Citation Nr: 21004525 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-33 140 DATE: January 27, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for an additional acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to April 1971. His awards and decorations included the Combat Action Ribbon. Unfortunately, the Veteran died in June 2015. The appellant is his surviving spouse, and she has been recognized as a valid substitute claimant. See November 2015 notification letter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran’s appeal originally included the issue of entitlement to service connection for bilateral hearing loss and entitlement to compensation under 38 U.S.C. § 1151 for an esophageal perforation. However, in a March 2020 rating decision, the RO granted service connection for bilateral hearing loss. In addition, in a September 2020 rating decision, the RO granted entitlement to compensation under 38 U.S.C. § 1151 for esophageal adenocarcinoma with perforated esophagus. The March 2020 and September 2020 decisions constitute a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, those matters are no longer on appeal, and no further consideration is necessary. In August 18, 2020 VA medical opinions, the examiner opined that it was at least as likely as not that the Veteran’s diagnoses of gastrointestinal disorders between June 2012 and March 2013 were misdiagnosed. He further opined that it was at least as likely as not that the misdiagnoses, failure to diagnose esophageal cancer prior to March 2013, and the Veteran’s esophageal perforation resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. In addition, the examiner opined that it was at least as likely as not that the misdiagnoses, failure to diagnose esophageal cancer, and the Veteran’s esophageal perforation resulted from events that could have been reasonably foreseen by a reasonable healthcare provider. Moreover, the examiner opined that it was at least as likely as not that there were residuals from the misdiagnosis, including metastatic esophageal cancer and death. In an August 27, 2020 VA medical opinion, the examiner opined that it was less likely as not that the Veteran had a psychiatric disorder that was proximately due to or the result of his esophageal perforation. In so finding, she stated that the Veteran suffered from symptoms of depression prior to his esophageal perforation in March 2013. The Board finds that the August 2020 VA medical opinions do not adequately address whether the Veteran had additional psychiatric disability for purposes of compensation under 38 U.S.C. § 1151. In particular, the examiners did not address whether the Veteran had additional psychiatric disability due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. Therefore, a remand is necessary to obtain an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board notes that the RO granted service connection for anxiety disorder, not otherwise specified (NOS), in a December 2013 rating decision. In so doing, the RO assigned a 30 percent evaluation based on symptoms that included a depressed mood. The Veteran’s VA medical records also document assessments of an adjustment disorder, as well as symptoms of anger and passive suicidal ideation. See, e.g., June 2013 and July 2013 VA medical records. Therefore, a remand is also necessary to obtain an opinion to address whether the Veteran had additional psychiatric disability that was separate and distinct from his service-connected anxiety disorder, NOS. The matters are REMANDED for the following action: Obtain an expert opinion from a qualified examiner pursuant to 38 U.S.C. § 5109 in connection with the Veteran’s claim for compensation for an acquired psychiatric disorder under the provisions of 38 U.S.C. § 1151. The entire claims file must be made available to the examiner. The examiner is requested to address the following: (a) The examiner should state whether the Veteran had additional psychiatric disability as a result of the misdiagnosed gastrointestinal disorders between June 2012 and March 2013, the failure to properly diagnose esophageal cancer prior to March 2013, and the esophageal perforation. In rendering this opinion, the examiner should address whether any additional psychiatric disability is separate and distinct from the Veteran’s service-connected anxiety disorder, NOS. To the extent possible, the examiner should distinguish which symptoms are attributable to any additional psychiatric disorder as opposed to the service-connected anxiety disorder, NOS. The examiner should also address the VA treatment records that documented assessments of an adjustment disorder, as well as symptoms of passive suicidal ideation and anger. See, e.g., June 2013 and July 2013 VA medical records. (b) Is it at least as likely as not that the Veteran had additional psychiatric disability due to the carelessness, negligence, lack of proper skill, error in judgment or similar fault of VA in misdiagnosing the gastrointestinal disorders between June 2012 and March 2013, failing to properly diagnose esophageal cancer prior to March 2013, and the esophageal perforation. (c) Is there any additional psychiatric disability that a reasonable health care provider would not have foreseen? (Continued on the next page)   A complete rationale for any opinion offered should be provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.