Citation Nr: 18148227 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-03 876A DATE: November 7, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for dysphagia is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for vocal cord paralysis is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for achalasia is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include chronic adjustment disorder, to include as secondary to dysphagia, vocal cord paralysis, and/or achalasia. REASONS FOR REMAND The Veteran had active service from August 1951 to December 1972. In a January 2016 VA opinion on the 38 U.S.C. § 1151 claims is inadequate and a new opinion is needed. The January 2016 examiner said the Veteran had additional disability due to or worsened by treatment at the Biloxi VA Medical Center in November 2011. The examiner further noted that the disability was not the result of carelessness or negligence and did not result from an event that could reasonably been foreseen by the healthcare provider. However, the examiner then commented that it was not known at the time that the Veteran already had a neuromuscular disease that was responsible for his symptoms (that is, the additional disabilities claimed). The examiner noted that the neuromuscular disease was only found some time later after the event in November 2011. The January 2016 opinion did not address the significance, if any, of the fact that the Veteran had a neuromuscular disease at the time of the November 2011 treatment in question. For example, what is the effect of the diagnosis not being known at that time and would the treatment provided in November 2011 have been appropriate had the neuromuscular disease been known at the time. A veteran may be entitled to benefits under 38 U.S.C. § 1151 if VA failed to timely diagnose or properly treat a disability, thereby causing increased disability or death. To prove a claim under 38 U.S.C. § 1151 for failure to diagnose the evidence must show: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Roberson v. Shinseki, 607 F.3d 809 (2010). The opinion obtained on remand should consider the following: a June 2012 examination which noted complaints of muscle thigh pain and restless leg syndrome, and; August 2005, and February and August 2006 records noting aching and hurting in the legs, problems with gait, disturbance, hoarseness, nocturia and dysphagia. In August 2012 the Veteran was afforded a VA examination regarding the claim of service connection for an acquired psychiatric disorder after which the examiner offered a negative nexus opinion. The rationale provided was that there was no diagnosis of a mental disorder in the Veteran’s service medical records. The examiner rendered the opinion that the Veteran’s adjustment disorder was at least as likely as not caused by or a result of severe dysphagia, aphonia, gastrostomy tube placement due to treatment at VA. That opinion is inadequate as it relies solely upon a lack of diagnosis in service. As such, another VA medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The service connection claim is also inextricably intertwined with the other claims being remanded; adjudication of that claim must be deferred until the claims for compensation under 38 U.S.C. § 1151 for dysphagia, vocal cord paralysis, and achalasia have been readjudicated. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. The AOJ must contact the VA opinion provider who provided the January 2016 opinion in connection with the Veteran’s claims for compensation under 38 U.S.C. § 1151 for dysphagia, vocal cord paralysis, and achalasia and request an addendum opinion. The claims file should be made available to and reviewed by the opinion provider. If the January 2016 provider is unavailable, the opinion should be obtained from another appropriate provider, preferably a neurologist. Based on the examination and review of the record, the opinion provider should address the following: (a) Is it at least as likely as not that a neuromuscular disease should have been diagnosed prior to November 2011? If so, was the failure to diagnose the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel? In answering this question, the opinion provider should consider and discuss as necessary the June 2012 examination which noted complaints of muscle thigh pain and restless leg syndrome, and; August 2005, and February and August 2006 records noting aching and hurting in the legs, problems with gait, disturbance, hoarseness, nocturia and dysphagia. (b) If the diagnosis should have been known prior to November 2011, is it at least as likely as not that the failure to diagnose and/or treat that condition aggravated the Veteran’s dysphagia, vocal cord paralysis, and/or achalasia? (c) If a relationship between any of the currently diagnosed disorders and VA treatment (to include misdiagnosis/failure to treat) is shown, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disabilities and/or additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. In other words, did VA providers fail to exercise the degree of care that would be expected of a reasonable health care provider, either through action or inaction? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered, the examiner must indicate why that is. 2. Contact the provider who completed the August 2012 opinion in connection with the Veteran’s claim for service connection for an acquired psychiatric disorder, for an addendum opinion. The claims file should be made available to and reviewed by the opinion provider. If the August 2012 provider is unavailable, the opinion should be obtained from another appropriate provider. Based on a review of the complete record, the provider should answer the following: Is it at least as likely as not that any currently diagnosed psychiatric disability was incurred in service (a lack of diagnosis in service is not dispositive) or is caused or aggravated (defined as any increase in disability) by the dysphagia, vocal cord paralysis, and/or achalasia. A fully articulate medical rationale for the opinion must be set forth in the medical report. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel