Citation Nr: 21001550 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 04-42 070 DATE: January 8, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a psychiatric disability. FINDING OF FACT The Veteran’s psychiatric disability was not proximately caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, nor by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a psychiatric disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to August 1977. This matter is on appeal from an October 2004 rating decision. It was previously remanded by the Board in July 2007, August 2012, January 2016, August 2017, and again in October 2019. The Veteran testified before a Veterans Law Judge at a Videoconference hearing in March 2007. During the pendency of the claim, the Board notified the Veteran that the Veterans Law Judge who conducted his hearing had retired and that he had the right to another hearing. The Veteran responded that he did not desire another Board hearing. Entitlement to compensation under 38 U.S.C. § 1151 for a psychiatric disability The Veteran contends that service connection for a psychiatric disorder, including panic attack and dysthymic disorder, is warranted under 38 U.S.C. § 1151, due to negligence of VA. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service connected. For purposes of this section, a disability is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361 (c)(1). Merely showing that a Veteran received care, treatment, or examination, and that the Veteran has additional disability, does not establish cause. Id. Hospital care, medical or surgical treatment, or examination cannot cause the continuation or natural progress of a disease or injury for which the care, treatment, or examination 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). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault 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, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's, informed consent. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32; 38 C.F.R. § 3.361 (d)(2). First, he claims that his psychiatric disorder was exacerbated by improper treatment performed during a VA therapy session in February 2004. He also asserts that after his February 2004 physical therapy, he was subjected to rude and unprofessional behavior by his VA treatment providers. Furthermore, he claims that the additional lower back pain and subsequent treatment he received, caused additional psychiatric disability in the form of both depression and anxiety. Second, the Veteran claims that he was given an incorrect dosage of medication in February 2004, and that this error caused him to develop additional psychiatric symptoms, including obsessive compulsive disorder. In support of his claim, his March 2004 and November 2004 statements indicated that the Veteran was provided the wrong medication for his knee and back injury by his therapist at VA Salisbury’s pharmacy. He was treated poorly on many occasions, which aggravated his anxiety. He also experienced discriminatory comments by his physician, Dr. Jensen, which has exacerbated his stress and anxiety. In his VA Form 9, the Veteran specifically indicated that he was discriminated by his primary care physician, Dr. Cavanaugh, and his therapy physician Dr. Jensen and therapist ‘Beatriz.’ In his October 2004 statement, the Veteran asserted that following physical therapy for his knee, his physical therapist failed to follow VA’s procedure, which ultimately caused his current disorder. His primary care physician had ordered Tens Unit and a knee brace. However, the physical therapist refused to follow the doctor’s orders and started physical therapy and proceeded to force his leg back sharply more than once. When she did this, it reinjured his back. The Veteran asserted that after this incident, the physician tried to cover up this error in judgment and shifted the responsibility by blaming on his weight. The therapist’s lack of professionalism in questioning his race and addressing his weight, was “insulting and degrading.” This negligence caused has exacerbated his disabilities. Service treatment records show that in August 1976, the Veteran was referred to mental health for an evaluation for discharge due to “multiple social problems desires release for the Corps.” The Veteran was provisionally diagnosed with immature personality disorder. The evaluation noted that the Veteran exhibited no physical symptoms or emotional problems and that the Veteran “stated clearly that all he wishes from the psychiatrist was, ‘out of the service.’” The notes states that there was insufficient evidence to warrant any psychiatric diagnosis and no evidence of major mood disturbance, neurosis, psychosis, thought disorder, or organic brain disease. He was seen again in September 1976 with chief complaints of his desire to leave the Marine Corps. The examining physician noted no history of psychiatric problems. The Veteran reported that he joined the Marine Corps to get out of a civilian legal charge. He had a history of larceny and running away from home. The official recommendations noted that the Veteran’s “problems are of an administrative nature and should be handled accordingly.” The examining physician noted that the Veteran was unmotivated for duty and has made poor adjustment to the demands of military service. It was also noted that if he does not get discharged for manipulative behavior, such a suicidal gesture is a likely way he will handle his frustration. Post service, private treatment records dating November 2001 showed that the Veteran had a long-standing history of generalized anxiety and panic attacks with work conflicts. He was also being treated for depression. A March 2003 VA treatment note showed that the Veteran sought help with anxiety and depression that began in the mid-1990s due to various reasons including the death of this father, his experience as a victim of assault/robbery, and work-related stress. The Veteran had even been receiving therapy pursuant to the death of his father. By August 2003, he was given a diagnosis of panic disorder without agoraphobia and dysthymic disorder. VA psychology notes in September 2004 documented symptoms of anxiety and depression. He spent the majority of the session detailing his frustration towards the delay in receiving treatment as well as his feelings of being disrespected by various staff members, including his problem with his primary care physician. While he is pleased with his current primary care physician, he still displayed a great deal of frustration and anger about past events. He was encouraged to work on changes he could make to change his life. At his March 2007 Board hearing, the Veteran testified that Dr. Cavanaugh, Dr. Jenson, and Beatrice (the therapist), failed to exercise care. The therapist was very rude, unprofessional, and was verbally attacking him, calling him overweight and was making insinuations about his race. After being told that he was provided incorrect doses for his medication, he became very involved in the management of his medication, even developing a compulsion with checking his medication. The Veteran asserted that his overall condition had begun improving but that his recovery was derailed as a result of his encounter with VA employees. In July 2007, the Board remanded the matter to afford the Veteran a new VA examination to address his psychiatric condition. He was afforded a new VA examination in April 2010. There, the Veteran told the examiner that his multiple and chronic problems with the VHA and VBA systems have reportedly increased his stress and anxiety levels. Based on the Veteran’s service treatment records, the examiner noted that he was sent to a mental health professional and was diagnosed with an immature personality disorder, with no other evidence of mood disturbance. In 2003, the record reflected findings of problems related to anxiety and depression, which began in the mid-1990s. Upon evaluation, the Veteran complained of having to deal with his employer regarding his VA appointments and being allowed time off for his appointments. The April 2010 VA examiner noted a diagnosis of ‘anxiety disorder not otherwise specified,’ and notes that an axis II diagnosis could not be obtained or determined at that time. Due to inconsistencies in his current and past reports, difficulty with re-direction, the examination could not be completed, and a diagnosis could not be accurately rendered. The examiner notes that the mental disorder symptoms that the Veteran has were not severe enough to interfere with any occupational or social functioning, and that his disability warrants a diagnosis, but does not fully meet the criteria for a specific anxiety disorder. In response to the April 2010 VA examination, the Veteran submitted a May 2010 statement claiming that the April 2010 VA examiner failed to inquire or address the therapy appointment in 2004 that triggered additional stress and anxiety. He asserted that the examiner also did not discuss the “obvious OCD” that he developed and that she failed to address his anxiety disorder and panic attacks, which is a recognized disorder according to the list of 5 diagnoses under anxiety disorder. He continued to seek psychiatric treatment at the Salisbury VAMC on a regular basis was on medication. Since the April 2010 VA examination report did not contain an adequate medical opinion, the Board remanded the matter in October 2010 for a new medical opinion. The examiner was instructed to determine whether there is at least a 50 percent probability that the Veteran incurred an additional neuropsychiatric disability, which resulted from his February 2004 VA medical treatment, or from any negligence or carelessness in VA prescription drug treatment. A November 2010 medical opinion was obtained pursuant to the October 2010 Board remand. The VA medical examiner found that it was less likely than not that the Veteran’s medical treatment in February 2004 resulted in an additional neuropsychiatric disability. In reviewing his record, the examiner noted the Veteran’s longstanding history with difficulty coping with stressful situations, which extended back to his military service. His diagnoses of anxiety and dysthymia extended back to 2003, with report from the Veteran that his problems began in the 1990s, following the death of his father. His psychology intake in 2004 was due to pain in his leg and back. Overall, the Veteran’s symptoms had preceded the February 2004 incident and had continued beyond that. The November 2010 examiner found no evidence of a new psychiatric condition following the February 2004 incident. While the back pain is a stressor for the Veteran, it did not result in a new diagnosis since all the symptoms treated had been consistent both before and after the 2004 incident. For example, the Veteran reported complaints about panic attacks when having to deal with VA. However, it is more likely due to his difficulty coping with stressors in general. Furthermore, there is no indication that his reported panic attacks are limited to contact with the VA. His diagnosis of anxiety non-specific is more of a generic diagnosis and does not indicate a new neuropsychiatric condition. Therefore, it is less likely that the Veteran’s reported incident in February 2004 resulted in additional neuropsychiatric disability. In January 2011, the Veteran was seen for a mental health issue in which he stated that his stress and anxiety have been increasing. He told the physician that over the last 6 months, he has had several ongoing problems with his gall bladder/pancreatitis, chronic pain, and kidney stones. He has also been experiencing increased stress at work. He added that he has been very unhappy with his encounters with different VA providers. In his October 2011 statement, the Veteran asserts that the Salisbury VAMC has been falsifying medical records to the detriment of the Veteran. This has been a continuing trigger that is directly caused by the VA. It was acknowledged by the Privacy Officer at the Salisbury that there were in fact, inaccuracies in his files. The Board notes that based on a March 2011 correspondence between the Veteran and the Salisbury VAMC, several corrections were made regarding his medical history. In support of his claim, the Veteran submitted records from Dr. T. from the Salisbury VAMC psychiatric care. Dr. T.’s March 2011 notes indicated that the Veteran had a long history of anxiety and depression for many years and has engaged in supportive therapy. The Veteran had been feeling frustrated, upset, and anxious about different things, especially regarding the inaccuracy of his medical records. However, based on Dr. T.’s notes, no additional psychiatric diagnoses were rendered. The Board remanded the claim for additional development in August 2012. Pursuant to the August 2012 Board remand, the Veteran was also afforded a new VA examination in March 2014 for his 1151 back disability claim. After recounting the 2004 therapy incident by the Veteran, and a thorough review of the claims file, the VA examiner concluded that the Veteran did not suffer from any additional disability due to VA treatment in February 2004. His lumbar and cervical spine disease has resulted from aging and daily wear and tear. At most, the occurrence of his back pain after his therapy session was related to a preexisting back disease that was uncovered by the therapist’s maneuver that is a cardinal part of his preexisting back disease. This is a diagnostic maneuver used by physicians to diagnose back disease. Furthermore, his lumbar disease has progressed from the incident in 2004 as noted in his latest MRI results in 2011. The coexistence of similar neck disease affirms the conclusion that his back and neck condition are due to aging. Additionally, he suffered at least two significant injuries to his back which added to his back disability. Both injuries were job related. Finally, The VA examiner attributed the conflict to personality issues and poor human interaction. The Veteran’s frame of mind, his high expectations of the VAMC, his financial distress, and his mental health issues made for a toxic interaction over the course of several months in dealing with the VAMC pertaining to the February 2004 visit. The medical evidence is against finding that there was additional medical injury inflicted on the Veteran during his encounter with his physical therapist. In September 2014, the Veteran, through his representative, challenged the adequacy of the March 2014 VA examination as the report mischaracterized two significant back injuries from his civilian employment and age. The matter was remanded again in January 2016 for further development and for the procurement of his Social Security Administration (SSA) records, which were obtained in April. His SSA mental health notes between April 2010 and August 2011 consistently documented his anxiety and depression. The Veteran complained about increased stress at work and his frustration over the inaccurate documentation of his medical records. In September 2015, the Veteran reported losing his brother to leukemia, which has added to his stress. VA treatment records in July 2016 reported that the Veteran was seen for individual therapy to address his psychiatric complaints. The VA physician noted that the Veteran has issues with chronic pain, which exacerbate his symptoms. The Veteran was noted to be very diligent about ensuring that VA providers are aware of what transpires with his outside providers and that he expresses his frustration with the VA system. The Board notes that in June 2018, a Board decision was rendered regarding the Veteran’s claim for a degenerative disc disease under 38 U.S.C. § 1151, finding that the Veteran’s physical therapy in February 2004 did not result in additional disability of the lumbar spine. Instead, the evidence indicates that the pain reported during his physical therapy was expected, which was due to the existing L3 radiculopathy. Furthermore, the VA examiner concluded that the Veteran’s back disability was also related to aging. No additional injury resulted from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment. In April 2019, the Veteran’s mental health treatment record noted that he meets the diagnostic criteria for adjustment disorder with anxiety and depressed mood, and chronic pain syndrome. The Veteran continued to report feelings of being emotionally and physically overwhelmed by his health crisis. He indicated that him and his family have been dealing with his health issues, which causes high levels of fatigue. He asserted that his significant health problems have resulted in lengthy stays in the hospital. In June 2020, the Veteran reported continued high anxiety as he has been dealing with medical health difficulties and other stressful events. By July 2020, he reported having to take medication and engage in anxiety management skills. He indicated that he was particularly concerned about his Parkinson’s disease. In October 2019, the Board remanded this claim again, finding the November 2010 opinion insufficient as it failed to address whether the Veteran suffered from additional disability as a result of any negligence or carelessness in VA prescription drug treatment as requested in the Board’s October 2010 remand. Therefore, on remand, the Board requested an independent medical opinion by a mental health specialist to address the existence or increased psychiatric disability resulting from the Veteran’s February 2004 treatment, including his VA-performed physical therapy and/or in VA prescription drug treatment. Pursuant to that remand, the Veteran was evaluated in August 2020 to assess his current psychiatric disorder. Upon review of the claims file and a telehealth interview, the examining physician confirmed the Veteran’s generalized anxiety disorder, with panic attacks. He also has a diagnosis of major depressive disorder. The physician found that the symptomatology of the diagnosed conditions overlapped and were at times, interdependent, making it impossible to reliably and fully differentiate what symptoms are associated with each diagnosis. Because psychiatric disorders are known to be reciprocally exacerbating, suffering from one psychiatric condition increases the risk of developing another diagnosis. The examining physician noted that prior to and during service, the Veteran was not presented with a mental condition. It was not until after his service that he began receiving outpatient psychiatric care through his local VAMC in March 2003 and was diagnosed with dysthymic disorder and panic disorder. It was noted that his psychiatric symptoms began in the 1990s. In addition to having a psychiatrist (Dr. D. Southworth), he also attends individual therapy with Dr. Latham, twice a month. The Veteran indicated that he noticed worsening of his symptoms after his Parkinson’s diagnosis in 2019 and had also been struggling with insomnia secondary to his restless leg syndrome. He currently endorses symptoms such as depressed mood, crying spells, anhedonia, changes in appetite, insomnia, chronic fatigue, and feelings of worthlessness, with panic attacks approximate 2 to 3 times per week. In conclusion, the examining DBQ physician could not support the Veteran’s claim. First, the physician found that it was less likely than not that the Veteran sustained additional or increased psychiatric disability as a result of his February 2004 VA physical therapy session and any other subsequent treatment. The Veteran had claimed that during his physical therapy, rather than providing him with a TENs unit and a right knee brace as initially requested by his physician, the VA physical therapist manipulated his leg such that he suffered from increased lower back pain. He was also subjected to rude and unprofessional behavior by his VA treatment providers. These experiences caused additional psychiatric disability has he experienced increased depression and anxiety. The examining DBQ physician found that taken in totality, the Veteran’s description of such events is equivalent to suffering from a bad day as a result of poor interpersonal interactions with others. Such interactions led to dissatisfaction with others as a universal phenomenon and should not be pathologized. His description of the event does not reasonable meet the threshold of PTSD criteria and is not significant enough to result in the onset or worsening of any other psychiatric condition. His medical records do not show that he suffered from any additional disability as a result of the events that occurred on the day in question. Second, the Veteran asserted that after receiving the incorrect dose in February 2004, he began exhibiting compulsive behavior to make sure that he now receives the correct dosage. The examining DBQ physician found that it is less likely that the Veteran sustained additional or increase psychiatric disability as a result of receiving incorrect medication dosages in February 2004. While receiving an incorrect dosage of medication may lead to an emotional reaction, it would not be reasonable to expect that such experience would lead to a mental illness or the exacerbation of a current psychiatric condition. If anything, it has made the Veteran more cautious before taking his medications to ensure his personal safety. It has not been shown that he suffered from any additional disability as a result of the mistaken dose in February 2004. Third, the DBQ physician found that it was less likely that such action was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or was it a failure to exercise the degree of care that would be expected of a reasonable health provider. Furthermore, it is less likely than not that any additional or increased disability was due to an event not reasonable foreseeable in determining whether an event was reasonably foreseeable, the medical professional should consider whether the risk was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Therefore, it is less likely than not that the claimed psychiatric condition under 1151 was caused by or became worse as a result of the VA treatment at issue. Recent VA treatment records in September 2020 show that the Veteran desired continued therapeutic support. He had continued to struggle with depression and anxiety, which has intensified after the unexpected death of his brother. Both the Veteran and his wife expressed interest in long term mental health care and education on meditation exercises to improve his physical and emotional awareness. In reviewing the evidence of record, the Board finds that service connection for a psychiatric disability under 38 U.S.C. § 1151 is not warranted in this case. Overall, the Veteran’s treatment records indicate that he has encountered various factors that affect his psychiatric condition. Earlier medical records showed that the Veteran had already been struggling emotionally over the death of his father. Subsequent records have also noted that his employment had been a great source of stress for him, in addition to dealing with chronic pain from his multiple service-connected disabilities. While the Board does not doubt that he became highly frustrated and even infuriated by his encounter with VA services, the Veteran has not shown that an additional qualifying disability resulted from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. It is more likely that the Veteran has difficulty in dealing with stressors in general rather than developing a new psychiatric disorder from this particular incident. The Veteran’s 1151 claim for a psychiatric condition in part, was intertwined with his 1151 claim for his back disability. However, based on the Board’s decision in June 2018, the medical evidence did not show that the Veteran sustained any additional back injury as a result of VA care. This, therefore, also does not support the Veteran’s assertion that he developed an additional psychiatric disorder as a result of poor lumbar spine treatment. The Board finds that the August 2020 VA opinion is highly probative with respect to entitlement to compensation under 38 U.S.C. § 1151 for a psychiatric disability and is adequately based on objective findings as shown by the record. Accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran’s history, and provided a rationale for the opinion given. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that the August 2020 VA opinion provides competent, credible, and probative evidence which shows the Veteran’s psychiatric disability was not proximately caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or by an event not reasonably foreseeable. VA treatment records show that the Veteran had suffered from various psychiatric disorders, including panic attacks, anxiety, and depression, prior to the February 2004 incident and the subsequent incorrect medication dosage. In November 2001, the Veteran was already being treated for general anxiety as well as depression. VA treatment notes also dating from March 2003 documented an existing problem with anxiety and depression. While he continued to seek counseling and therapy after the February 2004 incident, the Veteran often cited to other stressors. For example, in January 2011, the Veteran complained that his stress levels have been increased due to several ongoing problems with his gall bladder/pancreatitis, chronic pain, and kidney stones. He has also been experiencing increased stress at work. His treatment records from Dr. T. merely noted the Veteran’s ongoing stress but did not discuss its etiology in any detail. His Social Security Administration records between April 2010 and August 2011 have also noted work stress in addition to his frustration with his incorrect medical documents. Then, in May 2019, the Veteran complained of emotional distress mainly due to his “health crisis” and its effects on his family members. Thus, over the course of his appeal period, by his own account, the Veteran has identified a number of stressors unrelated to VA’s treatment procedures that have contributed to his current psychiatric status. (Continued on the next page)   For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s psychiatric disability was proximately caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or by an event not reasonably foreseeable. Compensation under 38 U.S.C. § 1151 is therefore denied. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.