Citation Nr: 1807658	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-15 518	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to compensation under the provision of 38 U.S.C. § 1151 for additional psychiatric disability, to include depression, based on VA's alleged failure to refill prescribed medications and failure to properly maintain his CPAP machine.

REPRESENTATION

Veteran represented by:	James M. McElfresh, II, agent


ATTORNEY FOR THE BOARD

M.H. Stubbs, Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from July to August 1971.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

History

The Veteran has been seeking VA benefits for his mental health disorder(s) since 2003.  He was initially denied service connection for an acquired psychiatric disorder, to include depression, mental illness, and attention deficit hyperactivity disorder (ADHD) in a February 2004 rating decision.  A December 2005 Board decision denied entitlement to service connection for an acquired psychiatric disorder.  The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC).  A Joint Motion for Remand (JMR) vacated the Board's December 2005 decision and remanded for additional development.  The Board remanded the claim in July 2007.  Meanwhile, a February 2006 rating decision denied entitlement to service connection for posttraumatic stress disorder (PTSD).  The Veteran appealed this denial to the Board, as well.  

In March 2009, the Board denied the Veteran's claims for service connection for an acquired psychiatric disorder and PTSD.  The Board found that the Veteran's psychiatric disorder(s) clearly and unmistakably existed prior to entry into service were not aggravated by service.  Additionally, the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD.  The Veteran appealed the issue of entitlement to service connection for an acquired psychiatric disorder, to include depression, to CAVC.  In January 2011, CAVC affirmed the Board's denial of entitlement to service connection for an acquired psychiatric disorder.

While his CAVC appeal was pending, the Veteran filed a claim for service connection for chronic adjustment disorder with low stress tolerance in May 2009.  This claim was denied in a December 2009 rating decision.  

In June 2011, the Veteran filed a claim of entitlement to 38 U.S.C. § 1151 benefits for depression based on VA's alleged failure to diagnose or properly treat a several health conditions (depression, hypertension, high cholesterol, and sleep apnea), allowing for continuance or natural progression of the disease or injury.  He additionally filed a claim of clear and unmistakable error (CUE) in the initial denial of his psychiatric claims, and a claim to reopen a claim of entitlement to service connection for an acquired psychiatric disorder.  

In the June 2013 rating decision on appeal, the claims to reopen, for section 1151 benefits for increased depression, and for CUE regarding his prior denials for service connection for a psychiatric disorder were denied.  The Veteran appealed these denials to the Board.  

In February 2016, a Board decision denied the Veteran's claim to reopen.  The Board decision also noted that the February 2004 AOJ (Agency of Original Jurisdiction) rating decision and the March 2009 Board decision could not be challenged on the basis of CUE because CAVC had affirmed the March 2009 Board decision (denial) in 2011.  The Board remanded the Veteran's 38 U.S.C. § 1151 claim for the Veteran to provide specifics details on the alleged inadequate VA treatment, and for him to be provided a section 1151 examination and opinion.  These remand directives have been accomplished.

Veteran representing himself

Generally, when a veteran choses to represent himself before the Board, it is considered "pro se" and a representative's name is not listed on the title page.  In this instance, the Veteran is an accredited agent.  He has passed a certification examination and represents other veterans before the Board.  As he is an accredited agent, and he has provided statements on his business letterhead, the Board has added his name as the representative on the title page.

Credibility of Veteran

The March 2009 Board decision which denied entitlement to service connection for a psychiatric disorder touched on the inconsistencies in the record and the "question of credibility," but did not go so far as to outline all of the inconsistencies and declare the Veteran's statements regarding the onset and symptoms of his psychiatric disorder to be not credible.  This Board decision will address the lack of credibility in a number of the Veteran's communications with VA in his attempts to obtain benefits.

The Board notes that in May 2017, the AOJ granted entitlement to service connection for tinnitus.  At the time of this grant, the evidence before the AOJ included a May 2017 hearing evaluation where the Veteran reported that he was punished in service by being forced to stand next to jet engines for two hours without hearing protection, and that his tinnitus began at this time.  Based on this assertion, the examiner provided a positive medical opinion.  Significantly, after the May 2017 examination the Veteran provided private treatment records that had not previously been available to VA providers.  This included that in April 2014, the Veteran denied the presence of tinnitus to his private care provider Dr. R.S.  After being service connected for tinnitus, the Veteran has attempted to claim secondary service connection for migraines and an increase in his psychiatric disorders.  During a September 2017 fee-basis VA examination (DBQ) for his migraine claim, the Veteran reported that he suffered head injuries in service when his Sergeant pulled his mattress out from under him and he fell and hit his head on concrete.  He reported that this happened several times, and that he developed headaches and tinnitus after striking his head.  Notably, throughout his prior medical records the Veteran either denied head injuries or singularly reported being struck in the head with a bat at age 12.  Essentially, the Veteran was granted service connection for tinnitus based on his report of something that happened in service and his report that he had continued tinnitus from service until the 2017 examination.  However, evidence received since the May 2017 examination contradicts the Veteran's report of symptom onset.

January 2018 Substantive appeals

In January 2018, the Veteran submitted timely appeals related to his claims for service connection for a right big toe disability, left big toe disability, bilateral hammertoes, and migraines.  These issues have not yet been certified to the Board.  Along with certification to the Board, an appellant would be provided notice that he or she has 90 days to submit additional evidence, request a personal hearing, or change representation.  As the claims have not been certified to the Board and the Veteran has not been provided with the 90 days to submit additional evidence or request a hearing or representation change, the Board finds that these issues are not ripe for appellate review in this decision.  


FINDINGS OF FACT

1.  The Veteran has had several psychiatric diagnoses over the years, and is currently treated for major depressive disorder/depression.  He has also been diagnosed with an anxiety disorder.  The earliest medical record of a diagnosed acquired psychiatric disorder is from 1990, but there is evidence of psychiatric symptoms beginning in childhood.

2.  During the period that VA treated the Veteran from 2004 to 2012, he was properly diagnosed and treated, to include being properly prescribed medications, and being provided with CPAP machines and appropriate maintenance.

3.  The credible and probative medical and lay evidence of record shows that the Veteran's psychiatric disorders, including depression, existed prior to VA care, and did not undergo an increase in disability, nor did the Veteran incur an additional disability, as a result of VA medical care.

4.  The credible and probative medical evidence of record shows that VA did not proximately cause the continuation or natural progression of the Veteran's depression due to inadequate care.  VA provided adequate care for the Veteran's depression, hypertension, high cholesterol, and obstructive sleep apnea (OSA) when the Veteran was treated by VA.

5.  The credible and probative evidence of record shows that the Veteran stopped using VA medical care and transferred his care to a private physician in 2012 because it was more convenient to receive private treatment in his rural town than to travel to a VA facility.


CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C. § 1151 for increased depression are not met.  38 U.S.C. §§ 1151, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.361 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to veterans.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  

Here, the Board could not find notification that provided the Veteran with information regarding the element required to establish a claim for benefits under 38 U.S.C. § 1151.  Unusual to this case, however, the Veteran is an accredited agent representing himself.  He has passed a certification test to become an agent, and is familiar with VA laws and regulations.  In fact, during this appeal process, the Veteran has cited 38 U.S.C. § 1151, 38 C.F.R. § 3.361, VA case law, and has provided copies of research related to how VHA treats mental health disorders.  As such, although proper notice does not appear to have been provided, the Veteran had actual knowledge of the evidence required to substantiate his claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.)

Regarding the duties to assist, the Veteran's service treatment records, VA treatment records, lay statements, and Social Security Administration (SSA) records are contained in the claims file.  The Veteran was afforded VA examinations/interviews pertinent to his 38 U.S.C. § 1151 claim in May 2016 (psychiatric and general medical).  Additionally, examinations provided in 2008, 2017, and 2018 provided details regarding the Veteran's psychiatric symptoms and OSA, and his credibility, that are pertinent to the section 1151 claim on appeal.   

In July 2016, the Veteran argued that the May 2016 examinations were inadequate because the examiner failed to consider lay statements from the Veteran's wife during the examination.  The Board finds that this is not true, as the May 2016 examinations both included a lengthy history with notations of the wife's statements, including "wife reported that in the past when the Veteran would quit taking his medications for depression he would be irritable, angry, and isolative."  Additionally, the 2016 and 2018 evaluations included interviews conducted with the Veteran and his wife, which are described in the evaluation reports.  The May 2016 medical examiner based his opinion that the Veteran stopped VA treatment due to the distance and inconvenience of VA care on the statements provided by the Veteran and his wife, because there is no medical record which would have provided the details related to the Veteran's decision to transfer care to a private provider.  As such, the Board finds that the examinations were adequate in addressing the Veteran's contentions regarding his section 1151 claim, to include review of the record, citations to lay statements, and elicited a history of his 2012 treatment change from the Veteran and his wife.  VA and private psychiatric evaluations throughout the Veteran's claims file (which currently contains more than 1000 documents) were also reviewed as his claim for section 1151 benefits revolves around his depression increasing or following its natural progression as a result of improper VA treatment.  The Board finds that there is sufficient evidence upon which to decide the Veteran's section 1151 claim.  As will be addressed below, the Board also finds the Veteran to not be credible in his statements and dealings with VA in attempts to obtain disability benefits.

Laws and Regulations

In this case, the Veteran alleges that VA's failure to timely diagnose and properly treat his depression, hypertension, high cholesterol, and obstructive sleep apnea (OSA) resulted in increased depression or caused the continuance or natural progression of his depression.  He is seeking entitlement to 38 U.S.C. § 1151 benefits for depression.

Compensation under section 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected.  38 U.S.C. § 1151; 38 C.F.R. § 3.358 (a).  In essence, there are three elements required to establish benefits under 38 U.S.C. § 1151: there must be (1) additional disability; (2) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (3) a finding of fault or a finding of an unforeseen circumstance.  Each element is a prerequisite for the subsequent element.  38 U.S.C. § 1151; 38 C.F.R. § 3.361.

In Viegas v. Shinseki, the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation.  First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct."  38 U.S.C. § 1151 (a).  Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the Veteran" by VA or in a VA facility.  Finally, the "proximate cause" of the Veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable."  See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C.A. § 1151(a)(1)(A), (a)(1)(B).  Thus, section 1151 contains two causation elements-a Veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event.

In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after care or treatment is rendered.  38 C.F.R. § 3.361 (b). 

To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability.  Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish causation.  38 C.F.R. § 3.361 (c)(1). 

Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of injury for which the care or treatment 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 a number of statements, the Veteran has indicated that he is entitled to section 1151 benefits because of VA's failure to properly treat his depression and OSA through failure to provide prescribed psychiatric medications and failure to maintain his CPAP machine.

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent.  Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  

The Board finds that the Veteran does not have any additional psychiatric disability that is a result of medical care furnished (or not furnished) by the VA from 2004 to 2012.  See 38 C.F.R. § 3.361.  The Board additionally finds that VA did not fail to timely diagnose and properly treat the Veteran's depression, hypertension, high cholesterol, or sleep apnea.  See 38 C.F.R. § 3.361(c)(2).  As such, VA's care could not cause the continuance or natural progression of his depression because VA's treatment was adequate and timely.


Factual Background and Analysis

While the Veteran's claim for section 1151 benefits was initially filed in 2011, he has argued that he had increased depression as a result of VA's failure to properly diagnose and treat his depression and OSA (and hypertension and high cholesterol) beginning in 2012.  He stated that in 2012, VA failed to provide his prescribed psychiatric medications and failed to maintain his CPAP machine.  His treatment with VA began in 2004, and so the Board will address his ongoing psychiatric health and treatment.  The Veteran's claims file is very large.  The Board has reviewed his record in-depth and will provide a number of pertinent records to show that the Veteran's psychiatric health did not noticeably change during VA treatment, and specifically did not increase in 2012.  Additionally, VA's care was timely and proper, and the causation element of a section 1151 claim is not supported by the record.  The factual background will also include records which relate to the Board's credibility analysis.

In service treatment and personnel records noted that the Veteran was administratively separated from the U.S. Air Force due to an "emotionally unstable personality manifested by drug dependency, flashbacks, acting out, violent behavior, low stress tolerance, and a history of poor adjustment."  The Veteran has refuted that he ever used drugs in service.  A July 19, 1971 record from his 9th day of training noted that the Veteran was counseled regarding leaving his guard duty post.  The training officer noted that it seemed obvious on interview that the Veteran was "very depressed" and "extremely upset as a result of poor family relations.  These may be serious enough to have an effect on the commander's decision on what action to take in regard to [the Veteran's] attempted AWOL."  A July 20, 1971 record noted that the Veteran had poor family relationships that were the greater part of his basic problem.  He was also "very weak in logical thinking and slightly immature."  The training officer did not recommend punishment, as he stated the Veteran did not "intend to break the rules through negligence as much as he intended to prove a point to his father."  On July 21, 1971 the Veteran was counseled by his commander regarding his unsatisfactory performance and leaving his guard post.  The commander noted the Veteran was "very immature and was trying to prove a point, not to the military, but to his father."  He wanted out of the service and stated he would do anything to obtain his discharge.  "His attitude toward the service is based on his experience with his father, a retired Major, who forced him to enter the service."  The commander assigned the Veteran to the motivation unit.  The next day, July 22, 1971, the Veteran departed his place of duty while awaiting transportation to the Motivation Unit (went AWOL).  He was picked up by Security Police at the airport.  The Veteran refused the offered Article 15, and instead on July 27, 1971, he was given a Special Court-Martial for his three instances of being absent from duty without authority (July 19, 21, and 22 to 23), and was found guilty.  He was sentenced to confinement at hard labor for 14 days.  His time lost from service was therefore his AWOL on July 22nd, and his confinement from July 26 to August 19th, for a total of 26 days out of his 50 days of service.

Regarding his discharge from service, his commander noted that the Veteran was "immature and definitely lacking in proper parental guidance.  This has made his attempt at adapting to military life even more difficult.  Due to his failure to show any progress in training or adapt within in a reasonable period of time" it was recommended he be discharged.  The recommendation for discharge listed the reason as "inadaptability to military life, immaturity and poor performance" as well as "emotionally unstable personality."  In February 1975, the Veteran sought permission to reenlist and "make a career out of one branch of the service."  He stated that he was "too young and immature" when he first joined the service and it had been his first time away from home and he did not adjust well.  He also "listened to the wrong people" and was "easily influenced by a group of dissatisfied airmen."  His application was denied based on his prior service history and discharge.

A November 1990 psychological examination revealed that the Veteran had been depressed for "as long as [he] could remember," specifically citing his abusive treatment in Catholic schools and physical abuse at the hands of his alcoholic father.  Under the section of "Initial Formulation and Diagnostic Impression" it was reported that the Veteran described being in a depressed mood more often than not as a child and an adolescent.  He often had insomnia, low energy, low self-esteem, and feelings of hopelessness.  His diagnosis was dysthymia.

A January 1997 psychological evaluation by psychologist G.D., referred by Vocational Rehabilitation, included a history of the Veteran's difficult childhood, and his difficulty keeping jobs.  He was noted to have a below average IQ on testing.  Psychological scores indicated depression and schizophrenia, as well as elevated scales for Social Introversion, Psychasthenia, and Paranoia.  "These individuals are often dependent and require much support.  At the same time they generally resent those who provide support because of the recognition of their dependency.  Their ineffectiveness and attempts to deny unacceptable impulse sometimes produce severe conflict which may lead to dissociative periods of acting-out."  The psychologist diagnosed borderline intellectual functioning and schizotypal personality disorder.  His prognosis was "generally poor" as his condition was considered chronic.  He was noted to come from a dysfunctional home where discipline was harsh.  He was poor student with poor scholastic achievement.  He had a limited ability to learn, and had "personality problems that keep him from functioning effectively in work situations."  A high school transcript from May 1967 indicated the Veteran graduated "unsatisfactorily."  The Veteran was noted to be "emotionally upset" and the family was asked to "put him under the care of a psychiatrist."  It appears the family did send him as of May 1967.  The principal noted that he or she "graduated him only because [he/she] felt he [cannot] face another failure."

The Veteran was granted SSDI from November 6, 2000, due to generalized anxiety disorder and major depression.  Records from 2003 included that the Veteran had odd behaviors, failure to manage simple shopping, handle a check book, and he was rude and overly critical.  He had difficulties with sequencing and organization, perceptual motor difficulties, and was easily overwhelmed by complexity.  He had low self-esteem, and was anxious and depressed.  He had nightmares and was "considered suicidal."  Cited records from Parowan medical Clinic noted the Veteran reported hearing voices in May 2003.  Dr. B.T. had provided care from 2000 to 2003 and stated the Veteran was forgetful regarding his appointments.  He had a fair amount of depression and a lot of anxiety.  He was "explosively angry" very easily and was "in competition with his children."  He did not follow through with counseling, and used his therapist for major crises, which he had once or twice per year.  "Usually just a step away from assaulting someone when he comes in."  Dr. B.T. noted the Veteran was always anxious and uptight, and was so big and powerful he would be dangerous.  Dr. B.T. also noted that the Veteran "related some delusions, but if questioned he knew reality."  He related to people poorly and had paranoia.  He had recently been referred to a psychiatrist for additional medication.

An evaluation from Dr. B.T. provided in his SSA records noted that the Veteran had a difficult childhood, with both problems with an alcoholic father, and difficulties with school via nuns who would embarrass and physically hurt the Veteran.  He reported he liked public high school better and was "able to graduate."  He reported joining the Air Force after high school where he "got in with the wrong crowd and went AWOL."  He reported an incident of being hit in the head with a baseball bat at age 12 where he was knocked unconscious.  He reported periodic depressions, with his first one starting at about age 15.  He was administered several tests for intellectual functioning and psychological functioning.  He was noted to have some learning disability in the mathematics area, but otherwise adequate functioning.  He was diagnosed with Depressive disorder, NOS and rule out bipolar disorder, and ADHD.  

A June 2003 record from Dr. B.T. noted that the Veteran was doing "much better."  When he was first treated, the Veteran suffered from hallucinations and paranoia, and was "getting rather dangerous."  He had since changed medications and was doing better.  "However, he does not like people very well and has great difficulty in controlling his temper and his impulses."  It was recommended that he continue counseling, but noted that the Veteran had a history of managing crises and would not continue counseling for prevention.  

In September 2003, he was seen by Southern Utah Behavioral Health where he reported he had problems with his training instructor in service where he felt embarrassed and so he went AWOL.  He was able to get an honorable discharge "through his father's efforts" because his father was a retired U.S. Air Force major.  He described his "current concern" as feeling as though he was on the "brink of insanity."  He reported "small things set [him] off", he had premonitions of doom, and he felt as though he was a failure.  He stated he heard voices and contemplated suicide.  He had nightmares and "visions."  He was selfish, and had felt that his life was meaningless, without satisfaction or fulfillment.  He had anger management problems, and felt worthless.  He avoided people, new situations, and had an easy startle response.  When reviewing avoidant personality disorder he stated "that's me."  Regarding traumatic events, he reported he was sexually molested in a movie theater at age 12, and hit on the head with a bat at a football game at age 12, but that he had no significant sequelae from either.  The Board notes that in describing his pre-service and in-service history he described his training instructor's treatment towards him regarding embarrassing him, and being hit with a bat at age 12, but did not report that he was forced to stand near a jet engine, "beaten" by cellmates, or that he was pushed off of a top bunk multiple times in service, injuring his head.

In October 2003, the Veteran provided a statement to VA that because of his "humiliation" in service he had "constant nightmares" and sometimes "hears voices."  He stated that his mental difficulties were exacerbated by service, and the they had been "all downhill" since his discharge.  The Veteran did not describe any physical assaults, being pushed off a top bunk, or being forced to stand near jet engines.  He omitted his difficulties with school and his psychiatric treatment prior to service.

In May 2004, the Veteran first sought VA care, and stated he continued to have suicidal ideation and in the prior month had put a gun up to his mouth.  He stated he had no current suicidal or homicidal ideation but felt mildly depressed at times and he wanted to establish mental health treatment with VA.  He stated he was being treated by a private mental health provider and was on Prozac, which helped.  A June 2004 VA record noted that the Veteran was being treated with Prozac, via the St. George Veteran's clinic, for major depression.  He had symptoms of suicidal ideation, low mood, hopelessness, low appetite, loss of energy, loss of motivation and "OCD" symptoms.  He stated he started hearing voices at age 20.  He had nightmares about people in black robes taking him to hell.  His wife reported he continued to be easily agitated and unable to calm himself down.  His ADHD symptoms included difficulty following through, although he was not on medication for this.  Regarding his military service, the Veteran again related that he did not like that his training officer yelled at him and threw his canteen in front of a large number of other servicemen.  The Veteran denied any developmental issues growing up and said that he did "okay" in school.  This is different from his shown history.  He reported difficulty keeping jobs, and his wife stated he was a pathological liar, and would not tell her when he lost a job.  He had impulse and concentration problems regarding prior jobs.  He was diagnosed with depression with psychotic features and assigned a GAF of 35.  He was noted to have problems with interpersonal relationships related to his lying.  His Prozac was increased and he was started on Wellbutrin.

A June 2004 VA telepsychiatry medication management record noted the Veteran was diagnosed with depression with psychotic features, rule out ADD, and a dependent personality.  He had problems with unemployability, and interpersonal relationships related to his lying.  He reported that he continued to have ongoing problems with concentration, emotional outbursts, depressed mood and anxiety.  His medications were changed from Prozac to Celexa for irritability and improved sleep.  He was also on Wellbutrin for depression, which was increased.  

A VA record from an unknown date included the Veteran's statement that he was significantly suicidal due to his disability claim being stagnant.  He stated he had discontinued all other medications and that his bottle of Wellbutrin was sent in November 2005, although the Veteran reported he had been taking it consistently and as prescribed.  He denied perceptual distortions and other indications of psychosis.  He stated he had been "unable to maintain contact with the LCSW or medication appointment due to his lack of transportation.  Willing to continue with Wellbutrin."  This is the first indication that the Veteran was not continuing with his psychiatric care.  The record indicates that the Veteran had not made appointments to see a social worker or continue his medication due to a "lack of transportation."

In July 2004, the Veteran provided a statement that it was through is father's "valiant efforts that [he] received an Honorable Discharge from the U.S.A.F., as he met with [the Veteran's] supervisors at Lackland A.F.B."  He stated that school and learning were difficult for him, and his teacher's would embarrass him for his difficulties.  He reported that in 8th grade one of his teachers suggested to his parents that he needed psychiatric help, and he was treated by a psychiatrist at the University of Plano.  He stated the nuns at his Catholic schools were abusive towards him, and he felt unable to tell his parents about the cruelty he suffered.  In service, he felt that the constant yelling from his training officer was "mental abuse" and reminded him of his childhood tormentors.  He felt that no matter how hard he tried he was not good enough.  He stated he started hearing voices.  He also felt it was abusive he was embarrassed by his training officer regarding his canteen not being held in the proper way.  He stated that at the time of the letter, he was "medicated, depressed, suicidal" and he felt the future looked "dismal."  Again, the Veteran described being yelled at and his canteen being thrown in front of others being the sources of his discontent with service.  He felt "abused" and "humiliated," and these instances were repeated throughout his early requests for service connection.  He did not mention being forced to stand near jet engines, being physically assaulted in the brig, or being pulled off of a top bunk and injuring his head multiple times as he later reports.

A VA treatment record from April 2005 noted that the Veteran had a diagnosis of major depressive disorder manifested by markedly diminished interest and pleasure in almost all activities, significant weight gain, insomnia, feelings of worthlessness, excessive guilt, diminished ability to think or concentrate, indecisiveness, recurrent thoughts of death, recurrent suicidal ideation without a specific plan, lack of reactivity to usually pleasurable stimuli, clinically significant distress, and impairment in social and occupational functioning.  

In July 2005, a VA physician noted that there was a questionable diagnosis of obstructive sleep apnea and a sleep study was ordered.  The note included that the Veteran wanted to be tested for OSA as he reported he was "snoring more and more."  An August 2005 letter in VA treatment records noted that he had a positive sleep study for sleep apnea.  He was scheduled for a follow-up in three weeks, which would include a CPAP trial.  A September 2005 three-night sleep study at home through Sleep Solutions was ordered and he was invited to a class on OSA and in-house titration of CPAP with oxygen.  An October 2005 social worker note included that he was recently diagnosed with OSA, but he had not rescheduled his appointment for further testing at this time.  A February 2006 social worker record again noted he had not rescheduled his appointment for further OSA testing, and included that the social worker had encouraged him to schedule his appointment and provided the phone number.  A June 2006 record noted that he was diagnosed with OSA via a sleep study in September 2005, but that he had cancelled the rest of the sleep study to titrate CPAP, but was now willing to do it.  His follow-up sleep study was scheduled for July 2006, however, it was cancelled and he would be contacted by a local sleep lab for the additional testing.  

In March 2006, the Veteran provided a statement regarding his current stressors.  He reported he was on daily medication prescribed by VA for his "mental psychosis."  He reported the following symptoms: fear of crowds/closed spaces, anxiety, restlessness, obsessive worries, panic, fear of losing control, going crazy, depression, hopelessness, loss of interests, suicidal thoughts, rage, intense violent emotions and actions, irritability, feeling constantly annoyed, inability to relax, always on guard, shame, feeling embarrassed, exposed, violated, guilt, isolated, physically present but emotionally absent, emotionless, alienation, over-controlling, and "addicted to danger."

In October 2006, VA contracted with a private company to do the Veteran's additional sleep study with CPAP.  Follow-up with VA in October 2006 included a nurse practitioner discussing the OSA study with the Veteran and his wife.  It was noted he would need to be on oxygen if not on CPAP.  An order for a CPAP, humidifier, mask, and other equipment for CPAP were ordered to be mailed to the Veteran "ASAP."  In March 2007, the Veteran received a new Opti life CPAP mask.  He had a decrease of nightmares by 50 percent and increased mood due to using CPAP and Wellbutrin, according to September 2007 mental health medication management note.

The Board notes that the Veteran delayed his secondary testing for OSA from September 2005 to July 2006, when he decided he was ready to undergo further testing.  VA contracted out to a private company to do the additional testing, and this was accomplished in October 2006.  The three months it took for VA to find and schedule a private sleep study appears to be normal for a specialized test.   Due to VA's providing a CPAP and ongoing Wellbutrin, the Veteran indicated in September 2007 that he was having decreased psychiatric symptoms.

In July 2007, the Veteran reported he was less depressed than before and had more energy and was excited about his claim with VA, and helping others with their claims.  He denied any suicidal ideation for several months.  In September 2007, the Veteran reported to his VA social worker that he had recently felt more depression and was discouraged about his claim with VA.  He stated his medications were working "fairly well" and kept his moods at a steady level.  In October 2007, the Veteran was seen by his social worker regarding his mental health.  He stated that he was helping other veterans with their background information and he felt he had a "real purpose" and was increasing his socialization.  He also spent some time with his nephew.  He stated he was less depressed.  He was to follow up in one month.  His description of his overall mental health and symptoms to his VA providers in 2007 showed improvement over the symptoms he reported in his March 2006 statement to VA.

In May 2008, a nurse from the St. George Veterans Outpatient Clinic provided a letter which noted the Veteran had been followed as a patient in the mental health clinic for several years, and had been her patient since April 2005.  He "live[d] a great distance from this and other veterans clinics, making treatment an additional burden on himself and his family."  The Veteran consistently traveled to treatment to adequately monitor his medications.  He had the following symptoms: significant nightmares, sleep disturbance, re-experiencing events associated with a traumatic assault, emotional instability, and financial hardship related to his inability to work.  At the time of the letter, the Veteran was on Bupropion and Mirtazapine to promote mood stability and sleep.  A list of medications included that the Veteran had been receiving Bupropion and Mirtazapine from at least May 2004 to September 2008 (when his current prescription would expire).  Again, the mental health provider's description of his mental health symptoms are an improvement on his description of his mental health symptoms in March 2006, and in 2007 he had indicated his medications were helping. 

In June 2008, the Veteran was afforded a VA psychiatric examination.  The examination report is lengthy and cites quite a bit of the Veteran's service and medical treatment history.  It also lists statements from the Veteran and various family members.  It notes that as of May 2008 the Veteran continued to received mental health medication management from VA, and that he had generalized mood stability with "consistent use of Wellbutrin and CPAP."  The Veteran reported increased depression at this time, which he stated he would address with his social worker and was agreeable to an increased dose of Mirtazapine.  He denied suicidal ideation during his May 2008 treatment.  He had trouble with sleep due to nightmares.  Although he stated he had mood stability to his VA treatment provider in May 2008, he reported to the examiner that he did not think his psychotherapy or medications were helping him.  He reported of sleep disturbance, decreasing weight, decreased energy, decreased interest in activities, anhedonia, decreased sex drive, tearfulness, decreased concentration and memory problems, and irritability.  He also had avoidance of social situations, hypersensitivity to criticism, low self-esteem, poor social skills, anxiety, underachievement in work, unemployment, and no friends.  He was noted to have a poor prognosis as he had "developed a very compromised and pervasive style of living with limited social interactions and significant dependency."  He had received mental health treatment over the past several years and "his illness had remained relatively static, as had his symptoms."

Related to the credibility analysis, the Veteran reported during the June 2008 examiner that the first time he had symptoms of a mental disorder was when he was discharged from service.  He stated he got along pretty well with his father and that he was not abusive, but strict.  He stated he graduated high school with "passing grades, Cs."  He stated he was an "easy-going" kid and was a good football player.  He denied any head injuries or loss of consciousness.  He denied any mental health treatment before he went into service.  He stated he had no learning disabilities.  "His overall assessment before the service by the veteran's history is good.  The overall assessment before he went into the service based upon the history gleaned from the C-file, his medical records, was poor."  The examiner noted that the claims file contained correspondence and legal arguments from the Veteran that were at a high level of sophistication, and not consistent with his tested IQ scores, which indicated that either someone else was authoring all of his correspondence or the Veteran did not apply his full effort in testing in order to accentuate the degree of his disability.  He may have a specific learning disability regarding mathematics, but his written documents in the record were above average.  His thought process on submitted written documents was also too well-organized for someone with a schizophrenia spectrum disorder.  The examination report noted that the Veteran's claims file contained significant inconsistencies in the history the veteran reported to various clinicians over the years.  "It is evident that the history he gives currently does not match up to his previous stories, and that the history he reported during the examination was aimed at obtaining service connection or PTSD and left out significant historical items that were not consistent with his diagnosis."  The examiner pointed out the Veteran's VA treatment records included the Veteran's "problems with being truthful."  The examiner suspected that the Veteran's IQ was "significantly higher than the 80 to 85 range which were determined in multiple psychological testing in the past.  He seemed well-versed in the DSM."

A January 2010 mental health PTSD telephone encounter included that the Veteran continued to be busy helping other Veteran's with their VA claims.  He had a big case load and not much spare time.  He wanted to continue with calling in for an update and to process his stressors and his depression.  He "denied suicidal ideation.  Stated he would call again in two weeks."

A February 2011 VA treatment record indicated that the Veteran had sleep apnea with use of a CPAP with mask, but without oxygen, and the result was "sound sleep without snoring."  He was assessed with "sleep apnea, uses CPAP with great results."  Regarding his depression, the VA care provider noted that the Veteran had last seen "Sonia Hales at least two years ago."  It included that the Veteran's depression was worsening since he ran out of Bupropion three weeks ago.  He was referred back to Sonia Hales as he felt a mental health visit was appropriate and he needed a Bupropion renewal.  An addendum February 2011 record from Sonia Hales noted that the Veteran had not been seen by his mental health prescribing registered nurse since May 2008.  He was "stable and receiving mental health medications via his PCP (Hogan)."  A 30 day supply of Wellbutrin was placed and the a mental health appointment for the veteran was ordered.

A March 2012 VA primary care record indicated that the Veteran worked as an independent agent for Vets Against VA.  He exercised regularly, and rated his health as an "8 out of 10."  Regarding his depression, it was noted he had not taken medication for six months, and was "seeing Sonia."  He was on a CPAP for sleep apnea.  He reported no changes since his prior visit one year ago.  His general description was noted as "big, sharp, pleasant, no distress."  He had a normal mini mental status evaluation.  His assessment included "depression, off meds, daily exercise," and "sleep apnea, on CPAP."  He responded negatively to the depression and PTSD screenings.  The Board notes that the 2011 and 2012 records are the last VA treatment records regarding the Veteran's mental health, and the 2012 record is the last record regarding treatment from VA.  During these assessments it was noted that the Veteran had stopped seeing Sonia Hales at the St. George CBOC in 2008, and was having his medications prescribed by his primary care physician.  Because the Veteran was not seen by Sonia Hales or another mental health prescribing physician or nurse, he was only given a 30-day supply of Wellbutrin, which was to last him until he next scheduled an appointment.  It appears from the 2012 treatment record that the Veteran had not followed-up with an additional appointment as he had been without his medication for six months.  He also made no overtures to the VA care provider that he wished to have his Wellbutrin refilled, and denied symptoms of depression during the depression screening at that time.

In April 2013, the Veteran reported that he was submitting a claim for section 1151 benefits for an increase in depression secondary to his CPAP machine not having been serviced since 2012 ("last year").  He stated that he had struggled with coughing, choking, and gasping for air.  His symptoms had intensified such that he was only sleeping a few hours and had to sit upright.  He also argued his depression had increased because he had "not been administered [his] depression medicine in over a year and have had to purchase it privately."  He then cited the regulations of section 1151.  In May 2013, the Veteran argued he was entitled to 1151 benefits for an increase in depression due to VA's failure to properly treat several of his conditions.  He stated that he had not been provided his medications for depression, hypertension, and cholesterol for close to a year, and had to "seek private facilities to provide that life-giving medication."  He also argued that his CPAP machine had not been maintained by VA for close to a year, causing a lack of sleep and further depression.  He cited 38 C.F.R. § 3.361.  The Board notes that private treatment records that were submitted in September 2017 do not include the Veteran's complaints listed in his 2013 statements.  He did not report to his private care provider that he was forced to sit upright, or that he was "coughing, choking, and gasping for air" despite the seriousness of these reported symptoms.

In May 2013, the Veteran provided a list of medications.  In October 2006, the Veteran had a CPAP, humidifier, and mask provided and set up in his home.  A March 2007 record included that a CPAP was set-up at the Veteran's home, along with a humidifier.  Also, a pulmonary mask was ordered in March 2007.  It noted that in April 2010 an auto CPAP and humidifier from VA would replace an old broken unit.  The new CPAP was mailed April 2010 to the Veteran's home.  

On his April 2014 substantive appeal, the Veteran stated that he had not been treated by VA since 2012.  He reported he had not been forwarded Wellbutrin for the past several years, which he indicated was from 2012 to 2014.  He argued that this was an example of VA's failure to properly treat a condition which allowed the continuance or natural progress of a disease, citing 38 C.F.R. § 3.361.

Also in April 2014, the Veteran submitted paperwork from Med-Care Diabetic and Medical Supplies, which noted he was provided with products related to his CPAP machine.  He also provided a print out from Parowan Drug which noted he received his medications, including Bupropion, from Dr. R.S.  He provided a statement that he was "forced to go outside the VA system for his depression and OSA treatment."  He stated that as of April 2014, he was not receiving medication or maintenance of his CPAP.  The Board notes that as of April 2014, the Veteran wasn't receiving any care through VA, and so maintenance of his CPAP machine and prescription medications would, logically, not be provided by VA

In August 2014, the Veteran reported that he had not been forwarded any of his medications since 2013.  He stated that the medications were for hypertension, high cholesterol, and depression.  His CPAP machine had not been maintenanced.  He stated he had to "seek private facilities for treatment."  He again argued that VAMC was not properly treating his conditions, and that "VHA facilities and individual providers had a legal and ethical obligation to disclose adverse events to patients."  The Veteran did not describe any adverse events that may have happened to him; he only cited the VHA Directive.

Additionally, in August 2014, Med-Care provided the Veteran with a new CPAP machine, humidifier, and accessories.  

Following the Board remand, the Veteran's VA medication list was printed in March 2016.  His Bupropion prescription had been filled for the period from February 2011 to February 2012.  This was the last listing for Bupropion.  His other medications were filled through either 2012 or 2013, with no additional medications prescribed or refilled after 2013.

In May 2016, the Veteran was afforded two VA examinations in relation to his section 1151 claim; one provided by a medical doctor and one provided by a psychiatrist.  The medical doctor's VA examination report included citations to a number of VA treatment records, including that he was issued a new CPAP machine by VA in April 2010.  The examination report also cited several of the Veteran's statements regarding his prescribed medications having not been filled by VA in months, and his CPAP machine was not being maintenanced by VA.  The examiner reviewed VBMS, and found that the VAMC did not fail to properly diagnose or treat any of the Veteran's claimed conditions, to include depression, hypertension, and high cholesterol.  The examiner noted that medications for hypertension, high cholesterol, and depression were provided appropriately by VA, and a CPAP machine was also provided.  The October 2006 sleep study provided by VA recommended use of a CPAP, and VA issued a CPAP to the Veteran.  The examiner reviewed the medication history contained in his medical records and noted that the Veteran had prescriptions for simvastatin and lisinopril filled through March 2013.  He had his Bupropion filled through February 2012.  The examiner "reviewed vista web pharmacy list and comprehensive list of prescriptions from 2004 oldest to 2012.  The list seems appropriate quantity and refills given for above listed conditions when prescribed."  

The examiner noted that it was standard practice for physicians and pharmacists to not provide refills for over one year at a time from initial prescription.  The examiner found that VA care was appropriate and timely as far as prescriptions, based on a review of the records.  The Veteran's most recent VA treatment note from March 2012 noted that the Veteran was using "CPAP with great results."  The note did not indicate that the Veteran needed a new CPAP.  He was there for an annual evaluation and for medications.  His hypertension and cholesterol medications were refilled, and the note stated "depression, no meds for 6 months, sees Sonia."  The Veteran stated that Sonia was a St. George VA clinic nurse who helped with refills.  The examiner noted that the Veteran's was provided a new CPAP in April 2010 when it was reported his prior machine was broken.  "Does not appear to have been neglected by VA as far as CPAP care notes in records."  

Regarding if the VA failed to properly diagnose and/or treat any of the Veteran's claimed conditions, the examiner found that VA had not failed.  The examiner noted that when the Veteran was seen by VA providers "he was appropriately diagnosed, treated, and given necessary prescriptions."  The examiner found that VA had not failed to refill any prescriptions, and had not failed to properly maintain the Veteran's CPAP machine.  The examiner noted that reviewing the claims file there were no records to support that "when the Veteran was seen at VA for care that he was not treated appropriately."  "Notes [from] when [the Veteran was] seen by VA seem [to show] appropriate care and do not reflect any reluctance to treat or prescribe or diagnose."

The examiner interviewed the Veteran and his wife together, in person, in May 2016.  The Veteran's wife helped with his care by going with him to appointments, getting his prescriptions, and helping him with filling out paperwork at times.  At the time of the interview, the couple showed the examiner bottles of Bupropion from Dr. R.S. from a January 2016 prescription and dose increase in April 2016.  They also had ibuprofen from Dr. T.H. from a January 2015 prescription, and Simvastatin and Lisinopril from Dr. R.S. from April 2016 prescriptions.  The couple stated that the Veteran was last seen by VA in 2012, and then he "switched" to private providers.  

The Veteran explained that he sought treatment from the VA Salt Lake hospital for primary care from roughly 2003 to 2012.  He noted that Salt Lake City is a 4 hour drive (250 miles each way) from his home.  VA opened the St. George VA outpatient clinic, which was 75 miles from the Veteran's home, so he started to receive mental health treatment there in 2005.  He reported that in 2012, the mental health provider at the St. George CBOC retired.  Prior to that provider's retirement, the Veteran saw his primary care provider in person at Salt Lake VA about once per year, and would receive refills through the St. George clinic, and mail refills throughout the year.  He stated that this initially worked, but that he ran out of medications, as they stopped coming in the mail in 2012.  He "called for appointment at Salt Lake VA and they said need to get refills before see primary care."  The Veteran stated he then "called the pharmacist, who said that he had to see a primary care provider first" before he could have prescriptions refilled.  The Veteran felt he was "getting the run around."  The couple stated that the provider and psychiatric nurse who had been helping with refills had left the St. George CBOC, and the position(s) were unfilled for a while as it is a rural area.  They tried to reestablish care with a new provider in Salt Lake VA, but they had "such a hard time getting into Salt Lake and get refills and did not want to wait, so went to local primary care provider" that the Veteran's wife was already seeing, in the town where he lived (Dr. R.S.).  

Regarding his CPAP machine, the Veteran stated that it was "going ok with machine until VA contractor changed and quit coming to service."  He stated the contractor with VA changed, and he did not know whom to contact for service and supplies.  "Therefore, the Veteran decided to go through a Medicare contracted company for CPAP machine privately."  At the time of the interview, private Dr. R.S. was managing his CPAP and helping to make sure the machine was being properly serviced.  However, in the last four years the private contractor company checking the machine had become less reliable, as the service company is out of state, so the supplies come in the mail.  The examiner noted that he was unable to opine on "administrative aspects of his care at the time the Veteran decided to switch to a private provider."  Notably, section 1151 benefits are not associated with administrative aspects of care, but on VA's furnishing of hospital care, treatment, or examination.  The examiner did not, however, there was no documentation in the medical records to show any denial of care or delay in care or neglect.  Importantly, there was no documentation in his claims file which showed he had any complications caused by VA care.  The examiner found that VA care was provided appropriately and timely based on the documents in his medical records.  Additionally, nothing in the VA medical records documented a lack of care for the CPAP machine or neglect.  According to the Veteran, VA provided for the CPAP appropriately until a vendor contractor changed.  "The Veteran lives in a rural area several hours away from the hospital and it has been difficult to get his CPAP machine serviced, even by a private vender, due to his location."  The examiner noted that there was no objective evidence in the medical records to support his claims regarding the CPAP machine, to include the loss of a VA vendor.  The Board notes that when the Veteran was last seen by VA in 2012, a few months before he transferred care to a private physician, he had indicated that he was able to use the CPAP, and did not report any problems that required maintenance.  VA cannot be held responsible for improper maintenance that occurred after the Veteran chose to switch to a private provider.

Overall, the examiner opined that based on the interview with the Veteran and his wife, and a review of his claims record and VA medical records, "VA provided appropriate timely care for hypertension, high cholesterol, depression, and CPAP machine."  "Based on interview, the Veteran was pleased with VA care provided until St. George providers left.  Then, per Veteran, it was going to be a wait to be seen by new primary provider in Salt Lake, which is far from home, so they decided it was easier to see private primary care provider in [his town] right away for refills."  The examiner found that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or the result of an event not reasonable foreseeable.  "It appears that transition from St. George VA clinic back to Salt Lake VA was not going to be easy for the Veteran, so he transferred care to a private physician in his hometown."  This information is all based on the Veteran's statements, as there were no medical records related to why he chose to switch from VA care to a private primary care provider.  "The available records do not include any evidence of hypertensive crisis or urgent complications of any conditions related to VA care."  The examiner worked in the emergency department and noted that veterans who could not attend appointments or missed appointments with their primary care providers would come to the emergency department to be seen and get refills.  "This Veteran was welcome to go to the VA emergency department at any time he felt he had any urgent medical or mental health need.  He chose to transfer to primary care in his hometown since it was closer and more convenient."  There is no objective evidence in the record to support that the Veteran's decision to change to private care was based on poor VA care.  The records did not show any urgent/emergent conditions or complications that made him seek private care.  "His needed care could have been provided by the VA if he had desired."

During the May 2016 VA psychiatric evaluation, the Veteran was assessed with major depressive disorder, recurrent, moderate.  He had occupational and social impairment with reduced reliability and productivity.  During this examination, the Veteran reported having a sock shoved in his mouth for snoring, and being "beaten" by his cellmates during his time in the brig.  The Veteran first reported the incident of a sock being shoved in his mouth for snoring when he filed a claim for OSA.  This is the first time he reported being "beaten" by "cellmates" during his time in the brig.  The examination report includes some history from his service record and his psychiatric treatment.  He was working as an Agent representing veterans at the time of the examination.  He started receiving psychiatric treatment from VA Salt Lake City's St. George CBOC since June 2004.  Regarding his past psychiatric treatment, he stated he was seen in the 1990s at Salt Lake VAMC for "isolating himself."  He did not report his psychiatric treatment during his adolescence, prior to service.  Regarding his current symptoms, the Veteran stated that he had been feeling depressed for many years, "since his discharge from service."  As was addressed in prior VA decisions, the Veteran had a history of reporting depressive symptoms since adolescence.  He reported he felt hopeless and helplessness, and he "constantly worried about his CPAP machine."  He had poor sleep.  He had never been psychiatrically hospitalized, and had never attempted suicide.  He stated he had thoughts of suicide two days prior because of a nightmare.  

The Veteran was on Wellbutrin, prescribed by Dr. R.S., which was "keeping [him] stable."  He had seen Dr. R.S. for five years, which he stated was "because he could no longer get the medications from VA."  He stated he "went to the pharmacist for refills," and was told he had to have a primary care physician first.  He stated he went to the patient advocate, and he stated she told him his "case fell through the cracks."  The examiner noted that these communications between the Veteran and VA staff were "verbal," and the examiner noted they were not documented in the record.  The Veteran's wife reported that in the past when the Veteran would "quit taking his medications for depression" he would be irritable, angry, and isolative.  The Veteran's symptoms at the time of the examination were listed as: depressed mood, anxiety, chronic sleep impairment, difficult in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation.  The examiner noted that during the examination, the Veteran's level of intelligence appeared to be more than the IQ numbers designated to him after psychological testing in the past.  The examiner provided an opinion regarding the Veteran's in-service psychiatric health, which is not pertinent to this section 1151 claim.  The Board notes that the Veteran's psychiatric symptoms during his 2016 examination are roughly the same as the symptoms he had complained of throughout his life.  His medical records from the 1990s, through 2003 when he sought SSA disability benefits, and when he first sought VA care all included that he had a depressed mood, anxiety, sleep impairment, a low stress tolerance, anger, difficulty obtaining and maintaining social and work relationships, and suicidal ideation without plan.  Indeed, his earlier symptoms of paranoia, delusions, "explosive" anger, and hearing voices had not been listed as current problems for the Veteran, indicating some improvement in his psychiatric symptoms since 2003, and during his VA care.

The psychiatric examiner noted that she could not find any clinical evidence suggesting that VA failed to timely diagnosis the Veteran's depression.  VA medical records showed that the Veteran was seen in mental health in June 2004 for the first time and was diagnosed with depression with psychotic features.  She noted that the last note from his VA primary care physician was from March 2012, and that the records did not indicate that VA failed to refill any of his prescribed medication.  She noted that the question regarding the maintenance of his CPAP was beyond the scope of a VA psychiatrist, but that there was no clinical evidence suggesting that his depression worsened because VA failed to properly maintain the CPAP machine.  

In July 2016, the Veteran's wife stated that "due to the apparent lack of concern and lack of treatment for [the Veteran's] depression and OSA, the VA jeopardized his life.  He reached out to the VA for assistance and it was met with little regard."  She argued that "it was a lack of care and neglect on your part."  She also argued that VA "increased his depression and further challenged his OSA by not treating him as a Veteran."  She stated the he should be "service-connected for his depression and sleep apnea due to VA's failure to treat him and aggravating further these terrible disorders."  The Board notes that the letter did not include a description of how the Veteran's conditions worsened.  She argued that he would have died if she had not sought private treatment, but did not include any emergent or urgent medical records, or even lay statements describing emergent medical symptoms, to substantiate these claims.  Subsequently provided private records do not include an emergent or urgent care related to his OSA or depression. 

In July 2016, the Veteran argued that his VA examinations were inadequate because the examiner failed to consider lay statements from his wife during the examination.  He argued that the VAMC aggravated his depression by failing to administer medications consistently and failing to maintain his CPAP machine.  He also stated that he was aware that emergency treatment was always available to him.  He argued that he was "left with no choice" but to cease treatment with VAMC because Salt Lake City was an 8-hour round trip from his residence.  He argued that without his medications and a properly maintained CPAP the Veteran was "placed in a very precarious and dangerous medical position." The Veteran stated that when he was running out of medication he tried to contact the VA pharmacy, and "a recording instructed him to contact his primary care physician."  He stated he tried to call his primary care physician at the St. George CBOC, but that "no one...would answer the phone."  He stated that his records did show that he had not been treated by VA since 2012, and that no one had "reached out to him," so he felt he needed to seek additional outside assistance.  

From the Veteran's statement, it appears he did not actually speak with anyone at VA regarding his prescriptions running out.  This is in sharp contrast to the Veteran's wife statement from July 2016, that the Veteran's attempts to "reach out" to VA were met with "little regard."  Here, the Veteran essentially argues that because when he called his VA pharmacy and the St. George CBOC, and neither number resulted in speaking with a person, that this was an example of VA refusing to provide his medications in a timely manner.  The Veteran has argued that since his two phone calls went unanswered, he felt he needed to leave VA for a private provider.  Nothing described by the Veteran is VA negligence or carelessness.  Indeed, by his description, he fairly quickly decided to forgo VA treatment and seek private treatment, which would indicate there was a brief lapse in receiving wanted medication, if any.  The Veteran attempted to argue that it was negligent to not appropriately treat him in a "timely manner" and that he felt his anxiety and depression were exacerbated by the VAMC.  However, this July 2016 description of events would indicate that a "timely manner" would have meant that VA immediately provide him with new medications despite the fact that the Veteran did not actually speak to anyone associated with VA prior to deciding he would seek private treatment.  Again, the Veteran did not provide evidence of emergent or urgent treatment for his depression or OSA in 2012, or provide documentation of his being denied appointments or medications from VA.  VA medical records will include notations when a veteran calls and asks for a refill or an appointment, or when a veteran calls to speak to a nurse or social worker or patient advocate.  There were no such records in the Veteran's claims file. 

As noted above, in May 2017, during a VA examination for hearing loss and tinnitus, the Veteran reported for the first time that he had been "punished" in service by being forced to stand next to jet engines "for 2 hours" without ear protection.  A review of VA treatment records from 2004 to 2012 did not include complaint of tinnitus.

A May 2017 rating decision granted entitlement to service connection for tinnitus based on the Veteran's statements during the May 2017 examination.

In September 2017, the Veteran submitted private treatment records from Dr. R.S.  These records were not previously available for VA examiners to review.  In October 2012, the Veteran sought private care with R.S. and noted that he had previously been with the VA clinic, but "want[ed] to go with private insurance, can tell a slight difference when runs out of Wellbutrin."  He had sleep apnea and was using a CPAP, and had recently changed masks and was "sleeping better."  The Veteran had been to see Dr. R.S. a number of times before 2012, for a number of complaints (e.g. back pain, arm pain, shoulder pain).  The Board notes that the Veteran's first private treatment with Dr. R.S. was 8 months after his last VA treatment in March 2012.  He stated that he had "recently changed masks" on his CPAP and was "sleeping well."  When contrasting his statements to his private care provider as compared to his and his wife's statements that he was unable to sleep, sleeping sitting up, and choking and "gasping for air, the Board finds that the Veteran and his wife's statements are not credible.

In April 2014, the Veteran denied he had tinnitus to his private provider.  He also denied anxiety, depression, insomnia, tearfulness, panic attacks, and memory loss.  He was not noted to have any abnormal pulmonary symptoms.  An October 2014 record noted that the Veteran had more energy when using his CPAP for the past 5 to 6 years.  He stated he used the CPAP every night.  He reported he was on disability due to depression, and he was doing "fairly well-gets depressed [occasionally] due to job of helping elderly veterans."  A January 2016 record noted that the Veteran denied anxiety, depression, insomnia, tearfulness, panic attacks, and memory loss.  He had socially appropriate behavior, appropriate mood, flexible affect and mood.  His thought processes and content were appropriate.  He had no suicidal or homicidal intent or delusional content.  His memory was intact.  His pulmonary evaluation did not mention any problems.  Here, when treated by his private physician, the Veteran did not endorse nearly as many psychiatric symptoms as he did during his May 2016 VA examination.

In September 2017, the Veteran was afforded a VA examination in relation to his claim for service connection for migraines.  He stated his migraines began in service following his Sergeant pulling the mattress out from under him and he would fall from the top bunk and his head would hit cement.  He stated his headaches and tinnitus started at the same time, and that his headaches occurred after each head injury, with these instances of being pulled from the top bunk and hitting his head occurring "multiple" times.  The Veteran additionally argued that his "horrible tinnitus" triggered the migraines he had been suffering from since service.  The Board notes that the April 2014 private treatment record where the Veteran denied tinnitus, he also denied a history of headaches.  In fact, the Veteran was prescribed Imitrex in January 2016, which is the first indication he complained of migraines to his private care provider.

A January 2018 fee-basis VA examination (DBQ) for his psychiatric disorder included that the Veteran reported a negative mood with little to no motivation on a daily basis as well as an aversion to social interaction with nearly anyone outside his immediate family.  His wife reported he had mild memory loss, inability to follow complex instructions, and impaired judgment regarding his day-to-day behaviors.  His Wellbutrin had been increased from 75 mg to 150 mg about three months prior.  He was diagnosed with major depressive disorder, recurrent severe, without psychotic features.  Regarding his current functioning, the Veteran stated he was "happy."  He had been married for 38 years and was on "good terms" with his extended and nuclear family.  A DBQ for his sleep apnea noted that he was diagnosed with OSA in 2006.  He had been using a CPAP ever since diagnosis and he reported snoring "most of his life."  The course of the condition since onset, according to the Veteran was "stayed the same."  He had been on continuous CPAP since diagnosis.  He continued to have daytime sleepiness.  

A second January 2018 fee-basis VA psychiatric examination included the diagnosis of major depressive disorder, recurrent, moderate, with anxious distress.  The Veteran noted that his sleep apnea was well managed with a CPAP.  He also had hypertension and had been taking medication for 10 years.  He complained of tinnitus and migraine headaches.  He reported that his mental health symptoms worsened when these medical conditions were exacerbated.  Veteran "exhibits cognitive and vegetative signs of depression.  He reported problems with agitation, worry, and anxiety."  He reported "intrapersonal withdrawal and suspiciousness, and anger."  The examiner noted that these were symptoms of both depression and anxiety.  The Veteran was noted to have depression and anxiety with occupational and social impairment with deficiencies in most areas.  The Veteran was currently employed representing veterans in their disability claims, and had been involved in these matters for 12 years.  He passed a certifying examination to represent the veterans and had a "heavy case load."  

The examination report had a large medical history section which will not be repeated as it is outlined in the Board's factual background.  The Veteran was noted to have seen a VA counselor at St. George for "about 5 years."  He felt that their work together was effective, but then C.A. retired.  The Veteran "tried to follow through with a new counselor, but felt the person was less sensitive to the struggles and issues unique to veterans.  He also felt pressured into group therapy.  He related having been 'accused of faking' by a psychiatrist in Salt Lake City."  The examiner noted that records suggested that the Veteran's wife related that he struggled with telling lies, being unfaithful, and regulating his temper.  The Veteran noted that he needed psychotherapy, but he is "done with the VA clinic."  The Veteran completed psychological testing which showed mild to moderate depression and mild to moderate anxiety.  The examiner noted that based on a review of the record, the Veteran likely had "significant issues with mental health disorders."  He met the criteria for a diagnoses of major depressive disorder and generalized anxiety, but he also may have ADHD, social phobia, and Schizotypal Personality Disorder, but the limited examination and testing did not provide sufficient evidence for these diagnoses at the time of the examination.  The examiner also noted that the Veteran may have a personality disorder given the "recalcitrance for responding to psychotropic medications."  The Veteran reported generalized suicidal thinking, especially when impacted by tinnitus and migraine headaches, but with no serious intent to carry out his plans.  The examiner noted the Veteran cooperated fully with the examination, and that he grew tearful on several occasions while discussing what he perceived to be mistreatment and abuse that he suffered in the Air Force, and he displayed sadness while speaking of the social limitations he had experienced through the years.  His vocabulary suggested average intellectual functioning.  He was articulate and seemed well-educated. 

As the Board highlighted throughout the factual background provided above, the Veteran has provided contradictory statements regarding his medical history, the onset of symptoms, and in recent years (2017 and 2018) he has reported abuses that occurred in service which he did not previously report despite the Veteran's very detailed account of his perceived in-service abuses in a large number of statements from 2003 to 2013.  The Veteran denied tinnitus and headaches during his initial medical history provided to a private physician in April 2014, but later claimed to suffer from tinnitus and headaches since 1971.  He singularly reported a head injury via a bat at age 12 during SSA, private, and VA treatment from 1990 until a 2017 examination, when he related that he had "multiple" head injuries in service from being pulled off of a bunk bed.  Indeed, his 2017 statement that he was "punished" by being forced to stand next to a jet engine in service could be considered not plausible on its face given the expense of running a jet engine for two hours.  

The Veteran's initial attempts to secure service connection for a psychiatric disorder included that he was humiliated by a training officer when the training officer yelled at him, took his canteen, threw it, and made him fetch it in front of a large number of people.  He repeated this incident in a number of statements to VA and to care providers, and this appears to be a factual recounting given the consistency of the story.  As his claim progressed and was denied by VA on several occasions, the Veteran began to report additional abuses in service, to include being struck in the chest while in the brig, seeing violence between other inmates in the brig, being placed in solitary confinement, and in 2017, being "beaten" by his own "cellmates", being forced to stand next to a jet engine, and being pulled onto his head on multiple occasions.  The newly reported abuses (from 2016-8) happened to coincide with his new claims for service connection (tinnitus, hearing loss, and migraines).  

The Board notes that when the Veteran is relating his psychiatric symptoms to his ongoing VA treatment care providers and his private provider R.S., that he described fewer symptoms and problems than when he described his symptoms to VA examiners or in statements to VA.  The Board notes that the Veteran filed this claim for section 1151 benefits in June 2011.  As the claim progressed, he detailed that VA had stopped providing his prescription medications and CPAP maintenance in 2012.  Indeed, treatment records showed he was provided his psychiatric prescription through March 2012, and his hypertension and high cholesterol medications through 2013.  In his 2013 statements, and during his 2016 examination, the Veteran attempted to argue that VA simply stopped providing his medications, CPAP maintenance, and had stopped providing him with VA care in general.  He initially argued that VA had refused to refill his prescriptions or schedule him for an appointment with his primary care physician in a timely manner.  However, in his July 2016 statement, the Veteran revealed that he did not speak to a VA pharmacist or a VA provider in attempting to schedule an appointment.  He reached a recording for the pharmacy, and his one phone call to the St. George CBOC went unanswered.  As he stated, he was unwilling to drive the significant distance to Salt Lake for a primary care provider, and, therefore "decided" that he needed to seek private treatment.  The Veteran filed an 1151 claim for increased disability because he was unable to talk to a VA employee on the phone on the day he realized he could not get a refill on a one-year old prescription.  The Veteran admitted that he knew he could go to a VA emergency room to receive his needed medications.  Instead, he chose the convenience of receiving his care from a private physician in his home town, and filed a section 1151 benefits claim.  

As clearly demonstrated by the Board's thorough evaluation of this Veteran's lengthy claims file, he has been less than forthcoming with VA regarding his claims for benefits.  It appears that the Veteran omits details that he knows are not favorable to the outcomes he is seeking, and he has recently began reporting incidents in service that he had not previously reported, but which match necessary incidents to result in additional benefits.  The Board has provided a number of incidents of the Veteran's lack of credibility throughout his interactions with VA, but also in particular to his section 1151 benefits claim.  Based on this review, the Board places no probative value on the Veteran's self-reported history.  

Upon review of the medical record, there is no evidence that the care delivered to the Veteran from VA deviated from acceptable practices.  He was initially seen, diagnosed, and prescribed medications for his psychiatric disorder in 2004.  He was given sleep studies to confirm his diagnosis of OSA, and VA even had to prod the Veteran into signing up for a second round of testing so that he could receive a CPAP.  He was initially diagnosed in September 2005, and he did not acquiesce to the second test until July 2006.  The test was provided in October 2006, and he was immediately prescribed a CPAP machine.  Ongoing treatment records included providing a replacement CPAP in April 2010, and ongoing prescription medication related to his depression, hypertension, and high cholesterol.  The May 2016 examiner noted that the Veteran was timely diagnosed and properly treated for his hypertension, high cholesterol, psychiatric disorders, and OSA according to a review of the medication record and his prescription list. 

At some point the Veteran chose to stop going to his mental health care provider.  A February 2011 record noted that he stopped seeing Sonia for his depression two years ago.  He had not sought any additional therapy or treatment, but did apparently continue to take his Bupropion because he had run out of medication three weeks prior.  The Veteran was being seen for a yearly primary care visit, and only during that visit did he note that a mental health visit was likely appropriate and that he needed more medication.  There is no indication in the record that he attempted to schedule a mental health care visit prior to the annual.  As he indicated he thought he needed a health care visit in February 2011, he was immediately referred to Sonia Hales, and she provided an addendum in February 2011 that noted that he had not been seen by her since May 2008.  She noted he was getting his psychiatric medication from his primary care physician.  She provided a refill of his Bupropion for 30 days because he had not been seen in mental health for an extended period, and she scheduled an appointment for him to be seen in mental health.  He apparently did not go to this appointment, as the next appointment in the record is from March 2012, when the Veteran stated that he had not taken his depression medication for six months, but he was "seeing Sonia" regarding his depression.  Despite his deciding to not to seek refills on his depression medication between March 2011 and March 2012, the Veteran stated his health was an 8 out of 10.  He was exercising regularly, and he responded negatively to the depression and PTSD screening questions.  There is no record of the Veteran attempting to contact VA for additional services, to include prescription refills, CPAP maintenance, or appointment scheduling after March 2012.  By his own account, the St. George CBOC lost the provider he had been seeing and had not yet found a replacement.  The Veteran was going to have to drive to a farther VA facility to see a primary care physician to have his prescriptions refilled.  He stated that he attempted to call the pharmacy and the St. George CBOC on an unknown date, but that he did not talk to any VA employees before deciding that it would be easier to transfer his care to a private physician through Medicare.  

Given his history, the May 2016 VA examiner found that VA had provided adequate care, and the Board agrees.  The Veteran has argued that VA was negligent in "failing" to provide him with prescription medication and CPAP maintenance from 2012 onward, but the record shows that the Veteran transferred his care from VA to private in 2012.  In fact, the Veteran arguably did not have any lapse in care as he was last seen by a VA provider in March 2012, and he was then seen by his private physician in October 2012 (and he had previously seen him in January 2011).  

In addition to the evidence of record not showing that VA failed to provide adequate care, the credible evidence of record does not show that the Veteran suffered an additional disability.  It is difficult to address an increase in a psychiatric disorder for this Veteran.  As outlined above, the Veteran has had complaints of depressed mood, anxiety, isolative tendencies, irritability, anger, low stress tolerance, difficulty or inability to maintain work and social relationships, and sleep impairment throughout his medical history, from 1990 to the present.  When reviewing his VA treatment records, the Veteran reported that he had improvement in his psychiatric symptoms from 2004 to 2010.  He even indicated in 2006 that he had an improvement of mood and energy with his CPAP machine and Wellbutrin.  The Veteran was followed by mental health consistently from 2004 to 2008.  However, it appears that following the June 2008 VA examination, where the examiner noted that the Veteran had inconsistencies in his reported histories, the Veteran became disillusioned with VA mental health providers.  The Veteran's wife has stated that his psychiatric symptoms are more pronounced when he "quits" his psychiatric medication.  It does appear that the Veteran chose not to pursue his psychiatric medication for a period of time prior to March 2011, and for a period of seven months from March 2012 to October 2012.  As noted above, the severity of the Veteran's depression did not reach a level requiring emergent or urgent care during these periods.  Once the Veteran returned to his medications in October 2012, he has been denying symptoms of anxiety, depression, insomnia, tearfulness, panic attacks and memory loss.  He also had denied suicidal ideation from October 2012 to January 2016 to his treating physician.  As such, the Board finds that the Veteran did not suffer an additional disability, to include aggravation of his depression.  Psychiatric symptoms can wane and wax, but the symptoms the Veteran has reported to treating medical providers from 2004 to 2016 shows an overall improvement in his mental health compared to his treatment records from 1990 to 2004.  

In sum, the record does not show that the Veteran suffered an additional disability/aggravation of his depression during his VA treatment from 2004 to 2012, or from 2012 onward when VA was no longer his source of medical care.  Based on the foregoing, the additional disability element of a claim for entitlement under 38 U.S.C. § 1151 has not been met.  Additionally, the probative evidence does not show that VA's care was inadequate such that it proximately caused the continuance or natural progression of his depression.  38 C.F.R. § 3.361(c)(2).  There is no evidence that VA failed to provide adequate care expected of a reasonable health-care provider, as the Veteran's disorders were properly diagnosed, treated, and prescriptions and CPAP maintenance were provided in a timely manner based on proper practices.  VA did not provide care for the Veteran beyond March 2012 because the Veteran decided to pursue private medical treatment beyond that date.  Although seeking treatment at the distant Salt Lake VAMC until the vacancy at the St. George CBOC was filled would have resulted in inconvenience for the Veteran (making an 8-hour drive), it does not show carelessness, negligence, lack of proper skill, error in judgment, or similar fault on VA's part in furnishing care.  As such, the causation element of a claim for section 1151 benefits has also not been met.

Accordingly, the Board concludes that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for depression, claimed to be caused by VA's failure to provide prescribed medications and CPAP maintenance, are not met.  38 U.S.C. § 1151; 38 C.F.R. § 3.361.  In reaching this decision, the Board has considered the doctrine of doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for additional psychiatric disability, to include depression, is denied. 




____________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs