Citation Nr: 18158792 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-60 153 DATE: December 18, 2018 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for stroke with blurred vision in the right eye and loss of vision in the left eye due to VA treatment is denied. FINDING OF FACT The weight of the evidence does not establish that the Veteran experience a stroke with blurred vision in the right eye and loss of vision in the left eye as a result of any care or treatment by VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for stroke with blurred vision in the right eye and loss of vision in the left eye have not been met. 38 U.S.C. §§ 1151, 5103A, 5107 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1977 to August 1980 and January 1981 to May 1987. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for stroke with blurred vision in the right eye and loss of vision in the left eye due to VA treatment. In order for the Veteran to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran, the claim for compensation under 38 U.S.C. § 1151 must be denied. 38 U.S.C. § 1151 provides that compensation under Chapters 11 and 13 of 38 U.S.C. 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 the 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: (1) 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 [of VA], 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; or (2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that had a stroke that resulted in blurred vision in the right eye and loss of vision in the left eye as a result of the lack of prevention and treatment at American Lake VA Medical Center in July 2012 for left sided numbness and tingling. See November 2015 Statement in Support of Claim. He therefore contends that he is entitled to compensation under the provisions of 38 U.S.C. § 1151. In October 2014, the Veteran’s claim was reviewed by a VA examiner. The examiner, a physician, opined that the Veteran’s stroke and decreased vision problems are not the result of the physician’s failure to exercise the degree of care that would be expected of a reasonable health provider. The examiner also concluded that the VA physician did exercise the proper degree of care but found that the stroke was not reasonably foreseeable. Noting that the Veteran believes the stroke should have been prevented or foreseen by VA treatment providers beforehand, the examiner nonetheless found that the stroke was unforeseeable by any treatment provider who followed proper medical protocol. The examiner reasoned that the record is clear that the Veteran received meticulous and attentive care at all his visits to VA, including primary care. She noted that prior to the stroke in July 2012, the treatment providers observed that the Veteran’s blood pressure was elevated and that he had not taken his medications that day. The Veteran was provided an electrocardiogram that was within normal limits. The medical providers noted that the Veteran did not appear to be in any distress and did not have any neurological deficits. The examiner concluded that the Veteran’s left ophthalmic artery occlusion was not foreseeable at the time of his visit and there is no reasonable neuroradiologic diagnostic imaging which would have enabled preemptive diagnosis of the Veteran’s condition given he was complaining of symptoms which were distinct entirely from a left ophthalmic artery occlusion. Further, the examiner found that any imaging study conducted at the time would not have provided any additional information or insight and would not have been indicated under the circumstances. In summary, the October 2014 VA examiner opined that the Veteran’s stroke and loss of vision in the left eye in July 2012 was not caused by, aggravated by, or the result of VA treatment. She further stated there was no additional disability that resulted due to VA care or from carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel. The examiner concluded that the Veteran’s stroke could not have reasonably been foreseen by a reasonable health care provider and there was no failure on the part of VA to timely diagnose and treat the Veteran. Following a review of the evidence and the applicable laws and regulations, it is the Board’s conclusion that the preponderance of the evidence is against the claim for compensation under 38 U.S.C. § 1151 for stroke with decreased vision. The October 2014 VA examiner determined that is was less likely than not that the Veteran’s stroke with decreased vision was caused by his treatment at VA in July 2012. There is no competent evidence to support a finding that the stroke was due to the Veteran’s VA treatment. Without establishing such a cause and effect relationship (i.e., no proximate cause), there is no need to address the question of whether there was carelessness, negligence, or similar instance of fault, or whether the proximate cause of the disability was an event not reasonably foreseeable. The Board has considered the Veteran’s statements relating his stroke with decreased vision to treatment in July 2012 for left sided sensory changes. He is certainly competent, even as a layman, to comment on things with the perception of his five senses, such as changes in his vision. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nonetheless, the Veteran is not competent to opine on questions of causation, negligence, or reasonable foreseeability of medical risks related to the July 2012 treatment for symptoms of left sided sensory changes. These determinations are based upon findings that are medially complex in nature and simply not readily amenable to lay comment. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Indeed, contrary to his assertions, the medical evidence, as highlighted by the October 2014 examiner, shows that there is no relationship between the July 2012 treatment for left sided sensory changes and his subsequent development of a stroke with blurred vision in the right eye and loss of vision in the left eye. The Board finds the October 2014 VA opinion to be the most probative evidence as to whether the Veteran suffers from disability related to left sided sensory change treatment in July 2012. As a final matter, the Board acknowledges the Veteran’s request for VA to determine whether or not the VAMC produced quality assurance records in conjunction with the Veteran’s treatment in July 2012 and, if such pertinent records were created by the VAMC, to obtain them for inclusion in the evidence. See September 2018 statement from Veteran’s representative. The Board notes that no attempt has been made to determine whether quality assurance records pertaining to the treatment at issue exist. Generally, QA records are protected under 38 U.S.C. § 5705 and its implementing regulations, and therefore are unavailable for consideration in deciding a benefit claim such that they cannot be considered evidence and material of record within the meaning of 38 U.S.C. § 7104(a). Thus, withholding protected QA records, even if pertinent to a claim, would not violate section 7104(a). See VAOGCPREC 01-11 (Apr. 19, 2011). However, QA investigative reports should be requested if the claimant (1) identifies these records as evidence necessary to substantiate their claim; (2) identifies quality assurance records consistent with 38 U.S.C. 5103A(b)(1), and (3) furnishes sufficient information to locate the records consistent with 38 U.S.C. 5103A(c)(2). VBA Manual M21-1, IV.ii.1.A.2.d., Quality Assurance Investigative Reports; see also VAOGCPREC 01-11. Here, the Veteran’s representative has not furnished sufficient information to locate the records. Rather, the representative has only argued that no attempt has been made to find out whether any QA records exist. Furthermore, it is VA’s policy to destroy QA records after three years unless needed for research or legal purposes. Norvell v. Peake, 22 Vet. App. 194 (2008); citing VHA Records Control Schedule 10-1, at XXXIII-2 (Aug. 1, 2009); see also VHA Records Control Schedule 10-1 (Mar. 1, 2011). In this case, the treatment in question took place in 2012. Absent sufficient information from the Veteran, and as more than three years has passed since the treatment at issue, no action pertaining to QA records is needed. Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel