Citation Nr: 1335240	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  07-26 885	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington

THE ISSUES

1.  Entitlement to compensation under 38 U.S.C.A. § 1151 for psychological damage.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for partial loss of the left hand. 

3.  Entitlement to compensation under 38 U.S.C.A. § 1151 for left leg disability.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran had active military service from March 1967 to October 1968.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  A rating decision in July 2004, but sent to the Veteran in November 2004, denied his claims of entitlement to § 1151 compensation for partial loss of his left hand, left leg disability, and psychological damage.  A December 2005 rating decision denied his claims on the basis that new and material evidence had not been submitted.  A January 2007 rating decision again denied his claims on the basis that new and material evidence had not been submitted and determined there was not clear and unmistakable error (CUE) in the prior denials of these claims.

In October 2009, as support for the petition to reopen these claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board.  This type of hearing is often referred to as a Travel Board hearing.  The Veteran submitted additional evidence during the hearing and waived his right to have the RO initially consider it.  38 C.F.R. §§ 20.800, 20.1304 (2013).

That initial July 2004 decision that was sent to the Veteran in November 2004 never became final and binding and, thus, there does not have to be new and material evidence since that decision to reopen these claims.  Instead, these claims may be immediately readjudicated on their underlying merits.  Records show the Veteran went to the RO in August 2005, so within one year of receiving notification of that decision in November 2004, inquiring as to whether the binder of evidence he had submitted had been considered in that November 2004 rating decision.  He was informed that the evidence was not considered and that it had not been associated with his claims file.  The RO employee that spoke with him and documented their discussion confirmed that, on that date, August 10, 2005, he had submitted this additional evidence.  The RO employee signed the document he added to the claims file recording their discussion.  And while review of the claims file reveals that this new evidence is not date-stamped, and that it is not in chronological order with regards to the record of that August 2010 RO visit, it is three-hole punched and appears to have come from the binder the Veteran described.  The Board thus presumes that it is indeed the evidence the Veteran submitted to the RO in August 2005.  See Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004) ("The presumption of [administrative] regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) ("The [presumption of administrative regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.").

Although that August 2005 RO visit and submission of evidence was not a notice of disagreement (NOD) with the November 2004 rating decision, the submission of that additional evidence was prior to expiration of the one year the Veteran had for appealing that November 2004 decision, which did not end until November 2005, and was new and material evidence pertaining to the claims that were denied in that decision.  See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); and Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Specifically, this evidence included additional VA treatment records and his personal statements.  The RO considered his August 2005 visit and submission of this evidence as a petition to reopen his previously denied claims, which, significantly, had not become final and binding, though considered as if they had been when readjudicated in December 2005 and January 2007.  There resultantly need not be new and material evidence to reopen these claims.  Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

Moreover, to the extent the RO determined in its January 2007 rating decision that there was not CUE in the prior denials of these claims, any such CUE claim is not ripe for adjudication since, by definition, it is a collateral (after-the-fact) attack of a prior decision that has become final and binding.  And, here, the November 2004 rating decision is not yet final and binding.  See 38 C.F.R. § 3.105(a) (2013).

In June 2010, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and readjudication.  

In August 2012, the Board again remanded these claims to the RO via the AMC for still further development of the evidence, which since has been accomplished satisfactorily, allowing the Board to now decide two of these three claims.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall v. West, 11 Vet. App. 268 (1998), when the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

The claim of entitlement to § 1151 compensation for left leg disability, however, requires even more development before being decided on appeal, so the Board is yet again remanding this claim to the RO via the AMC in Washington, DC.


FINDINGS OF FACT

1.  The Veteran has no "additional disability" regarding his mental state as a result of VA treatment he received from November 1969 to March 1970.

2.  Moreover, the partial loss of his left hand is unrelated to VA medical treatment.


CONCLUSIONS OF LAW

1.  The criteria are not met for § 1151 compensation for "psychological damage".  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013).

2.  The criteria also are not met for § 1151 compensation for partial loss of the left hand.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), redefined VA's duties to notify and assist a Veteran in the development of a claim for VA compensation or other benefits upon receipt of a complete or substantially complete application.  The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The notice requirements of the VCAA require VA to notify the claimant of the information or evidence necessary to substantiate the claim and of the subset of this necessary information or evidence in terms of who is to provide it, him or VA.  The so-called "fourth element" of the notice requirement requesting that he also provide any evidence in his personal possession pertaining to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  73 Fed. Reg. 23,353-356 (April 30, 2008).

The United States Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  (1) Veteran status; 
(2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date of the disability.  A claim for § 1151 compensation is akin to a claim for service connection since the disability claimed, if shown to be entitled to this compensation, is treated for all intents and purposes as though it is a 
service-connected disability.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.


Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2010 that informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this necessary supporting evidence.  This notice duty informed him of all of the elements necessary for obtaining benefits under 38 U.S.C.A. § 1151 and of the provisions related to "downstream" disability ratings and effective dates.  And although that notice was not provided prior to initially adjudicating his claims, they since have been readjudicated on several occasions - including most recently in an August 2013 supplemental statement of the case (SSOC) - which "cured" the timing defect in the provision of the notice.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC) to cure a timing of notification defect).  See also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The VCAA also requires that VA make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, irrespective of whether they are in the custody of a Federal department or agency or, instead, a private provider, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

To this end, VA has obtained records of treatment reported by the Veteran, including his service treatment records (STRs) and post-service VA treatment records.  The claims file also contains Social Security Administration (SSA) records, as well as private medical treatment records.  Additionally, the Veteran was provided a VA examination in May 2013 in furtherance of his claims.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds the May 2013 VA examination and opinion obtained in this case adequate, as it is predicated on a full reading of the medical records in the Veteran's claims file for the pertinent history.  The examiner considered all of the noteworthy evidence of record, including the Veteran's personal statements, and provided explanatory rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion in response to these § 1151 claims has been met.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

As already alluded to, the Veteran testified before the undersigned VLJ of the Board during an October 2009 hearing at the RO.  According to 38 C.F.R. § 3.103(c)(2), it is the responsibility of the presiding VLJ to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked and that would be advantageous to his position.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the VLJ's duties under §  3.103(c)(2) are twofold.  First, the VLJ must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the VLJ must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

Here, the determinative issue is whether the Veteran is entitled to § 1151 compensation for his claimed conditions.  During the hearing, there was no confusion that he needed to present evidence regarding the nature of VA hospital treatment and these injuries alleged to be associated with or the result of that VA treatment, as that comprised the bulk of his testimony.  In the questioning and responses, he and his representative evidenced their actual knowledge of the type of evidence needed to substantiate the claims.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  Indeed, during the hearing, the VA medical treatment at issue and a subsequent accident were discussed at length.  And the presiding VLJ expounded on this, further explaining the requirements for establishing entitlement.  Thus, the Board finds that the presiding VLJ's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claims and to suggest the submission of evidence when it is missing or has been overlooked has been satisfied.  Id. at 496-97.

The Veteran has not alleged that there were any deficiencies in that hearing related to the presiding VLJ's duties under §  3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  Moreover, even assuming there was such a deficiency, the Board finds that it did not prejudice the Veteran's claims.  In Bryant, the Court held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability (keeping in mind that the claim in that case was for service connection rather than, as here, for compensation for essentially negligent VA hospital care), the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit.  Bryant, 23 Vet. App. at 498-99.  In this case, given the development of the Veteran's claims that has occurred, including especially since that hearing and more recent remand of the claims, the Board finds that any deficiency in that hearing was non-prejudicial.  This appeal thus is ready to be considered on the merits, at least as concerning the claims being adjudicated.

Standard of Review

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2013) (reasonable doubt to be resolved in veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.


Governing Statues, Regulations and Cases

For § 1151 claims, as here, filed on or after October 1, 1997, the Veteran must show that the VA treatment in question resulted in additional disability and, further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event that was not reasonably foreseeable.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361; VAOPGCPREC 40-97 (Dec. 31, 1997).

In determining whether additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped.  38 C.F.R. § 3.361(b).

Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation.  In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability.  If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation.  See 38 C.F.R. § 3.361(c)(1).

Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause.  To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the Veteran's informed consent.  38 C.F.R. § 3.361(d)(1).

Proximate cause also may be established where the Veteran's additional disability was an event not reasonably foreseeable - 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32 (2013)).  See 38 C.F.R. § 3.361(d)(2).

The Veterans Court (CAVC) recently clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a Veteran with the same characteristics as the Veteran in a given case.  See Schertz v. Shinseki, No. 11-2694 (Vet. App. Sept. 26, 2013).

Factual Background

Psychological Damage and Partial Loss of the Left Hand

The Veteran alleges that psychiatric treatment received at the VA Medical Centers (VAMCs) in Bay Pines, Florida, and Waco, Texas, from November 1969 to March 1970, i.e., relatively shortly after the conclusion of his service, was inadequate in that he was not properly diagnosed or treated and that in turn resulted in even greater mental illness.  He further alleges that caused him to engage in what amounted to reckless and dangerous behavior that included flying a gyrocopter in bad weather causing him to have an accident in which he lost part of his left hand when it was caught in the propeller.

The evidence reflects that he did not exhibit any psychiatric symptoms at the time of his enlistment into the military.  At some point during his service in Vietnam, he began displaying psychotic symptoms to such an extent that he was hospitalized.  He received extensive inpatient treatment and subsequently was discharged from the military in October 1968.

Post service, he continued receiving outpatient treatment at the Dallas VAMC.

In the summer or fall of 1969, he apparently stopped seeking psychiatric treatment and resultantly again began displaying psychotic symptoms.  In November 1969, he moved from Texas to Florida where he was arrested and involuntarily detained because of bizarre behavior and disorderly conduct.  Indeed, a November 1969 court order mandating detention in a mental ward indicated he had paranoid schizophrenia and that his propensities consisted of violent behavior and delusions.  Within a few days of his arrest, he was transferred from a non VA facility to the Bay Pines VAMC.  Because he had arrived from Texas, he was then transferred to the Waco VAMC where he was treated on an inpatient basis until March 1970.

Before transfer to the Bay Pines VAMC, he spent two days at a non-VA facility.  The discharge diagnosis was paranoid schizophrenia.  Throughout his stay at that facility, he remained loosely associated and somewhat delusional and inappropriate.  Apparently the Secret Service had taken an interest in him due to his threats on then President Nixon and the Apollo XII mission.  It was for that reason that steps were taken to have him transferred to a VA facility.

On admission at the Waco VAMC in November 1969, it was noted that the events leading to the then present hospitalization had begun some two months earlier.  The Veteran had gone through a "high" period.  He was restless and hyperactive and not sleeping and eating properly.  Furthermore, he was not taking his prescribed psychotropic medication.  Three weeks prior to admission to the Waco VAMC, he had decided to move to Florida.  Three days after arriving in Florida, he had begun exhibiting outward signs of bizarre behavior.  He was arrested for disorderly conduct and disturbing the peace.  The arrest followed a threat to an employee of a major airline who had refused to allow him to charter a plane.  He wanted to charter the plane in order to fly his family from Texas to Florida to attend his wedding, although he had made no other wedding plans and, indeed, it appears there was not another party who even had agreed to marry him.  After his arrest, he made a suicide attempt and threatened to harm President Nixon as well as the Apollo XII.  

By the time he arrived at the Waco VAMC, his psychotic symptoms were in partial remission.  The diagnosis on admission at the Waco VAMC was schizophrenia, paranoid type, in partial remission.

He was discharged from the Waco VAMC in March 1970.  The discharge report reflects that, after his initial hospitalization, he made improvement and socialized better although he remained anxious.  The psychotic symptoms decreased, and he went into partial remission of his symptoms.  He was transferred to a less restricted ward and continued to show improvement.  His medications were changed.  Towards the end of his hospitalization, he went on a two-week leave of absence to verify whether he was ready for discharge.  During his stay at the Waco VAMC, the Secret Service apparently had indicated that it had no further interest in him.  Just prior to the leave of absence, his prognosis was considered "fair."  However, it was determined that he had received the maximum benefit of hospitalization.  On discharge, he was given 60 days worth of medication, referred to the Dallas VAMC for outpatient treatment, and his family agreed to assist.  The examiner assessed that the Veteran was "probably competent" on discharge.

Approximately eight months later, he flew a gyrocopter, had the accident at issue, and consequently lost part of his left hand.

A February 1975 VA psychiatric evaluation report indicated he had schizophrenic reaction, paranoid type, in remission.

A January 2003 VA psychological consultation report revealed he had symptoms of attention deficit hyperactivity disorder (ADHD).

A February 2003 VA progress note indicated he and a VA clinician were exploring the possibility that he might be suffering from bipolar disorder.


During a February 2003 VA mental disorders examination, the examiner indicated that he did not review the claims file.  However, he reviewed all VA clinical records as well as copies of the contents of the claims file provided by the Veteran.  The Veteran described difficulty organizing his thoughts, trouble relating to people, self-sabotaging activities, depression, guilt, nightmares, intrusive thoughts, etc.  The examiner indicated the Veteran's symptoms had been present for a long time and that he had been diagnosed at various times with schizophrenia, bipolar disorder, adult hyperactivity disorder, and posttraumatic stress disorder (PTSD).  His speech was rambling and verbose, and he needed direction to stay on topic.  The examiner diagnosed psychosis, not otherwise specified residual; chronic moderate PTSD; mild to moderate dysthymia; disorganized speech consistent with a thought disorder or ADHD; and alcohol abuse in full remission.

In June 2005, the Veteran presented with complaints of anxiety and mania.  There was no objective evidence of mania, psychosis, delusional thinking, suicidal ideation, homicidal ideation, or evidence of acute dangerousness.  

During his October 2009 hearing before the Board, the Veteran testified that he was misdiagnosed at the Bay Pines and Waco VAMCs and that he was not suffering from paranoid schizophrenia, instead from bipolar disorder.  He asserted that the medications provided were not the right ones because of that misdiagnosis and that he consequently continued having mood swings after his release.  According to him, it was during one of those mood swings, presumably a manic episode, when he decided to fly the gyrocopter recklessly, which unfortunately resulted in the partial loss of his left hand.  He held up this partial hand at the conclusion of the hearing to show the extent of the damage inflicted.

The Board remanded this claim in August 2012, including for a medical opinion.

In September 2012, the Veteran resultantly was examined by a VA psychologist.  The VA psychologist noted Axis I diagnoses of dementia not otherwise specified, Alzheimer's type; PTSD; and bipolar disorder.  He also noted the presence of ADHD.  According to the examiner, all of these disorders were "interactive and inseparable" and the symptoms of each could not be distinguished from the symptoms of the others.  According to the report, it appears the Veteran's functioning was significantly compromised on account of his dementia.  Indeed, he was unaware that he had children; that type of information was provided instead by his wife.  He was also considered unable to handle his finances.  Based on the review of the Veteran's records, the examiner observed the Veteran was psychiatrically hospitalized from November 1969 to March 1970 and found incompetent at that time and that it was more probable than not that his mental state at that time was affected by symptoms of PTSD, which in turn contributed to the crash of the gyrocopter and the loss of his left hand.

During a March 2013 VA mental disorders examination, a VA psychologist other than the one who had authored the September 2012 examination report reviewed the claims file and outlined the pertinent facts in great detail.  This additional VA psychologist concluded that the pertinent issue was whether the VA psychiatric treatment in 1969 and 1970 was careless, negligent, lacking in proper skill, etc. (i.e., satisfying the requirements of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361).  Because a response to these questions would entail a discussion of whether appropriate medications were prescribed during VA hospitalization at that time, a psychiatric examination was necessary, as a psychologist would not be able to give an expert opinion regarding psychotropic medication.

In May 2013, because of this additional need, a VA psychiatrist reviewed the record.  As to the September 2012 opinion of the VA psychologist who had determined the Veteran's mental state at the time of his aircraft crash subsequent to VA medical care was affected by symptoms of PTSD, which then contributed to the crash of the gyrocopter and unfortunate partial loss of his left hand, this commenting VA psychiatrist indicated that conclusion lacked a discernible rationale.  As well, this commenting VA psychiatrist indicated that review of contemporaneous medical records did not indicate symptoms of PTSD, but rather of psychosis with affective components.  He explained that PTSD did not officially exist as a diagnosis until 1980.  Thus, it would not have been diagnosed in 1969 and 1970.  In any event, he explained that, despite the fact that PTSD was not an official diagnosis during the Veteran's VA psychiatric hospitalization in 1969 and 1970, symptoms of PTSD could have been present.  According to this examiner, however, they were not.  He observed the symptoms described were not such that would meet the PTSD diagnostic criteria, had they been present.

This psychiatric examiner then goes on to discuss the records pertinent to the VA psychiatric treatment in question from November 1969 to March 1970 and reaffirmed the Veteran suffered from psychotic symptoms at that time.  On discharge in March 1970, his diagnosis continued to be of a schizophrenic nature.  According to this psychiatric examiner, considerable care was taken prior to discharging the Veteran from inpatient psychiatric treatment.  Before discharge, he was sent on a two-week leave of absence with his family to observe how well he functioned outside of the hospital.  Apparently, according to this commenting VA psychiatric examiner, the Veteran tolerated the trial period well.  He was discharged with an outpatient treatment plan involving continuation of his antipsychotic medications.  Further, it was stated that he was "probably competent."  Arrangements were made for him to follow up with outpatient care at the Dallas VA Outpatient Clinic.  As well, his family was involved in his further care.

The May 2013 VA psychiatric examiner additionally noted that, on discharge, the Veteran had appeared generally stable.  In hindsight, this VA psychiatric examiner determined there was no evidence of record indicating that risky or unwise behaviors would have been anticipated or predicted.

That VA psychiatric examiner further observed that, since the relevant VA psychiatric hospitalization, the Veteran has suffered from mental disorders on an ongoing basis until the present time.  He has had various diagnoses over the years, but the most settled one in recent times has been bipolar disorder with less of a psychotic quality.  PTSD also has been diagnosed and, more recently, the Veteran developed dementia of the Alzheimer's type.  Due to the latter, his speech and cognitive function are markedly impaired, which likely would substantially interfere with his ability to give a meaningful history of earlier events.


This VA psychiatric examiner indicated the Veteran's major psychotic disorder, whether labeled as schizophrenia, schizoaffective disorder, or bipolar disorder, appears to have stabilized for a considerable time with ongoing psychotropic medication and psychotherapy.

This commenting VA psychiatric examiner, whose professional credentials are extensive and who provided psychiatric care at VA facilities during the period in question, indicated that during the time of the Veteran's hospitalization there were marked differences of opinion regarding the prevalence of bipolar disorder (then termed manic depressive disorder) and schizophrenia.  American psychiatrists preferred the diagnosis of schizophrenia, while practitioners elsewhere, including in the United Kingdom, preferred the diagnosis of manic depressive disorder.  The Veteran's initial diagnosis in Florida was of paranoid schizophrenia.  The examiner opined that the diagnosis of schizophrenia afforded the Veteran during his Waco VAMC hospital stay was in keeping with American practice at that time.  As well, the examiner indicated that the type of treatment the Veteran received at that time, including the medication regimen, was typical of that employed in that timeframe.  The examiner recounted that, in the late 1960's and early 1970's, there was great agitation concerning prolonged mental hospitalizations so that pressures existed to shorten hospital stays and to provide treatment primarily on an outpatient basis.  Despite the prevailing atmosphere, however, the Veteran's hospital stay at the Bay Pines VAMC and subsequently at the Waco VAMC was months long.  Furthermore, when discharge was finally carried out, substantial outpatient 
follow-up treatment was planned.  It involved continuation of the Veteran's antipsychotic medications on which he had stabilized as in inpatient, providing continued outpatient care at a VA clinic, and involving the family in the further care of him.

Considering all of this, the May 2013 VA psychiatric examiner concluded the standard of care prevailing in 1970 was met at the time of the Veteran's departure from the Waco VAMC in March 1970 and that the diagnoses and treatments rendered were less likely than not the proximate or contributing cause of the later aircraft crash and hand injury.

This commenting VA psychiatric examiner indicated there has been continued evolution in the understanding, classification, and treatment of psychiatric disorders since 1970.  Considerable attention has been given to bipolar disorder, and were a patient to present today with symptoms such as those exhibited by the Veteran in 1969, a bipolar diagnosis with psychotic features would have been made and different treatment rendered.

As to the issue of predictability or foreseeability of the Veteran later engaging in risky or impulsive behavior leading to injuries from the accident, there were no distinct indications recorded during his hospital stay or discharge deliberations that symptoms suggesting or predicting such risky behavior had been noted.  According to this commenting VA psychiatric examiner, the main manifestations evidenced during the hospitalization were of a psychotic nature more typical of schizophrenia rather than of a simple manic disorder.  Although during the psychotic breakdown there had been highly agitated behavior, such behavior was not unusual for a severe schizophrenic episode, so the behavior reported in Florida prior to hospitalization did not in itself predict future bouts of manic activities, impaired judgment, or impulsive behavior provided the Veteran was adequately treated.  Since adequate treatment was provided and appropriate outpatient follow-up was instituted, it did not appear that the later behavior leading to the gyrocopter accident was reasonably foreseeable.

This commenting VA psychiatric examiner ultimately concluded that it was not likely that a breach of the standard of psychiatric care as it prevailed in 1969 and 1970 occurred during the Veteran's stay at the Waco VAMC, nor in the provisions for outpatient care thereafter, or that such a breach resulted in or was the cause of his subsequent aircraft crash and injury.  Distinct predictability was not present.


Discussion

Psychological Damage and Partial Loss of the Left Hand

At the outset, and before beginning its discussion regarding entitlement to compensation under 38 U.S.C.A. § 1151 for psychological damage and partial loss of the left hand, the Board emphasizes that it does not find probative the findings of the September 2012 VA examiner.  As stated, that examiner, a VA psychologist, indicated the Veteran had PTSD during the time of his VA hospitalization in 1969 and 1970.  He did not explain the basis for that diagnosis.  Service connection for PTSD, in particular, requires:  [1] a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (which in essence requires diagnoses of mental health disorders to conform to the criteria in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specifically claimed in-service stressor(s).  See 38 C.F.R. § 3.304(f) (2013).

The September 2012 examiner did not explain how the diagnosis met the criteria for PTSD set forth in the DSM-IV (or any prior or subsequent version of this manual) and did not outline the stressors upon which that diagnosis was predicated.  Additionally, he did not explain how the symptoms the Veteran exhibited in 1969 were indicative of PTSD.  Moreover, in contrast, the VA psychiatrist that also commented on this case explained that the Veteran's symptoms in 1969 were not those of PTSD.  According to this psychiatrist, the Veteran's symptoms at that time instead were of a psychosis, even accepting the difference of opinion at that time in America versus England as to whether they represented schizophrenia or bipolar disorder (then termed manic depressive disorder).  Both in any event are psychoses, whereas PTSD is a neurosis.

The Board therefore gives more credit and credence to the May 2013 VA psychiatric opinion, as it was based on a more comprehensive review of the record and is better supported by fully substantiated rationales.  Quite simply, the September 2012 VA psychologist's opinion, in comparison, does not have this same, much less greater, level of depth, analysis and explanation, so it is far less probative.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the competency, credibility, and consequent probative weight given to evidence, including medical evidence).  As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).

The central question in a § 1151 claim is whether there is additional disability and whether this additional disability is attributable to VA treatment, both in an actual and proximate sense, and more specifically substandard care or an event not reasonably forseeable arising out of that treatment.  Regarding the claimed psychological damage, the Board is aware that the Veteran has been given various psychiatric diagnoses over the years that include Alzheimer's-type dementia, which has been afflicting him especially in recent years, indeed, to the point that he even does not realize he has children.  The Board also is aware that there is some question as to whether bipolar disorder would have been the diagnosis rendered for similar symptoms today.  These matters obfuscate the critical issue, which is whether VA inpatient psychiatric treatment from November 1969 to March 1970 caused additional disability.  38 C.F.R. § 3.361(b).  The Board finds that it did not, primarily based on the May 2013 VA psychiatric examiner's opinion most recently obtained.

The facts surrounding the Veteran's hospitalization in November 1969 are not in dispute.  He was displaying odd behavior.  He was arrested for disorderly conduct and had made threats arousing the interest of the Secret Service.  He was committed involuntarily for a psychiatric evaluation by a judge and spent a number of days in a non-VA facility.  Subsequently, he was treated at the Bay Pines and Waco VAMCs, but he spent the bulk of his hospitalization at the Waco VAMC.

He received months of psychiatric care at the Waco VAMC, despite the emerging trend of limiting psychiatric hospital stays.  A close review of the record reveals that he was stabilized when he was released from the Waco VAMC.  Indeed, the May 2013 VA psychiatric examiner asserted that the Veteran was stable on discharge.  The Waco VAMC took great pains to ensure that he was ready and sufficiently stable to be released.  He went on a two-week leave of absence to assist in making this important determination and then returned to the Waco VAMC for assessment and reevaluation.  Before he was finally discharged, he was given a supply of all of the necessary medication, indeed, an extended amount of it, and arrangements were made for him to continue receiving treatment at the Dallas VA Outpatient Clinic, also with the full support and assistance of his family.  He was not just released back into society on a whim or even on his own accord, rather, provided the necessary support network to succeed in his aftercare.

The Board finds no competent and credible evidence of record suggesting his psychiatric disability increased in severity during his VA hospital stay or as a result or consequence of it.  Indeed, the contemporaneous evidence reflects quite the opposite, a lessening of his symptoms.  The Board recognizes his apparent assertions regarding additional disability as a result of VA hospitalization in 1969 and 1970.  He is theoretically competent to provide evidence regarding his psychiatric symptoms in March 1970, as his psychiatric symptoms were readily apparent to him.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2).  The Board, however, does not find these assertions credible.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from credibility and ultimate weight, which are factual determinations going to the probative value of the evidence).

First, the Board emphasizes that he suffers from dementia, and, as the VA psychiatric examiner highlighted, the Veteran's recollection of events that occurred well over four decades ago is resultantly compromised and very questionable.  In any event, the Board finds the contemporaneous evidence of improved, or at the very least stable, mental health more credible than a self-serving account of events almost 45 years later, long after the fact.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2007) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider such factors as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness).  The Board emphasizes, moreover, that the Veteran's current assertions regarding additional disability are inconsistent with contemporaneous professional assessments.  For these reasons the Board does not find credible his allegations of additional psychiatric disability stemming from his VA treatment at issue.

To reiterate, when he first came into VA psychiatric care in November 1969, he already was displaying distinct symptoms of paranoid schizophrenia versus bipolar disorder (manic depressive disorder).  His symptoms were in some state of remission when he arrived at the Waco VAMC later that month.  He was considered stable on discharge from the hospital several months later.  The Board deduces, therefore, that his apparently improved psychiatric state reveals there was no additional psychiatric or psychological disability, to include "psychological damage", resulting from the inpatient psychiatric care he had received at the Bay Pines and Waco VAMCs in 1969 and 1970.


The Board further finds, consistent with the competent and probative evidence contained in the May 2013 VA psychiatric examination report, that the Veteran's left hand disability does not constitute the requisite additional disability with respect to the "psychological damage" claim.  While the loss of his left hand is undoubtedly an incalculable misfortune, that injury is too attenuated from VA hospital care, which ended in March 1970, to constitute an additional disability for the "psychological damage" portion of his claim.  He was stable when released.  Thus, the Board finds that a physical injury occurring some eight months later is unrelated to the treatment received at the Waco VAMC and does not amount to the additional disability necessary for compensation under 38 U.S.C.A. § 1151 for psychological damage.

Regarding the unfortunate left hand injury, the Board finds that it too is entirely unrelated to the VA care in question.  His left hand injury occurred some eight months after he was released from the Waco VAMC in March 1970.  As stated, he was psychiatrically stable in March 1970, his psychosis in remission, and he was assessed as "probably competent."  Indeed, the May 2013 VA psychiatric examiner, a highly qualified person with subject matter expertise, surmised the Veteran was stable on release from the VAMC pursuant to a close review of the record.  He was also referred for continued treatment, albeit on an outpatient rather than inpatient basis, and his family was involved in the post-hospitalization treatment plan.  He was given a 60-day supply of medication that was presumably effective as apparent from his stabilization during hospitalization.

The Veteran maintains that he was misdiagnosed and should have been treated for bipolar disorder when he was hospitalized in 1969 and 1970.  He asserts that he had mood swings that continued after his release and that it was during one of those episodes that he engaged in the risky behavior at issue and lost part of his left hand.  The Board does not find his assertions in this regard probative.  First, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), psychotropic medications and their uses fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Thus, as a layman, he is not competent to opine regarding the type of psychotropic medication that should have been prescribed in 1969 and 1970.  Furthermore, as indicated in the May 2013 VA examination report, although bipolar disorder may have been diagnosed today, after the fact, owing to a change in view of the medical community at large, the Veteran's psychiatric disability during the relevant VA hospitalization was psychotic in nature.  And in any event, the contemporaneous medical evidence does not indicate mood swings of the type he now alleges to have experienced.  See, e.g., Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology).  The May 2013 VA examiner explained that the behavior prior to hospitalization was typical of an acute psychotic episode and not necessarily indicative of 
bipolar-type behavior.  Thus, the Board finds that the Veteran's recollection of his mental state in 1969 and 1970 is faulty, and the Board does not find credible his assertions regarding mood swings from the time of hospitalization to the date of the gyrocopter accident.  Madden, supra.  Although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  This is especially true when considering that his VA care in 1969 and 1970 was in the course of his earlier evaluation and treatment, when there was no incentive, financial or otherwise, to fabricate information for personal gain.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).


He unfortunately sustained the left hand injury after being stabilized mentally and long after his release from the VAMC.  Thus, the Board finds that whether his left hand injury occurred during a subsequent period of psychosis or mania is irrelevant because it was an incident unrelated to the care and treatment he had received from VA through March 1970.  See Jefferson v. Principi, 271 F.3d 1972, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability).  Because his left hand disability is unrelated to his treatment at the VA facility, compensation under 38 U.S.C.A. § 1151 is precluded.

This is not a situation where the evidence for and against these claims is in relative equipoise, in which case the Veteran would prevail.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.  Rather, for the reasons and bases discussed, the preponderance of the evidence is against the claims, so the benefit-of-the-doubt rule does not apply, and the claims must be denied.  Alemany, supra.


ORDER

The claim of entitlement to § 1151 compensation for psychological damage is denied.

The claim of entitlement to § 1151 compensation for partial loss of the left hand also is denied.


REMAND

Further inquiry is necessary before the Board can render a decision regarding the remaining claim of entitlement to § 1151 compensation for left leg disability.

As already explained, the first matter for consideration in analyzing a § 1151 claim is whether there is additional disability that occurred concomitant with VA treatment.

The Veteran's undated timeline of events claims he broke this leg and was in traction for six weeks or so, in June 1969, so during the months preceding that November 1969 VA hospitalization.  VA treatment records dated in January 1998 indicate he complained of left ankle pain and reported that he had suffered a compound fracture and had developed an infection, post-injury.  He said he eventually healed without intercurrent signs and symptoms of infection, but that his course was complicated by weight-bearing and the inability to use prescribed crutches while the fracture was healing during incarceration in a VA psychiatric hospital.  He reported that his fracture eventually healed, albeit with some deformity.  The evaluating physician concluded the Veteran probably had post-traumatic arthritis, probably accounted for by injury of the ankle at the time of the original tibia fracture, and aggravated by the varus alignment that he had over the years as well as the loss of subtalar joint motion, which was also post-traumatic.

VA treatment records from during the Veteran's VA psychiatric hospitalization from November 1969 to March 1970 indicate he had presented for admission without any assistive devices, but with a left-leg deformity related to a then recent fracture.  It also was noted that he consequently walked with a limp.  During the course of this appeal, he has continued receiving VA treatment, including joint replacement surgery for his left ankle complaints.  

After examination in September 2012, a VA examiner concluded the Veteran's left leg deformity was not congenital.  Subsequently, in May 2013, a VA examiner opined regarding whether there was negligence, error, and the like in VA's treatment of the Veteran's left leg while hospitalized at VA facilities from the fall of 1969 to the spring of 1970.  The opinion refers to additional disability, which is a prerequisite to compensation under 38 U.S.C.A. § 1151.  However, the examiner did not clarify whether the additional disability occurred during or in relation to VA treatment.


As indicated, the Veteran sustained a left leg fracture at some point before he was hospitalized at the Bay Pines VAMC and later at the Waco VAMC in November 1969.  On admission for VA hospital treatment, it was noted there was a deformity in the lower leg due to a fracture six months earlier.  The deformity led at least one examiner to note that the Veteran had been weight bearing for "some time."  When the May 2013 VA examiner indicated additional disability, it is unclear whether he meant the Veteran had additional disability of the left lower extremity due to VA hospital treatment in 1969 and 1970 or, instead, because of the preceding injury.  The question is whether there was a disability additional to the state in which he presented on admission for VA treatment.  So supplemental comment addressing this is needed.

Accordingly, this claim is REMANDED for the following additional development and consideration:

1.  Have the May 2013 VA examiner provide supplemental commenting concerning whether the Veteran has additional disability of his left leg as a result or consequence of his VA psychiatric hospitalization from November 1969 to March 1970, specifically considering the clinical evidence of left leg deformity on admission and the X-ray of this leg during that hospitalization.  So the examiner needs to compare the state of the Veteran's left leg on admission for VA treatment in November 1969 versus the state of his left leg on discharge from the Waco VAMC in March 1970.

If it is determined there is indeed additional disability of this leg, what is the likelihood (very likely, as likely as not, or unlikely) the proximate cause of this additional left leg disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing psychiatric care during that hospitalization, or that the proximate cause of this additional disability was an event that was not reasonably foreseeable (versus foreseeable)?

While the evidence of record indicates the Veteran was judged incompetent and resultantly involuntarily committed to the VA hospital in November 1969 under court order, the Board ultimately will have the responsibility of determining whether his allegations concerning that VA psychiatric hospitalization from November 1969 to March 1970 are competent and credible, so as to in turn have probative value.  Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

It therefore is essential the examiner discuss the underlying rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions.

If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 

To facilitate providing responses to the questions posed, the claims file must be made available to the examiner for consideration of the pertinent history.

If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment (addendum or supplemental opinion), then have someone else provide it who has the necessary qualifications.  In this eventuality, the Veteran may need to be reexamined, but this is left to the designee's discretion.

2.  Then readjudicate this remaining claim in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs