Citation Nr: 1634277 Decision Date: 08/31/16 Archive Date: 09/06/16 DOCKET NO. 14-37 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a heart disability, to include as secondary to a psychiatric disability. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left eye shingles, including unstable scarring. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1957. These matters come to the Board of Veterans' Appeals (Board) from a November 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before a Decision Review Officer at a hearing in May 2013 and a transcript of that hearing is of record. The September 2014 VA substantive appeal requested a hearing before the Board. However, that request was withdrawn by the Veteran's attorney in July 2016. 38 C.F.R. § 20.704(e) (2015). At that time, the Veteran's attorney also stated that a decision should be made on the evidence of record, and a brief that would be forthcoming, and requested 30 days to submit additional argument. The Veteran's attorney did not submit additional argument within 30 days. The Board will proceed with adjudication of the appeal. The issues of entitlement to service connection for a psychiatric disability and a heart disability are REMANDED to the Agency of Original Jurisdiction. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Residuals of left eye shingles, including unstable scarring, are not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for residuals of left eye shingles, including unstable scarring, have not been met. 38 U.S.C.A. §§ 1151, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The RO provided the Veteran with proper notice regarding the claim of entitlement to compensation under 38 U.S.C.A. § 1151 in January 2011. Regarding the duty to assist, the RO has obtained the Veteran's relevant VA treatment records, private treatment records, and lay statements, all of which have been associated with the claims file. VA obtained a relevant medical opinion in April 2012. The VA examiner's opinion is adequate to adjudicate the claim as the examiner considered the Veteran's relevant medical history, reviewed the claims file, and provided a rationale to support the resulting opinion. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (examination considered adequate when based on consideration of prior medical history and examinations, and describes the disability in sufficient detail so that Board's evaluation of the disability will be a fully informed one). Neither the Veteran nor representative has identified any additional evidence relevant to the claim adjudicated. Therefore, no further notice or assistance is required and appellate review may proceed. Compensation under 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability in the same manner as if that 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 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.A. § 1151(a) (West 2014). To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361(b) (2015). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2015). Hospital care, medical or surgical treatment, or examination cannot cause the 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(c)(2) (2015). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3) (2015). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2015). 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 additional disability. 38 C.F.R. § 3.361(c) (2015). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, representative's informed consent. 38 C.F.R. § 3.361(d)(1) (2015). 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. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2015). The Veteran asserts that he has additional disability due to residuals of left eye shingles, including unstable scarring, as a result of being misdiagnosed by emergency room staff and being given a steroid shot instead of antibiotics, which accelerated the left eye shingles and the resulting additional disability. VA treatment records document that during the summer of 2010, the Veteran was receiving chemotherapy treatment for chronic lymphocytic leukemia (CLL), which was treated with two chemotherapy drugs, Rituxan and fludarabine; he received his last cycle of chemotherapy in July 2010. The following month, he returned for follow up blood studies and complained of a headache for several days, for which he was prescribed Darvocet. The following morning, the Veteran went to the emergency room after he developed a rash on his face. He reported that he had started a new pain medication, after which the rash started, and stated that it did not itch, but burned a little. the condition was assessed as a skin rash of the face, greater on the left side, and he was given a Depo-Medrol injection and prescribed a Medrol Dosepak steroid treatment, after which he was discharged in satisfactory condition. Private treatment records from August 2010 document that a few days after the emergency room visit, the Veteran complained of swelling and burning which had progressed to the right side of his face, in addition to sores on the forehead and scalp. He was assessed with herpes zoster (shingles). VA treatment records document that a nurse from the private medical clinic contacted the VA Medical Center to inform them that the Veteran had developed shingles on his face which had spread to his eye. The following day, the Veteran was seen by his VA oncologist, who documented that the Veteran had classic herpes zoster involving half of the face and left eye. In order to minimize damage to the eye and prevent systemic dissemination, the Veteran was started on anti-viral medication (Valtrex) and sent to the optometry clinic for further examination. The optometrist diagnosed herpes zoster ophthalmicus in the left eye and prescribed an antibiotic and an anti-viral medication, acyclovir. Thereafter, the Veteran was seen regularly by the VA optometry clinic to monitor the progress of the condition. In November 2010, he was given another course of acyclovir. In May 2011, some degree of corneal scarring was documented, but it was noted that the Veteran's reduced vision appeared to be related to a cataract more than the corneal scarring. In September 2011, corneal scarring was again noted. However, it was stated that most of the Veteran's vision loss was due to dense cataracts in both eyes. VA obtained an expert medical opinion regarding the Veteran's claim in April 2012. Following a thorough review of the evidence of record, the VA examiner opined that based upon a file review and more than 30 years of expertise as a board-certified oncologist-hematologist, including treatment of patients with CLL and herpes zoster and as a former Chief of Oncology-Hematology at the Mountain Home VA Medical Center (VAMC), the Veteran's residuals of left eye shingles, to include unstable scarring, were not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, or medical or surgical treatment. The examiner stated that patients with CLL, including those not receiving chemotherapy, are more susceptible to herpes zoster (shingles) and because of their compromised immune status, they are also more likely to develop disseminated disease. The Veteran's shingles did not disseminate. Rather, it remained confined to the left side of the face, including the left eye. The examiner stated that, as a general rule, the sooner herpes zoster is diagnosed, the more likely anti-viral medication will control the infection and limit damage to specific organs. However, the VA examiner opined that the care provided by the VA oncology clinic up to the development of the herpes zoster adhered to accepted standards of care, as did the care following the definitive zoster ophthalmicus diagnosis by the VA optometry clinic. The examiner found that the issue of care to be addressed involved whether the emergency room physician should have made a diagnosis of herpes zoster when the Veteran presented with the new facial rash in August 2010. The examiner stated that had the diagnosis been made at that time, anti-viral medication would have been initiated four days earlier and possibly reduced damage to the cornea and prevented corneal scarring. However, the examiner noted that one of the problems with herpes zoster is that at its onset it can be difficult to diagnose, even in individuals predisposed to the disease, like those with CLL, as the earliest rash is not the classical vesicular rash sharply demarcated to one side of the body and associated with pain and, in the case of eye involvement, visual blurring. The examiner stated that when the Veteran was seen in the emergency room, the rash had just begun that morning and it had not evolved into a typical vesicular rash and was not associated with pain or blurred vision. In fact, VA treatment records document that the Veteran was not in acute distress and had no complaints other than the rash, which appeared to involve both sides of the face, although it was greater on the left. The Veteran's only complaint the previous day was a headache, for which he was prescribed Darvocet. There was no rash at that time or any other complaint. In retrospect, the examiner noted that the headache was most likely an early non-specific symptom of the herpes zoster, but at that early stage of herpes zoster, neither the oncologist nor the emergency room physician was able to make the correct diagnosis due solely to the atypical features at that time which masked the correct diagnosis. The examiner further noted that although at the time the VA optometrist made the diagnosis of herpes zoster of the left eye, the Veteran stated that he had gone to the emergency room four days earlier because he felt he had sand in his eye and could not see, that was not supported by the emergency room treatment notes which did not indicate any complaints related to his eye. In summary, the examiner concluded that the failure of the VA emergency room physician and oncologist to make a diagnosis of herpes zoster with eye involvement was not the result of carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault of the part of the VA medical staff in furnishing hospital care and medical treatment. The Board assigns great probative weight to the competent, probative, and comprehensive findings of the April 2012 VA examiner. The opinion was made following a thorough review of the claims file and medical history. Notably, the VA examiner concluded that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in furnishing hospital care and medical treatment to the Veteran. The Board acknowledges that the Veteran is competent to report his observable symptoms, including burning, itching, and blurred vision. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that the Veteran attributes the acceleration of the conditions, including left eye shingles, to the careless or negligent administration of steroid medication by VA emergency room staff, such a determination involves complex medical findings beyond the Veteran's lay competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, The Veteran's statements in that regard are of less probative value than the findings of the April 2012 VA examiner discussed above. The Veteran's private physician submitted a November 2010 letter which stated that the Veteran presented to his clinic with shingles under the left eye a few days after he was seen at the VA emergency room with the same complaint and was given a Medrol dose pack and a steroid injection, but no antiviral medications. To the extent that statement attributes carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault of the part of VA medical staff in furnishing hospital care and medical treatment to the Veteran given his "same complaint," the Board notes that, the April 2012 VA examiner found that at the time of the initial emergency room visit, the Veteran did not complain about the left eye. Rather, VA treatment records document that he reported a rash on the face, which did not itch but burned a little, after starting a new pain medication the day before. Therefore, the Board finds that private physician statement does not support a finding that it is at least as likely as not that there is any additional disability due to attributes carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault of the part of VA. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left eye shingles, including unstable scarring. There competent and probative evidence of record does not support a finding that any additional disability was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. Accordingly, the criteria for VA compensation benefits under 38 U.S.C.A. § 1151 are not met, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left eye shingles, including unstable scarring, is denied. REMAND The Board finds that additional development is necessary prior to adjudication of the claims of entitlement to service connection for psychiatric and heart disabilities. VA treatment records document various psychiatric diagnoses, including depression, anxiety, and PTSD. In March 2011, he reported ongoing depression following the death of his daughter. However, he also discussed his history of irritability and that he felt guilty regarding an incident that occurred during active service. In September 2011, he was assessed with PTSD which was attributed to maneuvers during active service that resulted in bloodshed. Additionally, a January 2012 VA treatment record documents an assessment of PTSD. In particular, service connection for PTSD requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2015). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association. 38 C.F.R. § 4.125(a) (2015). In order to grant service connection for PTSD to a non-combat Veteran, there must be independent credible evidence to support the Veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307 (1997). However, those service records which are available must support and not contradict the Veteran's lay statements regarding the claimed stressor. Doran v. Brown, 6 Vet. App. 283 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). VA treatment records document an assessment of PTSD which has been attributed to the Veteran's active service. Therefore, the remaining question is whether there is credible supporting evidence that the Veteran's claimed in-service stressor actually occurred. The Veteran has consistently reported that his claimed psychiatric disability is the result of an in-service stressor event involving a live fire training exercise at Fort Riley, Kansas in 1956 that resulted in two casualties for which the Veteran bears responsibility due to his orders. VA has sought to verify the Veteran's claimed in-service stressor by requesting corroborating records from Joint Service Records Research Center (JSRRC) using the Defense Personnel Records Information Retrieval System (DPRIS). A June 2013 DPRIS response indicates that research of United States Army historical records, coordinated with the National Archives and Records Administration (NARA), was unable to locate any unit records pertaining to the Veteran's reported unit, 18th Infantry Regiment, at Fort Riley Kansas for the calendar year of 1956. Additionally, a review of the casualty data available to DPRIS did not document an injury to a soldier that the Veteran had specified by name. However, the DPRIS response also stated that there might be a related criminal investigation filed on the incident and the provided an address to request documentation from the Director of the United States Army Crime Records Center (CRC). Additionally, a review of the morning report was also recommended. Significantly, it does not appear that the RO acted in response to the DPRIS suggestion to request documentation of a possible related criminal investigation or to review the relevant morning report. Thus, as it appears that there may be available records pertinent to the Veteran's claim that are not associated with the record, a remand is required to obtain such records in order to assist with corroboration of the reported in-service stressor. 38 C.F.R. § 3.159(c)(2) (2015); M21-1MR, Part IV, Subpart ii, Chapter 1, Section D.5. The Veteran has claimed a heart disability is due to active service or to a psychiatric disability. That claim is inextricably intertwined with the claim of entitlement to service connection for a psychiatric disability which is being remanded. Two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. Therefore, remand of the heart claim is also warranted, and its adjudication must be deferred pending the additional development requested regarding corroboration of the reported in-service stressor. Harris v. Derwinski, 1 Vet. App. 180 (1991) Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Take all appropriate steps to verify the Veteran's claimed in-service stressor, to include contacting the United States Army Crime Records Center (CRC), National Personnel Records Center (NPRC), the Records Management Center (RMC), or any other appropriate records repository, to request any outstanding United States Army criminal investigation records or any other relevant records, to specifically include relevant morning reports for the claimed dates, related to the Veteran's reported in-service stressor. 2. If the reported in-service stressor is verified, schedule the Veteran for a VA psychiatric examination by a psychologist or psychiatrist. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability is related to service, or to any corroborated in-service stressor reported by the Veteran. A complete rationale for any opinion expressed must be provided, including references to the relevant evidence of record. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs