressure status. Thus, the examiner opined that it was more likely than not that the Veteran’s preexisting hypertension, diabetes, and hyperlipidemia were the dominant risk factors that contributed to his development of NAION in the second (right) eye, and that significant hypotension was not primarily causational. In his November 2018 response, the Veteran disagreed with this opinion. He appeared to assert that the opinion was inadequate because the VHA expert had never examined him personally. However, personal examination is not required for a valid opinion if the evidence is otherwise sufficient to provide an opinion. There is no indication in the expert’s report or otherwise that a personal examination was necessary, particularly because the most relevant information pertains to the period from 2010 through 2012. Thus, the opinion is not inadequate for that reason. The Veteran also essentially asserted that the VHA expert did not consider his accurate blood pressure readings. He recalled having blood pressure readings as low as 68 over 42 in the late afternoon when he was taking atenolol 100 mg and lisinopril 20 mg daily prior to his second stroke (in the right eye), but stated that these readings were not documented in his medical records because he was not in medical providers’ offices at those times. He again reported that Dr. F had told him previously that his blood pressure was bottoming out while he slept. The Veteran further asserted that his diabetes and cholesterol were not at a level to affect his eyes, based on blood work and a notation by his VA provider that he had no diabetic damage to his eyes. He appears to believe that this means he had low blood pressure that led to his stroke in the right eye, as he recalled Dr. F telling him would likely happen. The Veteran added that, if his diabetes, high cholesterol, and hypertension caused his right eye stroke then he did not receive proper treatment. The Veteran is not competent to provide an opinion concerning the etiology of his right eye loss of vision, including causation or aggravation based on the effects of his medication for high blood pressure, the interaction between his other medical conditions, or whether he received proper treatment. This is a complex question and requires medical expertise and interpretation of the Veteran’s medical history along with the interactions of multiple body systems, including the vascular and neurological systems, as noted in the VHA opinion as well as his treatment records. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report factual matters of which he has first-hand knowledge, including noticeable vision difficulties, the timing of those symptoms, having lower home blood pressure readings than reflected in his medical records, when he was taking certain medication dosages, and what Dr. F told him about the cause of his condition. Id. The reports by the Veteran and other lay witnesses of him having sudden onset of vision difficulties in his left eye in 2009 and his right eye in 2012, and that the loss of vision was due to a stroke in each eye, are credible because they are consistent with the medical evidence. In contrast, the Veteran’s reports concerning his blood pressure readings, relation to medication dosages, and what Dr. F told him are not credible because they are inconsistent with the contemporaneous medical evidence, as summarized below. The reports in those medical records are more probative than the Veteran’s reports based on his memory several years later for the purposes of his VA claim because they were made at the time of occurrence, as well as to receive proper medical care. Additionally, the Veteran’s reports of what his provider told him have less probative value because they are filtered through his senses as a lay person. Specifically, private records from the Veteran’s primary care provider through 2009, Dr. R, reflect treatment for hypertension, diabetes, and hypercholesterolemia or hyperlipidemia since at least April 2003. No vision complaints were noted until late March 2009, when the Veteran reported complete loss of vision in the left eye, with sudden onset two weeks earlier, for which he sought treatment from Dr. F. Private records from Dr. F (or Dr. Ph, spelling unclear), an ophthalmologist, include the March 18, 2009, record for complaints of a recent “dark spot” in the Veteran’s left eye. No specific recent blood pressure readings were documented, but Dr. F noted diabetes for 3-4 years with blood sugars of 144 this morning and hypertension for 18 years. Medications included atenolol with an unspecified dosage. Examination showed a normal right eye and abnormal left eye optic nerve with edema. Dr. F diagnosed anterior ischemic optic neuropathy in the left eye, noted that it was likely non-arteritic, and noted that the Veteran had hypertension, high cholesterol, and diabetes mellitus. Dr. F advised the Veteran to change to taking his hypertension medications in the morning and to consider aspirin. In a primary care follow-up on March 26, 2009, Dr. R noted hypertension with additional cardiovascular symptoms of hyperlipidemia, which was present for years, increasing in severity, and not well controlled with medication. The Veteran stated that his vision was blurred at first but had worsened progressively, and that an ophthalmologist, Dr. F, had told him this was due to a stroke in his eye. He also reported having a mild “jerking” in his left arm about three weeks prior to his loss of vision in the left eye. Dr. R noted that the left eye loss of vision, which Dr. F identified as a stroke, was most likely due to hypertension or elevated cholesterol and was “not from his diabetes.” Dr. R recorded a significant cardiac history of hypertension and hyperlipidemia, and that the Veteran had been taking Crestor but ran out months ago, although he was still taking atenolol 100 mg daily and his home blood pressure readings had been increasing lately. Dr. R noted later in this record that the Veteran was taking lisinopril 10/12.5 once daily with the atenolol. (The Board notes that Crestor is used to treat hyperlipidemia or high cholesterol, and atenolol and lisinopril are used to treat heart conditions or blood pressure.) On April 9, 2009, the Veteran reported to Dr. R that he had worsening vision in his left eye, and that Dr. F had told him he would either have slow improvement or slow loss of vision. Dr. R ordered additional testing and noted that the Veteran’s blood pressure control had improved, with average readings of 120 over 65. The Veteran was started on Zocor 40 mg tab during this treatment session. On April 23, 2009, Dr. R noted continued loss of vision in the left eye with increasing severity. He further noted that the Veteran rarely checked his blood pressure at home, his blood pressure control had improved with medication, and he had additional cardiovascular symptoms of hyperlipidemia with improving severity. The provider noted that medications were effective and there were no problems with medication. The Veteran reported that his home blood pressure readings had been 105 over 65, and he was taking atenolol 100 mg and lisinopril 10/12.5. Dr. R noted that he had been started on Zocor due to cholesterol readings, and he discussed with the Veteran that the plan was to recheck lipids after a follow-up with Dr. F in six weeks, although there was already some improvement. They further discussed that Dr. F had indicated that the Veteran’s vision loss was from small vessel ischemia in the retina of the left eye, not from a retinal artery clot. Dr. R advised that he would “just need” to continue aspirin 81 mg daily. The Veteran had follow-up eye appointments with Dr. F through September 2009, when Dr. F noted impressions of NAION in the left eye that was stable, as well as an illegible notation referencing blood pressure, blood sugars, and cholesterol. The above records contradict the Veteran’s report for his appeal of having very low blood pressure readings at the time of his 2009 stroke, or that the primary cause was hypotension, as opposed to high cholesterol or a combination of his conditions. Both Dr. F and Dr. R noted that the Veteran had hypertension, high cholesterol, and diabetes in connection with evaluations for his left eye vision loss from NAION from March 2009 through September 2009. Although Dr. F advised the Veteran to change his hypertension medications to the morning and to consider aspirin in March 2009, Dr. R stated later that month that the condition was most likely due to hypertension or high cholesterol. Significantly, Dr. F did not record any noticeably low blood pressure readings in connection with the Veteran’s initial evaluation in March 2009. In contrast, Dr. R emphasized that the Veteran had run out of his high cholesterol medication several months prior to his sudden loss of vision in 2009, but he had continued to take his prescribed blood pressure medications of atenolol and lisinopril and actually had improved blood pressure readings with medication. The Veteran was continued on the same blood pressure medications and dosages, but he was started on a new medication for his cholesterol, and Dr. R advised him to continue taking aspirin after noting that Dr. F small vessel ischemia in the eye. The notations in these records concerning the Veteran’s blood pressure readings and potential causes for NAION are consistent with the notations in the June 2018 VHA ophthalmologist’s opinion report. Contemporaneous to the Veteran’s right eye stroke, a VA record from the eye clinic on April 16, 2012, noted his complaints that his visual acuity had worsened for a few days after his last eye examination in March 2012, then had leveled off but then worsened again. The Veteran reported decreasing his blood pressure medications on his own and that his most recent blood pressure readings were 150s over 80s, but his readings were generally 126 over 67. The provider noted a history of diabetes mellitus for 10 years and diagnosed probable NAION of the right eye, edema resolving, as well as an old NAION of the left eye. The provider recorded that labs and imaging were not consistent with arteritic cause or mass/compression, and that the NAION in the right eye was likely microvascular secondary to hyperlipidemia/diabetes mellitus/hypertension. The Veteran reported that he was no longer taking blood pressure medications at night, he was on Zocor and baby aspirin (ASA), and he was taking atenolol for tachyarrhythmia. (The Board notes that Zocor is another medication to treat high cholesterol.) Active medications included lisinopril 20 mg tab to be taken one-half tab daily and aspirin 81 mg daily. The provider recommended increasing the aspirin dosage to 325 mg and following up with primary care about blood pressure, and stated that the Veteran was likely getting hypotensive at night and might be able to tolerate a slightly higher blood pressure. An April 16, 2012, VA addendum from the ophthalmologist noted that the Veteran had already increased his aspirin dosage to 325 mg and had self-managed his blood pressure by lowering his medication. The ophthalmologist noted that he should be evaluated for “control of his [blood pressure] while also avoiding nocturnal hypotension and any need for further risk factor modification.” Addendum records on April 17, 2012, from VA primary care providers noted that the Veteran was not currently taking anything for his blood pressure and stressed the importance of compliance with medications and salt restriction. The provider advised the Veteran to monitor his blood pressure twice daily, including once before bedtime, and started prescriptions of atenolol 25 mg and HCTZ/lisinopril 12.5/10 one tablet daily. A May 2012 record clarified that this meant HCTZ 12.5 mg/lisinopril 10 mg one tablet to be taken in the morning for high blood pressure, and that the prior prescription of lisinopril 20 mg tablets had been discontinued. On May 14, 2012, a VA eye clinic record noted no changes in visual acuity since the last eye exam on April 16, 2012, and that the Veteran had stable vision. He was back on blood pressure monitoring and medications, although lower doses. A June 2012 private ophthalmology treatment record documented the Veteran’s report of being told by Dr. F and by a VA ophthalmologist that his blood pressure was too low and that this caused his eye stroke in 2009 and again in 2012. Subsequent VA eye clinic records, such as in December 2012 and April 2014, noted the NAION in both eyes and that the Veteran should continue diabetes mellitus and blood pressure control. Records in July 2013 and subsequently noted that he was legally blind from NAION, with visual acuity of 20/200 in both eyes. As with the 2009 stroke, the above records contradict the Veteran’s report for his appeal of having very low blood pressure readings at the time of his 2012 stroke, or that the primary cause was hypotension, as opposed to high cholesterol or a combination of his conditions. The Veteran expressly reported having recent home blood pressure readings prior to the April 2012 loss of vision that ranged from the 120s over 60s to the 150s over 80s. He did not report any systolic pressures as low as the 60s or diastolic pressures as low as the 40s near the time of the 2012 loss of vision, as reported in 2015 and 2018 for his appeal. It is reasonable to expect that the Veteran would have reported such low levels through home blood pressure readings for treatment, and that the provider would have recorded them if they were present at that time, in order to receive proper care. Although the Veteran did report diastolic pressure readings in the 80s for treatment in 2012, consistent with his some of his 2015 hearing testimony, the VHA expert considered those readings in his opinion. Additionally, the Veteran’s memory of his specific dosages of atenolol and lisinopril contradicts the records in some respects, and his VA provider stressed the importance of complying with his prescribed medications after he decreased the dosages on his own. Although the VA ophthalmologist noted in April 2012 that the Veteran was likely getting hypotensive at night, she also noted that the Veteran should be evaluated for blood pressure control to avoid nocturnal hypotension and for any “further risk factor modification.” The ophthalmologist also noted a history of diabetes and medications for high cholesterol as well as hypertension. A June 2012 private ophthalmology record noted that the Veteran was told that his strokes in both eyes were caused by his blood pressure being too low; however, this was merely a notation of the Veteran’s report, which does not transform it into medical evidence or opinion. The notations in these records concerning blood pressure readings and potential causes for right eye loss of vision are consistent with the notations in the 2018 VHA report. In sum, although the Veteran disagreed with the VHA medical opinion and asserted that it was inadequate for several reasons as discussed above, he did not provide further medical evidence or opinion. Notations in the contemporaneous VA and private treatment records are generally consistent with the VHA expert’s summary and notation of multiple potential causes of the Veteran’s eye disability. Accordingly, the Board finds that the VHA medical opinion is highly probative because it considers the Veteran’s full medical history, consistent with the Board’s credibility determinations and independent review of the medical evidence, and provides well-reasoned explanations for the opinions provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). (CONTINUED ON NEXT PAGE)  The Board is sympathetic to the frustration of the Veteran and his family members concerning his right eye loss of vision. However, the preponderance of the evidence is against finding that his additional right eye disability was caused or aggravated as a result of treatment provided or medication prescribed by VA for his high blood pressure. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b). It is unnecessary to address whether there was any fault on the part of VA, to include through lack of informed consent, or whether the event was not reasonably foreseeable. See 38 C.F.R. § 3.361. The criteria for compensation under § 1151 have not been met, and the claim must be denied. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Wheatley