Citation Nr: 21006180 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-40 487 DATE: February 3, 2021 ORDER Service connection for arteriosclerosis obliterans of the right lower extremity, to include as secondary to the service-connected total blindness of the right eye, is denied. Service connection for arteriosclerosis obliterans of the left lower extremity, to include as secondary to the service-connected of total blindness of the right eye is denied. Entitlement to compensation under 38 U.S.C. § 1151 for carotid artery disease with multiple strokes and left eye amaurosis fugax is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s arteriosclerosis obliterans of the right lower extremity either occurred during or was otherwise caused by his service, or was caused by or aggravated by his service-connected total blindness of the right eye. 2. The evidence does not show that the Veteran’s arteriosclerosis obliterans of the left lower extremity either occurred during or was otherwise caused by his service, or was caused by or aggravated by his service-connected total blindness of the right eye. 3. The evidence of record does not show that the Veteran’s current carotid artery disease with multiple strokes and left eye amaurosis fugax was proximately caused by carelessness, negligence or lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical personnel involved in the Veteran’s endarterectomy performed in September 1996 at the VA medical center, nor a not reasonably foreseeable result of the surgery. CONCLUSIONS OF LAW 1. The criteria for service connection for arteriosclerosis obliterans of the right lower extremity have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for arteriosclerosis obliterans of the left lower extremity have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for compensation under 38 U.S.C. § 1151 for carotid artery disease with multiple strokes and left eye amaurosis fugax have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1965 to June1969. He underwent an endarterectomy at VA medical center (VAMC) in Buffalo, New York in September 1996 to treat right carotid stenosis. In 2002, the Veteran started experiencing problems in his right eye. In 2005, he was diagnosed with neovascular glaucoma in the right eye due to retinal vein occlusion which caused blindness in the right eye. A rating decision in August 2012 granted compensation under 38 U.S.C. § 1151 for right eye total blindness (no light perception, or NLP) based on a medical opinion by a private ophthalmologist Dr. M. that had the right eye neovascular glaucoma been diagnosed and treated earlier, the Veteran would have had a better chance of visual outcome. Service Connection The Veteran is seeking service connection for arteriosclerosis obliterans of the lower extremities which he believed was caused or aggravated by the 1996 endarterectomy and subsequent treatment at VAMC, and by the total blindness in his right eye. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service connected disability. 38 C.F.R.§3.310 (a). Service treatment records (STRs) do not show any diagnosis or treatment of arteriosclerosis obliterans. A VA examiner provided a medical opinion in May 2015, stating the Veteran’s arteriosclerosis obliterans was less likely (less than 50 percent probability) incurred in or caused or worsened by the VA treatment (endarterectomy in 1996). The examiner reasoned that the Veteran’s bilateral arteriosclerotic obliterans predated his endarterectomy in 1996. The examiner explained that current medical literature does not support that an endarterectomy, or even carelessness, negligence, or lack of skill in performing an endarterectomy could cause any of this condition or make it worse. Furthermore, there was no evidence of worsening immediately after the surgery, the condition normally worsens over time secondary to its natural course. The May 2015 VA medical opinion was rendered after review of the claim’s file and was supported by the evidence of the records. For example, the VA treatment records show that on September 19, 1996 (two days prior to his endarterectomy), an aortic arch bilateral carotid arteriogram showed the following findings: (1) right carotid system demonstrated evidence of diffuse atherosclerotic changes with a tapering of the artery estimated 95 percent stenosis, and (2) left carotid circulation demonstrated evidence of mild atherosclerotic changes involving the middle third of the common aortic. A VA examination in November 2011 showed a diagnosis of atherosclerosis with recent right carotid endarterectomy, indicating that the endarterectomy surgery was to treat the pre-existing atherosclerotic condition. As such, the May 2015 VA medical opinion will be awarded great probative value. While the May 2015 VA medical opinion did not explicitly indicate that bilateral arteriosclerotic obliterans were less likely (less than 50 percent probability) caused by or aggravated by the right eye blindness, the VA treatment records show that the Veteran’s atherosclerotic condition existing prior to the September 1996 endarterectomy surgery, and he had surgery of stenting of left external iliac to treat occlusion of left external iliac in September 2004, while his right eye blindness was first diagnosed in 2005. As such, the right eye blindness could not cause the arteriosclerosis obliterans as the arteriosclerotic condition occurred earlier than the right eye blindness. Furthermore, the May 2015 medical opinion indicated that the arteriosclerotic condition normally worsened over time secondary to its natural course. As such, the evidence does not show the right eye blindness had aggravated the arteriosclerotic condition. While the Veteran believes that his arteriosclerosis obliterans (bilateral lower extremities) was caused or aggravated by his 1996 endarterectomy or his right eye blindness, he lacks the medical training and/or expertise to provide a complex medical opinion as to the etiology of such a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. For that reason, a medical opinion of record was obtained, but as discussed above, that opinion was against the claim. No medical opinion of record has been offered that challenges, undermines, or refutes the examiner’s opinion. Accordingly, service connection for arteriosclerosis obliterans (bilateral lower extremities) is denied. 1151 Claim 38 U.S.C. § 1151 provides that 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. A disability or death is a qualifying additional disability or qualifying death if (1) the additional disability or death was not the result of the Veteran’s willful misconduct, (2) the additional 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, and (3) the proximate cause of the additional disability or death was either 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 an event not reasonably foreseeable. See 38 U.S.C. § 1151. The Veteran is seeking compensation under 38 U.S.C. § 1151 for his carotid artery disease with multiple strokes and left eye amaurosis fugax which he believes was caused by the 1996 endarterectomy and subsequent VA treatment. In a statement dated May 2014, the Veteran claimed that the 1996 endarterectomy was “botched” and unsuccessful, which caused him to have multiple strokes and complications. He also claimed that the VA allowed an inexperienced resident (Dr. K. U.) to conduct the endarterectomy. In addition, he claimed that VA did not provide him with effective medication to control his hypertension. Specifically, he stated that shortly after the endarterectomy, his blood pressure (BP) was erratic and out of control. According to the Veteran, in June 2002, he was admitted to Strong Memorial Hospital for a stroke and his blood pressure was brought under control for the first time after he started VA treatment in 1996. After he was discharged from the hospital, the VA discontinued his effective BP medication prescribed by the hospital and changed it back to the prior ineffective prescription. In a September 2016 statement, the Veteran claimed that the VA attending surgent in his 1996 endarterectomy (Dr. K. U.) was not licensed by the State of New York medical board until December 1997, and provided a copy of license information of Dr. U. K. from the website of the New York State Education Department. VA surgery notes show that Dr. P. was the surgeon for the Veteran’s 1996 endarterectomy, while Dr. K.U. was the resident participated in the surgery. As such, the allegation that the 1996 was performed by an inexperienced unlicensed surgeon is not supported by the evidence of the record. A VA medical opinion in May 2015 stated that the Veteran’s multiple cardiovascular and neurovascular disabilities are not likely caused by, or permanently worsened by the endarterectomy performed at the VAMC in 1996. The examiner’s rationale was that the Veteran’s carotid artery occlusions, arteriosclerotic hearty disease, hypertension, bilateral arteriosclerotic obliterans/PVD and multiple strokes all predated his endarterectomy in 1996. The examiner referenced the medical records showing that the Veteran had a stroke in 1977, that he had a long history of hyperlipemia, hypertension and a long smoking history prior to the surgery, and that tests prior to the surgery showed 80 percent stenosis of right carotid artery and ischemic changes on EKG with symptoms consistent with CAD. The examiner opined that current medical literature does not support that an endarterectomy, or even carelessness, negligence, or lack of skill performing an endarterectomy could cause any of these conditions or worsen them. Finally, the examiner concluded that there was no evidence of worsening immediately after the surgery and that the conditions normally worsen over time secondary to their natural course. Of note, according to a letter by a private Dr. K dated January 2015, the Veteran had several episodes of left eye vision loss (amaurosis fugax) in May 2014. The mechanism of his vision loss was felt to be decreased blood flow to his left eye in the setting of atherosclerotic narrowing of the left carotid artery. The examiner’s opinion is supported by the evidence of the records. For example, VA treatment records on September 6, 1996 (prior to the endarterectomy performed on September 21, 1996) showed that the Veteran was admitted to the VA hospital for chest pressure, shortness of breath, diplopia in the right eye, and tingling and sensory loss in the left arm. His BP at that time was 173/113. He had significant family history of strokes, including his father. All his 15 uncles had experienced strokes. He had been smoking 1.5 packs per day for 25 years. A cardiac catherization report dated September 16, 1996 revealed coronary artery diseases with 40-50 percent stenosis in the left anterior descending artery and 40 percent stenosis in the circumflex coronary artery. VA treatment records dated October 23, 1996 showed that the Veteran had a good recovery from carotid surgery. While the records show that during the first week after the September 1996 endarterectomy, the Veteran’s BP was high at intervals (VA treatment records dated September 25,1996 showed BP readings of 180/80 and 180/100), records also showed that he had a history of uncontrolled hypertension prior to the surgery (see VA treatment records dated September 18, 1996). Records show that the VA medical team was able to adjust the medications to get his hypertension under control. For example, BP testing on January 6, 1997, April 1, 1997, May 3, 1997 and July 22, 1997 showed 150/80, 140/80, 134/76, and 130/80 respectively. Private treatment records (letter Dr. B. from Strong Memorial Hospital dated July 31, 2002) show that the Veteran experienced a stroke on June 22, 2002 due to an embolic shower secondary to right ICA (internal carotid artery) occlusion. He was admitted to Strong Memorial Hospital from June 22, 2002 to July 12, 2002. His treating physician Dr. B. noted that the Veteran had very high BP (240/110 and 200/100), which was thought to be out of control on his old medications. Dr. B. changed his medication and successfully brought the systolic BP down to the 150-160 level. VA treatment records in May 2002 show that the Veteran stopped visiting the VAMC after May 1999 and stopped taking all medications since he felt well, until May 2002, when he reported having experienced CHF (congestive heart failure) in April 2002 and was admitted to the Strong Memorial Hospital. BP readings in May 2002 were 215/110, 223/118, 200/110 and 220/110. He was given 0.2 mg of clonidine and BP was reduced to 126/80 in one hour and to 136/80 in 2 hours. The VA treating physician strongly emphasized to the Veteran the importance of ongoing medical care and the importance of mediation compliance. VA treatment records on July 23, 2002 showed that the Veteran walked into VAMC to get medications that Strong Memorial Hospital has prescribed for him. At that time, the VA had not received the letter from Dr. B. (the hospital physician) dated July 31, 2002, which provided the detailed information about the treatment of the Veteran’s hypertension during his hospital stay, including the effect of the new medications. Based on the previous record showing that his hypertension was previously well-controlled, the VA physician prescribed old medications that the Veteran had previously been given by the VA instead of the new medications prescribed by the hospital. Records in August 2002 show that the Veteran’s BP was brought down to 130/80 and 128/80. Subsequently, although the Veteran’s BP sporadically went uncontrolled by the medication for several occasions, (for example, BP in November 2002 was 200/110, 190/110; and BP in March 2003 was 180/96, 166/100, and 160/94), the VA medical team was able to adjust the mediations (to include adopting one of the new medications prescribed by the hospital) and successfully bring the BP under control. Records from 2004 to 2008 consistently show his BP level was at 110-120/60-70 level. As such, the evidence of record does not show the VA medical team was carelessness, negligence, lack of proper skill in treating the Veteran’s hypertension. Turning to the Veteran’s claim that the 1996 endarterectomy was not successful, as his right carotid artery occlusion was progressed to 100 percent. It is reasonably foreseeable that every surgery has its risks and may not prevent the recurrence of the same condition. In sum, the evidence of record shows that the Veteran’s multiple cardiovascular and neurovascular disabilities had their onset prior to the 1996 endarterectomy and was not proximately caused by carelessness, negligence or lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical team involved in the 1996 surgery and its subsequent effort to control the Veteran’s hypertension. The progression of these conditions after the surgery is a reasonably foreseeable result of the surgery. As such, compensation under 38 U.S.C. § 1151 for carotid artery disease with multiple strokes and left eye amaurosis fugax is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.