Citation Nr: 18152829 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-38 936 DATE: November 27, 2018 ORDER Compensation under 38 U.S.C. § 1151 for aggravation of a preexisting anxiety disorder is granted, subject to the regulations governing the award of monetary benefits. Service connection for a psychiatric disability to include anxiety disorder and posttraumatic stress disorder (PTSD) is dismissed. FINDING OF FACT The Veteran has additional disability due to aggravation of a preexisting anxiety disorder due to an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in favor of the Veteran, the criteria for compensation under 38 U.S.C. § 1151 for aggravation of a preexisting anxiety disorder have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. 2. The appeal of the claim for service connection for a psychiatric disability has been mooted by the grant of compensation under 38 U.S.C. § 1151 for aggravation of a preexisting anxiety disorder. There remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104 (a), 7105(d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Compensation under 38 U.S.C. § 1151 for aggravation of a preexisting anxiety disorder Where a Veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. 38 U.S.C. § 1151 (2012). In order for the disability or death to qualify for compensation under 38 U.S.C. § 1151, the disability or death must not have been the result of the Veteran’s willful misconduct, and must have been caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the VA hospital care, medical or surgical treatment, or examination that proximately caused the disability or death, must have been careless, negligent, lacked proper skill, or involved an error in judgment, or an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a). The additional disability or death must also not merely be coincidental with the VA hospitalization, medical, or surgical treatment. Finally, proof of aggravation, in the absence of evidence satisfying the causation requirement, will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.361(c)(1)(2) (2018). In determining whether additional disability exists, the Veteran’s physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with his physical condition subsequent thereto. With regard to medical or surgical treatment, the Veteran’s physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.361(b)(1)-(2) (2018). VA medical records show that the events in question occurred at the Marion VA Medical Center in June 2011. A June 15th record shows that the Veteran wanted to restart medication for his psychiatric disability, diagnosed at that time as anxiety disorder, rule out PTSD, and depressive disorder. A June 21st record shows that the Veteran complained of sweatiness and agitation since starting citalopram. A June 22nd addendum shows that the addition of sertraline was being considered. A June 24th record shows that the Veteran reported increased anxiety since restarting medication and the plan was to discontinue sertraline. A July 8th record notes that the Veteran recently sought treatment at an emergency room due to severe anxiety with heart palpitations. Diagnoses at that time included anxiety disorder due to a medication problem, rule out onset of panic disorder, and depressive disorder. In a June 2012 VA examination report, the examiner stated that there is no evidence to suggest that VA medical center providers exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in prescribing sertraline to the Veteran. The examiner noted that sertraline is an FDA-approved antidepressant that was appropriate for the Veteran’s symptoms and similar to his previously prescribed medications to which he had no such side effects. The examiner concluded that the Veteran’s reaction to sertraline was not reasonably foreseeable. In a later June 2012 VA examination report, a different examiner stated that the unfortunate event the Veteran suffered was not reasonably foreseeable. Citing to the medical literature, the examiner noted that such side effects are rare and that she has never seen such a case in her 20 years of practice. The examiner then concluded that the Veteran’s experience with the unfortunate side effects further exacerbated his premorbid underlying anxiety and led to the need for more intensive ongoing outpatient therapy. In a February 2013 VA examination report, the examiner noted that the medical records clearly show that the Veteran’s panic symptoms began following a dose of sertraline in 2011. In a June 2016 VA examination report, the examiner indicated that there was a short term increase in the Veteran’s anxiety and somatic pain disorder after the VA treatment with sertraline but no aggravation beyond normal progression of either. The examiner noted that the question of whether the additional disability resulted from an event that could not have been reasonably foreseeable by a healthcare provider was beyond her area of expertise. Given the above, while the June 2016 VA examiner indicated that there was no permanent increase in the Veteran’s psychiatric disability, the other evidence of record indicates that there was. VA medical records show an increase in anxiety and indicate the onset of a panic disorder. The June 2012 examiner indicated that the Veteran’s preexisting anxiety disorder had been aggravated by his experience with the medication side effects. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that he has additional disability due to aggravation of a preexisting anxiety disorder. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The remaining question is whether that additional disability was caused by VA medical treatment. Every VA examiner who provided an opinion on the matter concluded that the Veteran’s reaction to sertraline was not reasonably foreseeable. While the first June 2012 examiner opined that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of VA in prescribing sertraline to the Veteran, the examiner also opined that the Veteran’s reaction to sertraline was not reasonably foreseeable. In this case, that there was no error on the part of VA further supports the conclusion that the event was not reasonably foreseeable. Thus, the Board finds that the additional disability was due to an event that was not reasonably foreseeable. In conclusion, resolving the benefit of the doubt in favor of the Veteran, the Board finds that he has additional disability due to aggravation of a preexisting anxiety disorder due to an event that was not reasonably foreseeable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Accordingly, compensation under 38 U.S.C. § 1151 for aggravation of a preexisting anxiety disorder is warranted. 2. Service connection for a psychiatric disability The appeal of the claim for service connection for a psychiatric disability to has been mooted by the above grant of compensation under 38 U.S.C. § 1151. That grant has essentially resulted in the grant of service connection for a psychiatric disability. Accordingly, there remains no matter in controversy for which the Board has jurisdiction, and the appeal must be dismissed for lack of jurisdiction. 38 U.S.C. §§ 7104(a), 7105(d)(5) (2012). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel