Citation Nr: 1037671 Decision Date: 10/05/10 Archive Date: 10/12/10 DOCKET NO. 09-06 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a mental disorder claimed to be due treatment occurring at a VA facility. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and two observers ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975. This matter comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran was provided a Central Office Board hearing in September 2009. A transcript of the testimony offered at this hearing has been associated with the claims file. This matter was last before the Board in November 2009 when it was remanded for further development. That development was completed and the matter is now ready for consideration by the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Following the Board's remand, the Veteran submitted numerous audiotapes of recordings of his psychotherapy sessions and letters from private physicians. At his Board hearing, the Veteran and his representative indicated that they wished to prospectively waive initial RO consideration of this evidence. In this regard, the Board may consider this evidence in the first instance because the Veteran has waived RO consideration thereof. See 38 C.F.R. § 20.1304(c) (2009). FINDINGS OF FACT The Veteran's mental disorder is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital/medical treatment, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for a mental disorder, claimed as due to VA care, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in May 2008. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that the claim is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Id. VA has obtained the Veteran's service treatment records, VA records, and Social Security Administration (SSA) records, assisted the Veteran in obtaining evidence, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Board recognizes that assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will discussed in more detail below, the record is absent for competent medical evidence that additional disability resulted as a consequence of negligence, careless, or other fault on the part of VA, or an event not reasonably foreseeable. The Board cognizant that there are instances in which lay testimony can serve to establish an association between service and the claimed disability or death for the purpose of satisfying the criteria of McLendon. See Charles v. Principi, 16 Vet. App. 370 (2002). For example, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder, and their lay testimony as to a continuity of symptomatology can satisfy the requirements of McLendon. However, the Board finds that a lay person is not be competent to offer an opinion on a matter clearly requiring medical expertise, such as determining whether a health care provider was negligent or careless or otherwise at fault for additional disability resulting from a delay in diagnosis or a misdiagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that this is not a case in which the Veteran's lay assertions can satisfy the criteria for obtaining a VA opinion or examination. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C.A. § 1151, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care 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). In addition to a showing of additional disability or death, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran and his representative in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). 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. 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background The Veteran is seeking entitlement to compensation under the provisions of 38 U.S.C.A. § 1511 on two theories. First, the Veteran asserts that VA failed to timely diagnose and treat breast cancer, which led to the development and/or aggravation of a mental disability. Secondly, he asserts that VA incorrectly diagnosed him as having bipolar disorder, which, in turn, caused or aggravated a mental disability. Of record is a November 1999 private treatment record from M.A.N., M.D. This record documents a recent diagnosis of male breast cancer, with a history of a firm lump in the left breast for about 2 years, which the Veteran attributed to old trauma. This record notes that the Veteran underwent a mastectomy around this time and that chemotherapy was recommended as the recurrence of breast cancer over the next 5 years with surgery alone was 25 to 35 percent. A February 2001 note from Dr. M.A.N. notes that the Veteran had stage II, node negative breast cancer. This record documents that the Veteran had received 4 cycles of adjuvant chemotherapy with Adriamycin and Cytoxan in February 2000. The Veteran reported that he was doing well at this time and examination showed no evidence of disease. In early August 2002 the Veteran was involuntarily admitted to the University of Kansas Hospital. The record associated with this admission note that the Veteran was admitted to this facility following an incident where he tried to take his 10 year-old son to Des Moines armed with a pistol. At this time, the Veteran maintained that he was simply leaving for Des Moines to see his father with his son and that the Veteran's father had asked him to bring the pistol. The Veteran was thereafter chased and arrested by police and involuntarily admitted for psychiatric treatment. Examination resulted in an assessment of bipolar mood disorder, manic episode, with a GAF score of 35. In February 2005 the Veteran presented at the Kansas City VA Medical Center (VAMC) to establish care. At this time, he expressed that he desired to use the VAMC to check up on possible breast cancer. In March 2005 the Veteran received a mental health history and physical evaluation. It was noted that this was the Veteran's initial presentation for mental health treatment and that he "want[ed] to get something started to help straighten out [his] life," although he felt that he did not have a psychiatric disorder. The Veteran indicated that he sought this evaluation to confirm that he was misdiagnosed at the University of Kansas Medical Center (KUMC) in 2002 when, as noted above, he was involuntarily admitted to this facility. Examination resulted in an assessment of unspecified paranoid disorder with a GAF score of 40. An April 2005 mental health note documents the Veteran's prior assessment of bipolar mood disorder at KUMC. The Veteran related that he felt that this diagnosis had been the cause of a lot of his problems and that he sought reevaluation and a change in this diagnosis. An assessment of unspecified paranoid disorder with a GAF score of 40 was continued. In mid-May 2005 the Veteran presented at the Kansas City VAMC for an unscheduled psychiatric appointment. This note documents that the Veteran remained obsessed with proving a conspiracy between his former employer, KUMC and the police and that he refused to accept that he had any psychiatric illness. He refused, therefore, to take any medications. He stated at this time that "they say I'm crazy, so I might as well get disability." Unspecified paranoid disorder was assessed at this time. A late June 2005 SSA consultation note documents that the Veteran alleged that he had posttraumatic stress disorder (PTSD). This note documents that Veteran's history and his belief that he was wrongly diagnosed and hospitalized in August 2002 for bipolar disorder. This note reflects that the Veteran continued to deny that he had any mental health issues and that he continued to refuse the treatment most likely to assist him. In early July 2005 the Veteran was once again seen for a psychiatric evaluation. At this time, the Veteran reported that he had a restraining order issued against him by his "wife and the church for terroristic threats," but did not elaborate. He informed that he had been in jail for about 20 days for "tampering with a witness," but likewise did not elaborate. He became adamant and verbally loud when discussing his 2002 involuntary hospitalization at KUMC and how he had contacted lawyers to help remove the diagnosis of bipolar disorder from his records. He was then reading the Bible, rather than taking his medication for his mood. He expressed that he felt people were trying to label him and that he was not mentally ill. He adamantly refused any medication. A VAMC psychiatry note dated later in July notes similar complaints and an assessment of probable mood disorder, current manic episode. The Veteran was encouraged to consider a trial of medication to address his current mood symptoms of grandiosity and paranoia, but declined to do so. The Veteran was next seen at the Kansas City VAMC for psychiatric treatment in December 2005. At this time, the Veteran reported that since his last visit he had been jailed for 65 days for charges of "tampering with a witness" and for violating a no- contact order. The Veteran exhibited rapid, pressured speech and provided elaborate details about how he had recently been released from jail and had various attorneys working for him. He reported a recent incident of "them" being in his apartment and throwing his new socks "all over [his] apartment just to upset [him]." He related that people were "trying to get [him] and railroad [him]." He was irritable when questioned about his psychiatric symptoms and continued to deny that he had bipolar mood disorder or that he needed treatment of any kind. He denied anxiety and depression, as well as suicidal or homicidal ideations. He was assessed as having probable bipolar mood disorder, current mixed episode, with psychotic features. The examining physician attempted to discuss the Veteran's symptoms and treatment options, but the Veteran remained adamant that he had no psychiatric problems and needed no medication. A September 2006 Kansas City VAMC note documents a chief complaint of bipolar disorder and that the Veteran was being evaluated at the insistence of his probation officer. At this time, he still adamantly refused to take medication or believe that he had bipolar disorder, or any other mental health issues. The Veteran also talked about recently finding another breast lump. On the same day as his September 2006 psychiatric consultation, the Veteran was seen by Same Day Care with a complaint of pain in the right arm for a 2 week duration, apparently following an incident in which the Veteran hurt his arm preventing his grandson from falling off of a bed. In addition to the complaints of pain in this area, the Veteran reported his history of breast cancer on the right and a recent history of a lump under his arm for over a year, which had gotten bigger. The Veteran noted that he had not been followed by an oncologist in a long time due to lack of insurance, although he had an appointment with his primary care physician in about 1 week. An addendum to this note documents that a fine needle aspiration (FNA) biopsy was contemplated, but upon contacting the Veteran he informed that he had spoken with the providers that had originally performed his mastectomy and was told that he needed lymphadema therapy. In late September 2006 the Veteran underwent a FNA biopsy at the VAMC. This biopsy resulted in an assessment of recurring breast cancer. A full metastatic workup was advised, and if the lesion revealed by this biopsy was an isolated occurrence, excision was to be contemplated. In October 2006 the Veteran was seen at the VAMC for an oncology consultation. The Veteran's history of breast cancer in 1999 with subsequent treatment was noted, as was his recent history of recurrence of breast cancer. The assessment of right breast cancer was continued and a course of treatment was discussed and recommended. It is noted by the Board that Dr. B. conducted this consultation. An August 2007 oncology note from the Kansas City VAMC documents that Dr. B. called to request that the Veteran be prescribed ciprofloxacin (an antibiotic) for treatment of pneumonitis. The script was entered and it was noted that Dr. B. saw the Veteran at KUMC, but that the Veteran received his medications through VA. An October 2007 record from the Kansas City VAMC notes that the Veteran was then on therapy for advanced breast cancer at KUMC and had been admitted to this facility the prior week for cellulitis in the right upper extremity, the same site as his prior mastectomy. The Veteran apparently had a major penicillin reaction in the past and was discharged from KUMC on Vancomycin (an antibiotic). The Veteran requested that he obtain this antibiotic through the VAMC. Subsequent notes document the Veteran's history of breast cancer, and that he was getting his treatment for this condition at KUMC. See e.g. November 6, 2007, VAMC oncology addendum. Of record is a January 2008 VAMC primary care note. This note documents that the Veteran had finished radiation treatment for breast cancer and was being treated with medication for this ailment. The Veteran expressed at this time that he was not comfortable with his care through VA and was having Dr. B. treat him at KUMC. In April 2008 the Veteran presented at the Kansas City VAMC for an oncology consultation. It was noted that the Veteran had been seen at the VAMC by Dr. B initially in October 2006 before transferring his primary oncology care to KUMC, where he was then followed by Dr. B. It was noted that VA had minimal records in this regard, particularly due to his having sought treatment at KUMC. The Veteran primarily sought to get his medications for treatment of breast cancer through VA at this time. He was given his medication. Subsequent records note that the Veteran was being treated by Dr. B. at KUMC for breast cancer and that he utilized VA for only his medications in this regard. Of record is an April 2008 statement from the Veteran. In this statement the Veteran related that he felt that he was not properly treated for his mental problems that he had and continued to struggle with them every day. He stated that the VA doctors treated him for a condition that he did not have and that as he felt that he was not being properly treated, he stopped all treatment in the mental hygiene clinic. In a February 2009 statement the Veteran related that he felt that his case was decided incorrectly because his "mental condition was made worse by the fact [he] did not receive proper and timely treatment for [his] breast cancer condition." He stated that he "constantly had to urge [his] treating doctor at the Kansas City VAMC that [he] had some problems" but that the doctor "would not run any additional" testing and that although additional testing was eventually performed and it was determined that he had breast cancer, "[he] went into a serious state of depression as [he] felt that [he] was not properly treated." Of record is an August 2009 mental health physician note from the Leavenworth VAMC. This note documents that the Veteran presented to the VAMC saying that he received a call from the VA hospital that he had been scheduled for an appointment. A review of the Veteran's records, however, showed no pending psychiatric consults or appointments. The Veteran clearly denied current depression, mania, hypomania or psychosis. He had no current complaints and did not want to take any psychiatric medication, but was willing to see psychology for individual psychotherapy to help increase coping skills. The Veteran discussed multiple complex social issues, including "misdiagnosis of bipolar disorder" by the Kansas City VAMC. Shortly thereafter, the Veteran began individual psychotherapy in September 2009 at the Leavenworth VAMC. At his initial visit the Veteran discussed his history with medical professionals, as well as ongoing litigation with a former employer and his upcoming Board hearing. Dysthimic disorder was assessed at this time, although his VA problem list documents a diagnosis of bipolar disorder and bipolar disorder was assessed during individual psychotherapy. See e.g. November 6, 2009, and January 15, 2010, individual psychotherapy notes. The Veteran continued individual psychotherapy through the VAMC. In this regard the Board notes that the Veteran has submitted several audio tapes recordings of his individual psychotherapy sessions. The Board has examined them and notes that they reflect his discussions and treatment with the VA clinician. In September 2009 the Veteran testified before the Board. At this time, he offered a history of his breast cancer and asserted that from 2003 to 2005 when he sought VA treatment thereof he had offered complaints of pressure and tingling in his arm, but that VA refused to acknowledge the possibility of cancer. He expressed that he ultimately had to "trick" VA into performing a biopsy in 2006, which he asserts should have been done earlier. Likewise, he contended that his psychiatric condition was misdiagnosed. Of record is a July 2010 letter from S.G.O., Ph. D., a supervisory clinical psychologist at the Leavenworth VAMC. This letter documents that the Veteran asked this doctor to clarify his diagnosis. Dr. S.G.O. related that the issues that the Veteran had fell under the heading of depression, rather than bipolar disorder. He noted that the Veteran often appeared to be dysphoric, somewhat lacking in energy and often rather overly- focused in thought, rather than in action, which would be typical of a patient with mania. The Veteran submitted another letter from a private psychologist, P.D.W., Ph. D., in which this doctor stated that the diagnosis did not include bipolar disorder. Analysis The Board will first address the Veteran's assertion that his recurrence of breast cancer was not timely diagnosed. In this regard, the record reflects that the Veteran was given a needle biopsy shortly after complaining of arm pain in September 2006 that resulted in an assessment of breast cancer. The Veteran then transferred his care to KUMC and VA had no part in that care, besides providing him medications. The record does reflect that the Veteran reported his history of breast cancer to VA health care providers on several occasions prior to September 2006, to include when he first began receiving regular treatment at VA in February 2005. It also appears that he did express an interest in getting follow-up care in regard to that history when he enrolled with VA. However, during the period prior to September 2006, it appears that most of his actual medical treatment was in regard to mental health care, and it does not appear that he identified any actual symptoms or other health problems that were suspected as being related to his history of breast cancer until September 2006. As noted, at that time, he immediately underwent a biopsy and his case was transferred to KUMC. There is nothing in the medical records from VA to suggest that the diagnosis of breast cancer was not made in a timely fashion. As discussed above, the Board has considered the Veteran's assertions. However, as a layperson, is not competent to comment on the timeliness of a diagnosis of cancer, such as in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Furthermore, the Board notes that there are significant inconsistencies between the Veteran's description of his interactions with VA health care providers prior to September 2006, and those interactions as described in his medical records. In particular, although the Veteran testified during his hearing that he repeatedly complained of left arm symptoms from 2003 to 2005, and that he repeatedly told his health care providers that it might be cancer, the Board notes that such reports are not documented in his record. As noted, the treatment records associated with the claims file establish that the Veteran first presented to VA for care in February 2005. Although he did report a past history of breast cancer, and that he was interested in getting follow-up care from VA, the record does not reflect that he actually complained of any symptoms he believed to be related to such history. In fact, as noted above, most documented complaints noted throughout 2005 treatment records are in regard to mental health care matters. The Board ultimately finds the contemporaneous treatment records to be more credible than the Veteran's more recent assertions that VA health care providers ignored his concerns prior to September 2006. The Veteran has also asserted that a misdiagnosis of bipolar disorder resulted in an additional psychiatric disability, either directly or through aggravation. The Board finds, however, that there is no competent evidence in this regard. The Board acknowledges that the Veteran has variously been diagnosed as having bipolar disorder, an unspecified paranoid disorder and most recently dysthymia and/or depression. The Veteran, as a layperson, is not competent to comment on whether such changes in diagnosis demonstrate negligence, careless, or other error on the part of previous VA health care providers. Jandreau, supra. Certainly, the Board is cognizant that the July 2010 letters indicate that the Veteran's psychiatric disorder more closely approximates depression, rather than bipolar disorder. Again, however, the authors of those letters do not suggest any carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on VA's part in rendering other diagnoses in the past. In summary, even assuming that the VA medical treatment resulted in additional disability, the Board finds that there is no competent evidence of fault on the part of VA in either failing to diagnose cancer prior to September 2006 or in previously assigning him a diagnosis of bipolar disorder. There has also been no suggestion in the lay or medical evidence of record that any additional disability was a result of an event not reasonably foreseeable during the course of his VA treatment. The Board has considered the Veteran's lay assertions; however, for the reasons set forth above, the Board finds that this is not a case in which his lay assertions can serve to support his claim for compensation. Thus, the Board finds that the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.102 (2009). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a mental disorder claimed to be due treatment occurring at a VA facility is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs