Citation Nr: 1817455 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-29 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C. 1151 for a cerebrovascular accident with residual slurring speech and limited mobility. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his family ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran did not sustain any additional disability associated with a cerebrovascular accident with residual slurring speech and limited mobility as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or as a result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for cerebrovascular accident with residual slurring speech and limited mobility are not met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. VA's duty to notify was satisfied by a letter sent to the Veteran in June 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159(b); 3.326(a). VA's duty to assist includes helping claimants to obtain medical and other pertinent records, as well as providing a medical opinion necessary to make a decision on the claim. The opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claims file contains the Veteran's VA and private medical records, as well as an adequate VA medical opinion. The duty to obtain relevant records is satisfied. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The law provides that compensation may be paid for a qualifying additional disability that is 1) not the result of the Veteran's willful misconduct; 2) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA either by a VA employee or in a VA facility; and 3) the proximate cause of the disability was A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012). VA regulations provide that benefits under 38 U.S.C. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination 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 (2017). If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. 38 C.F.R. § 3.361 (c)(1) (2017). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2017). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran's representative. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. 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. 38 C.F.R. § 3.361(d) (2017). The Veteran and his children testified at the January 2017 hearing. The Veteran stated that he presented to the VA emergency room in October 1999 with symptoms including a headache, dizziness, slurred speech, balance difficulties, curled arm, dragging foot, and impaired vision. He alleges VA did not follow appropriate medical protocol. He stated he was given a CT scan that reportedly showed he did not have a stroke, and was instructed to go home and take aspirin. A few hours later, the Veteran's symptoms had not subsided and the Veteran was taken to a non-VA trauma center. At the hearing, the Veteran's family made note of the Veteran's high blood pressure readings at the time of the stroke. In his August 2014 appeal form, the Veteran stated that he continues to have weakness of the left side, slurred speech, and loss of balance, which he believes is a consequence of the alleged negligent treatment from VA medical personnel. The family also in substance testified that the Veteran initially filed this claim in the 1990s. However, no evidence to support this allegation is included in the record, nor were any supporting documents submitted after the hearing. In October 1999, VA treatment records show the Veteran had complaints of dizziness, blurry vision, slurred speech, and left arm weakness. The results of a head CT scan showed small vessel ischemic change, but no evidence of intracranial hemorrhage. The Veteran was discharged from VA care. Private medical records indicate that a few hours after being released from the VA medical center, the Veteran's wife noticed a recurrence of symptoms. The Veteran was transported by ambulance to a private medical facility. He presented with worsening left side weakness, dysarthria, and difficulty with standing and walking. The Veteran was started on heparin, sent for a MRI, and stroke labs were ordered. It was noted there was no acute change in the Veteran's blood pressure. The record shows the Veteran was found to have had a transient ischemic attack (TIA). At the request of the Veteran, he was transferred from the private hospital to the VA medical center. During the following days at the VA hospital, the Veteran was diagnosed with a right subcortical stroke based on an additional CT scan. He continued to have unstable standing and gait, and numbness on the left side. The Veteran was also noted to have difficulty swallowing. Heparin was continued, secondary stroke prevention medications were administered, and the Veteran was enrolled in rehabilitation therapy. A VA neurologist provided an opinion in December 2017 as to whether the Veteran incurred a disability as a result of his initial VA treatment in October 1999, and, if so, whether the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or a similar instance or fault on the part of the VA; or an event not reasonably foreseeable. The VA neurologist thoroughly reviewed the Veteran's private and VA medical records. He noted that since the October 1999 stroke, the Veteran has since complained of continued difficulty ambulating, including a fall that resulted in a hip fracture, as well as speech difficulties. The neurologist concluded that 1) the clinical picture strongly supports the contention that the Veteran had an acute stroke in October 1999; and 2) prudent practice when he was initially seen at the VA medical facility should have included a full neurological examination, further stroke and TIA evaluations, evaluations of the carotid arteries, and an ultrasound of the heart. He stated that the Veteran was subsequently seen at a private medical facility and the mentioned tests were completed. The VA neurologist addressed the Veteran's family questioning the lack of treatment for the Veteran's elevated blood pressure when initially seen at the VA. He explained that abrupt lowering of blood pressure in the face of a stroke may enlarge the infarcted area of brain and worsen the stroke, and neither medical center that treated the Veteran abruptly lowered his blood pressure. Additionally, the VA neurologist stated that "clot busting" drugs to treat strokes were known in 1999 but there were still considerable barriers to being widely adopted and it cannot be considered a standard for that time. However, the neurologist also found no failure of VA care that the Veteran was not administered heparin when he was first seen at the VA medical center because heparin, then and now, is not a standard of care. He pointed out that even once heparin was administered to the Veteran, he initially improved but then declined. Ultimately, the VA neurologist opined that the VA care provided in October 1999, which included offering radiographic assessment and a discharge home with instructions to use aspirin and to follow up in one week, did not result in an additional disability. As to whether the VA care, including a TIA diagnosis with a home discharge rather than admission to the hospital, along with a prescription for aspirin but not heparin, was to be expected of a reasonable health care provider given the Veteran's symptoms and complaints of instability, speech difficulties and numbness, the VA neurologist opined that it was not. However, given the Veteran's subsequent clinical course, he found that these deficiencies cannot be said to have led to additional disability beyond what was subsequently caused by the cerebral infarct. After a review of all the lay and medical evidence, the Board finds the weight of the evidence is against a finding that the stroke and residual slurring speech and limited mobility was proximately caused by 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 that the stroke with residuals was the result of an event that was not reasonably foreseeable. The December 2017 neurologist's opinion is well-supported by the record and medical knowledge. His conclusion that VA's failure to provide reasonable care did not result in an additional disability was based on his assessment and comparison of standards of care in 1999 and now, as well as the differences between the treatment provided at the VA and private facilities. No other medical professional has provided an opinion indicating that VA was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. Though the Veteran is competent to provide lay testimony regarding the symptoms he has observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in a disability following his stroke. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Barr, 21 Vet. App. at 307. The Board also notes that the Veteran submitted a statement in July 2011 reporting that he had an additional stroke in April 2011. The accompanying private medical records show the private physician indicated the 2011 stroke was probably secondary to small vessel disease from the Veteran's hypertension and uncontrolled diabetes mellitus. Further, the physician noted the Veteran had a stroke 13 years prior resulting in some problems on the left side that had since resolved. As the evidence shows that the Veteran does not have an additional disability that was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA or an event not reasonably foreseeable, compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, are not warranted. Accordingly, the benefit sought on appeal is denied. ORDER Compensation under 38 U.S.C. 1151 for a cerebrovascular accident with residual slurring speech and limited mobility under the provisions of 38 U.S.C. § 1151 is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs