Citation Nr: 21006515 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-03 253 DATE: February 4, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a stroke is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the Veteran’s service-connected left shoulder disability, is remanded. FINDING OF FACT The Veteran’s treatment with clonidine is not shown to have been the actual or proximate cause of his history of stroke. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for additional disability as a result of VA medical treatment have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1973 to June 1976. This appeal was previously before the Board of Veterans’ Appeals (Board) in April 2017 and April 2013 at which time additional evidentiary development was requested to comply with due process requirements. The evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has now been returned to the Board for further appellate review. The Board acknowledges the argument presented by the Veteran’s attorney that the October 2015 VA examination was inadequate because the examiner did not review the claims file. See Attorney’s letter, June 2016. However, contrary to the attorney’s allegation, the April 2013 Board remand explicitly indicated that a review of virtual records was also sufficient, and the October 2015 examiner documented that although a paper claims file was not reviewed, the Veteran’s military service treatment records, VA treatment records, civilian treatment records, and other electronic documents including VBMS, CPRS, and CPRS remote data were all reviewed. In other words, although the October 2015 VA examination did not review a paper copy of the claims file, the documents included in such a file were reviewed electronically. This substantially complies with the remand order. Additionally, the Board notes that the April 2017 Board remand directed that the Veteran’s Vocational Rehabilitation and Education folder be obtained as it might bear on the outcome of the Veteran’s appeal, particularly as related to his appeal seeking a total disability rating based on individual unemployability that has since been granted. Although the complete vocational rehabilitation folder does not appear to be associated with the claims file, there is no indication that the vocational rehabilitation evidence is relevant to the Veteran’s claim seeking compensation under 38 U.S.C. § 1151. Further remand to obtain it would merely result in greater delay to the Veteran, without changing the outcome herein. The Board ultimately finds that the records have been adequately developed in substantial compliance with the prior remand instructions and proceeds with a decision in the appeal at this time. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a stroke is denied. Under 38 U.S.C. § 1151, compensation shall be awarded for a Veteran’s qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability is 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 an event not reasonably foreseeable. 38 U.S.C. § 1151(a). To determine whether a Veteran has additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, upon which the claim is based to the Veteran’s condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the VA treatment or care resulted in the Veteran’s additional disability. 38 C.F.R. § 3.361(c)(1). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that 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 proximately caused a Veteran’s additional disability, 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. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran’s additional disability 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)(2). Here, the evidence documents the Veteran has a history of strokes. However, the number of strokes experienced and the dates of those events are inconsistently reported by the Veteran and his spouse. At the time of an October 2007 emergency department admission, the Veteran’s wife believed the Veteran was having a stroke, but the resulting clinical impression was of transient ischemic attack (TIA), which is a stroke-like event sometimes called a mini-stroke. See, e.g., Transient Ischemic Attack, U.S Nat’l Libr. of Medicine, https://medlineplus.gov/transientischemicattack.html (last visited Feb. 1, 2020). Although this impression was noted on the emergency department’s checklist, it does not appear as a diagnosis on the final report. At the time of this hospital treatment, the Veteran’s wife also reported a prior history of 2 cerebrovascular accidents (CVA), a medical term for stroke, preceding the October 2007 hospital visit. An October 2015 VA examiner noted that a February 2000 MRI of the brain found a “tiny old lacunar infarction in the right frontal lobe” but found this abnormality to be of “no clinical significance.” Additionally, the October 2015 examiner noted a March 2010 head CT scan that was conducted to establish a baseline while evaluating a seizure disorder. The March 2010 CT resulted in an impression to “rule-out a recent infarct of the pons” where the reporting physician noted “a vague hypoattenuation lesion in the pons which could represent a recent infarct.” See VA examination, October 2015 (documenting medical notations regarding stroke history). Although not definitive as to the occurrence of prior stroke, these findings on diagnostic imagery appear to have since been treated as the Veteran having a “stroke history” based on personal report, and the Board defers to the findings of the medical providers in this regard. However, the Board finds that the preponderance of the evidence weighs against the Veteran’s argument, as presented by his wife, that his stroke history was caused by clonidine, a medication prescribed by the Veteran’s VA psychiatrist in June 2007. Board hearing transcript, February 2013; see also VA treatment record, June 2007. Of note, the Veteran is diagnosed with dementia and was unable to remember any details regarding the potential causation of his stroke at the February 2013 hearing. His wife’s testimony was taken in lieu of the Veteran’s direct statement as a result. Clonidine was prescribed by the Veteran’s psychiatrist in June 2007 to replace risperidone, an antipsychotic medicine, because the Veteran appeared to gain weight under risperidone. It was hoped that clonidine would replace the sedating effect to help the Veteran sleep. VA treatment note, June 2007. Although the distinction is not directly relevant to the matter on appeal, according to the treatment note by the prescribing physician the clonidine medication was not used in this Veteran’s case with the intent of treating hypertension as otherwise alleged by the appellant. See Veteran’s statement, September 2008. Following issuance of the prescription for clonidine in June 2007, an August 2007 VA treatment note describes the Veteran’s wife as reporting an apparent reaction by the Veteran to clonidine with dizziness, low blood pressure, and nausea, but not reporting a stroke, TIA, or CVA event as a resulting reaction from the clonidine. The Veteran’s wife has stated that she believes that clonidine was related to her husband’s stroke history because a private physician, Dr. C., said that after the Veteran’s wife “gave him a clonidine he had a heart attack and stroke in [the hospital].” Board hearing transcript, February 2013. She attests that this occurred in or around 2006. A 2006 hospital admission is not of record, but Dr. C is listed as the admitting physician for an October 2007 hospital stay for this Veteran. He was admitted due to syncope and collapse, and primarily treated for pneumonia. Hospital treatment record, October 2007. A personal history of TIA and cerebral infarction was noted at the time of this admission. The short stay summary from the October 2007 hospitalization documents that the history of 2 prior CVAs was obtained by self-report of a VA CT scan performed in May 2007 which according to the appellant showed two old strokes, and an associated left foot drop. CT of the head during the October 2007 admission showed no acute hemorrhage or infarct, and stroke was not included in the diagnosis for this stay. Instead, the summary record shows suspected pneumonia, vertigo, and EKG changes consistent with myocardial ischemia. Neither heart attack nor stroke is indicated as occurring during this hospitalization based upon the medical evidence. If, as the Veteran’s spouse alleged, the stroke occurred during a 2006 hospitalization, then this was before the Veteran was prescribed clonidine by VA and is not a valid basis for the appeal seeking compensation under 38 U.S.C. § 1151 as claimed. There is no prescription for clonidine found before the June 2007 prescription noted in the Veteran’s treatment records, and thus clonidine cannot be the proximate cause for any stroke activity occurring before the Veteran was prescribed clonidine. If, however, as the Board believes, the Veteran’s spouse refers to the October 2007 hospitalization as the stroke event in question, then the medical evidence weighs against the occurrence of a stroke during this admission. Furthermore, the medical evidence does not reflect that even if a stroke occurred, that there is any causal relationship to the prescription for clonidine issued by VA. Instead, the October 2015 examiner opined that the Veteran’s disability of stroke residuals was less likely as not caused or worsened as a result of VA treatment with clonidine. Rather, he stated that because there has been no evidence of intracerebral bleeding in this Veteran’s case, his stroke was caused by clotting or low blood flow and that this was the result of cholesterol buildup, severe hypotension, hypertension or arrhythmias. The examiner noted that clonidine does not cause clotting or cholesterol buildup, nor does any evidence indicate that it caused the other necessary conditions to result in this type of stroke, particularly in consideration that the Veteran’s blood pressures and heart rate were recorded during the Veteran’s use of clonidine in 2007 and did not indicate a hemodynamic risk. Additionally, the Veteran’s vital signs were checked during his treatment visits and were stable, thus indicating no need to reduce the clonidine dosage. The examiner further noted that the Veteran’s family history was positive for atherosclerotic vascular disease and included a father with CVA and siblings with coronary artery disease. Even if additional disability were found to result from a stroke occurring after the prescription for clonidine, the October 2015 examiner states it is less likely than not that an additional stroke-related disability resulted from carelessness, negligence, lack of skill or similar fault on the part of the attending VA personnel. Again, his vital signs were stable during the period the prescribed medication was used. The drug manufacturers recommend usage at a low dose, and the Veteran’s dose of 0.1 milligrams is defined by the examining physician as a low dose. The examiner also noted that the stroke residuals resulted from an event that could not have reasonably been foreseen by a reasonable health care provider, but this does not meet the requirements to grant a claim under 38 U.S.C. § 1151 based on an event not reasonably foreseeable because the clonidine medication is not shown to be the proximate cause of any additional disability including the stroke residuals experienced by the Veteran. The criteria to establish entitlement to the compensation sought, to qualify as an event not reasonably foreseeable, is only available where the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable. See 38 C.F.R. § 3.361(d)(2). In other words, the VA treatment must be both the proximate cause and an event not reasonably foreseeable. As the clonidine medication is shown to be less likely than not (less than 50 percent likelihood) to be causally related to the Veteran’s stroke, then clonidine is not considered the proximate cause of the stroke. Thus, even if the stroke were an event not reasonably foreseeable, it does not relate to causation by VA treatment, and entitlement to compensation cannot be established on this basis. The Veteran offers no medical documentation in support of his claim that clonidine is causally related to his stroke history. The Veteran’s wife does report that a doctor told her that the Veteran had a stroke and heart attack related to clonidine, and she is competent to make such a report despite no evidence of any medical training or experience herself. However, due to multiple inconsistencies in the record regarding the medical history presented by the Veteran and his spouse, the recollection of the Veteran’s spouse as to what she was told by a treating provider is found to be less than credible on review. Specifically, as previously discussed, the report of hospitalization in 2007 after being prescribed clonidine did not show that a heart attack or stroke occurred during that admission, a history of stroke-like activity is shown to have occurred before the prescription of clonidine, clonidine was prescribed to treat a different condition than that reported by the Veteran and his spouse, and other inconsistencies as to the remembered chronology and findings of various medical treatments and conditions are revealed by the record. The Veteran’s spouse may believe the Veteran’s stroke residuals are related to his being prescribed clonidine by VA. However, in this case she is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pharmacology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran’s spouse in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board affords greater evidentiary weight to the detailed analysis provided by the October 2015 examiner, a medical doctor who has greater expertise in analyzing the relevant diagnostic testing and medical reports based on his medical knowledge, experience, and training, and greater weight than the report offered by the Veteran’s spouse based on her recollection that she was told of a connection between stroke and clonidine that is otherwise shown to lack credibility based on inaccuracies and inconsistencies with the medical documentation for the period in question. Ultimately, the October 2015 examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, after careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA will resolve that doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the evidence weighs against the claim, and the appeal must be denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder because no VA examiner has opined whether the Veteran’s diagnosed depressive disorder is due to or aggravated by the chronic pain from his service-connected left shoulder disability. VA treatment records document a mood disorder due to general medical condition and a July 2005 VA examination indicates that the Veteran’s depressive symptomatology may be associated with his chronic shoulder pain resulting from the service-connected left shoulder disability and the Veteran’s inability to work, and thus raises the matter of secondary service connection on this basis. A medical opinion addressing this theory of entitlement is required. 38 C.F.R. § 3.159(c)(4)(i). The Board acknowledges the December 2019 statement by the Veteran’s representative that the Veteran is unable to be transported from his residence in a long-term care facility to attend an in-person VA examination. However, a medical opinion is requested here that does not require in-person examination. If the examiner is unable to render the requested opinion without obtaining more detail from the Veteran, a telephonic or other virtual examination option should be utilized if necessary and available. The matters are REMANDED for the following action: Obtain an addendum opinion regarding whether the Veteran’s depressive disorder, or other diagnosed acquired psychiatric disability, is at least as likely as not proximately due to a service-connected disability or aggravated beyond its natural progression by service-connected disability, including the Veteran’s chronic pain resulting from his service-connected left shoulder disability. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.