Citation Nr: 21023467 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-47 240 DATE: April 20, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for hemorrhagic cerebral infarction and residuals is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s hemorrhagic cerebral infarction was caused by VA medical care, to include the failure to timely diagnose and/or properly treat hypertension. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for hemorrhagic cerebral infarction and residuals are not met. 38 U.S.C. §§ 1151, 5121A; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to September 1965. The Veteran died in January 2016. The Appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2019 at which time the Board, inter alia, denied compensation under 38 U.S.C. § 1151 for hemorrhagic cerebral infarction and residuals. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). An Order of the Court, dated in March 2020, granted a Joint Motion for Partial Remand (JMPR), vacating the April 2019 Board decision with regard to this issue and remanding the claim to the Board for action consistent with the terms of the JMPR. In August 2020, the Board remanded the appeal for a medical opinion which is of record. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran’s attorney, John S. Berry, Jr., argues that the resulting December 2020 VA medical opinion is inadequate because it fails to address contentions in support of claims for entitlement to service connection for hypertension and cause of death. As those claims are not part of the current appeal, the Board finds the December 2020 VA medical opinion is adequate for adjudicative purposes. Entitlement to compensation under 38 U.S.C. § 1151 The Appellant contends the Veteran suffered a hemorrhagic cerebral infraction stemming from uncontrolled high blood pressure which was not being appropriately managed by his doctors at the VA Clinic. See Correspondence (February 2014). Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The question for the Board is whether it is at least as likely as not that the Veteran’s hemorrhagic cerebral infarction was caused by VA medical care; and the proximate cause of the disability or death was either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the care, or (b) an event not reasonably foreseeable. The Board concludes that, while the Veteran had a hemorrhagic cerebral infarction due to high blood pressure, the preponderance of the evidence weighs against a finding that his hemorrhagic cerebral infarction was caused by VA’s failure to timely diagnose and/or properly treat high blood pressure. 38 C.F.R. § 3.361(c); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005); Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). The record reflects that the Veteran initially sought to establish care at VA in December 2012 due to a 6-month history of dizziness and imbalance. See CAPRI at 153 (June 2014). He reported that he took no prescription medications but had high blood pressure and had been on medication in the past. Id. At a follow-up appointment the same month, the Veteran reported a 13-year history of hypertension for which he had not taken medications since August, roughly 4 months. Id at 150. He reported he had never been seen at VA before and was prescribed blood pressure medication a year before when last seen privately. The Veteran reported he had discontinued his blood pressure medications because of the cost. He believed his blood pressure had been in the low 200s and reported his symptoms had not changed since discontinuing his medications. On examination, the Veteran’s blood pressure was 192/132 laying, 200/144 sitting, and 200/133 standing. Due to his reportedly long history of poorly controlled hypertension, the Veteran was placed on 25 mg of hydrochlorothiazide (HCTZ) and 5 mg of amlodipine, a basic metabolic panel (BMP) was ordered, and one-week follow-up to check blood pressure and titrate meds was indicated. No follow-up is documented in the record. The Veteran established care at the C.S. VA Clinic on March 14, 2013, reporting ataxia, severe low back pain, leg weakness, right facial droop for two years, blurred right eye vision, and high blood pressure for which he took medication. See CAPRI at 146 (June 2014). Blood pressure readings were 180/120 and 193/130. Noting a possible brain or cor insult based on right eyelid twitches, facial droop, and weakness, the treating physician ordered a scan of the head to be followed by neurological consultation and a one-month follow-up appointment. During a March 21 telephone contact, the Veteran reported elevated blood pressure running in the 190s/100s in the afternoons and increased stress due to debt and an inability to work. Id at 139. His medications were reviewed (HCTZ 25mg and amlodipine 10mg); clonidine 0.1mg was prescribed; and he was instructed to take his blood pressure in the mornings at rest and report his blood pressures the following Monday morning. The Veteran indicated he understood. No reports of blood pressure readings are in the record. An April 2013 primary care note reflected that blood pressure was still high (194/117, 190/11) but improved. Clonidine was increased to 0.2 mg. Discontinuance of other medications was not discussed. The Veteran had MRIs of the brain, neck, and back and a follow-up appointment scheduled the next month. Id at 137. A one-month follow-up appointment is not of record. At a June 2013 appointment, the Veteran’s wife reported he had not been taking HCTZ or amlodipine; they had misunderstood at the previous appointment to stop both of those and just use clonidine. The Veteran was instructed to restart HCTZ and amlodipine with his clonidine and return to the clinic in 2 months; his wife was to call and reschedule the MRIs. Id at 113. On the morning of July 9, 2013, the Veteran’s wife contacted VA because the Veteran had fallen the day before and spent the night in a chair. Id at 109. She was concerned he had a broken or dislocated hip but had not called for an ambulance due to financial concerns. She was advised to call an ambulance as getting the Veteran needed care was most important. The Veteran was admitted to a private hospital the same day. See Medical Treatment Record (May 2014). Neurology consultation diagnosed a right basal ganglia hemorrhage likely due to hypertension. Brain MRI reflected acute right thalamic hemorrhage of probable hypertensive etiology and extensive old hypertensive or amyloid microangiopathy with multiple small old hemorrhages. A December 2020 VA medical opinion reflects that review of the medical record shows the Veteran had a long history of hypertension and noncompliance with prescription medications, which was recognized on his first visit to VA, and a prior history of a stroke. See C&P Exam (December 2020). During treatment, appropriate medications and follow-up instructions were given regarding the importance of monitoring blood pressure and following prescription recommendations. The opinion concluded that VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, and the standard of care was met in this case. Therefore, it is less likely than not that (1) hemorrhagic cerebral infarction was caused by or became worse as a result of VA treatment, (2) additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; (3) additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider: (4) and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The Board assigns greater probative value to the December 2020 VA medical opinion. The physician’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). The Appellant has not provided a favorable medical opinion to weigh in this matter. The Board acknowledges the argument of Mr. Berry, the Appellant’s attorney, that VA failed to treat the Veteran’s hypertension prior to December 2012 or determine whether he was in “hypertensive emergency” or had possible organ damage due to his high blood pressure. See Third Party Correspondence (February 2019). Additionally, Mr. Berry argued that the December 2020 medical opinion is inadequate because, if the Veteran were actually noncompliant with his medications, the standard of care would have been “to find a solution to that non-compliance.” See Third Party Correspondence (March 2021). Additionally, he argues that the medical opinion fails to explain the misunderstanding that caused the Veteran to discontinue use of amlodipine and HCTZ and whether VA’s negligence caused that misunderstanding. As a preliminary matter, the Board notes that mere conclusory statements by the Appellant’s attorney do not amount to medical evidence and mere disagreement with an opinion does not make it inadequate. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation will be a fully informed one.’” (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)); see also Nieves-Rodriguez, 22 Vet. App. at 301 (“[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). Mr. Berry fails to identify why he believes VA was responsible for the Veteran’s health before he established care at VA in December 2012 or how actions by VA providers after December 2012 fall below the standard of care for medical professionals. He also does not explain how the Veteran’s misunderstanding regarding discontinuance of medication was unforeseeable and/or due to negligence on the part of VA. Rather, Mr. Berry makes broad, general contentions which ascribe no responsibility for the Veteran’s health to the Veteran and point to no specific instance of lapse in the standard of care by VA providers. “Noncompliance” is defined as the failure or refusal to comply with something. Merriam-Webster’s Collegiate Dictionary (2003), Springfield, MA, U.S.A.: Merriam-Webster, Incorporated. By its very definition, noncompliance is an action conflicting with instructions given. VA medical professionals were responsible for providing proper medical instructions to the Veteran; the Veteran was responsible for following those instructions to better his health. As reflected in the record, follow-up care revealed and corrected misunderstandings and provided better opportunities for medical professionals to partner with the Veteran to improve his blood pressure. The record reflects that the Veteran failed to take medications and schedule testing and/or follow-up appointments as instructed. These actions by the Veteran were entirely within his control and do not reflect negligence on the part of his VA providers. Neither the Appellant nor her attorney has provided competent evidence which suggests otherwise. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Edwards 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.