Citation Nr: 21069314 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-26 803 DATE: November 18, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of electroconvulsive therapy (ECT) performed at the VA Medical Center (VAMC) in Gainesville, Florida is denied. FINDING OF FACT The Veteran does not have an additional disability of the ECT treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of ECT have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from May 1966 to April 1969. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in August 2016. In September 2021, the Veteran requested an extension. In a September 17, 2021, letter, the Board granted a 30 day extension for this matter. That period has expired. To obtain compensation under 38 U.S.C. § 1151, a claimant must show a "qualifying additional disability" resulting from VA treatment or hospitalization. The proximate or direct cause of the "additional disability" must be (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical or surgical treatment or (2) an event which was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether additional disability exists, the veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 3 8 C.F.R. § 3.361(b). A July 1999 VA treatment record reveals the Veteran's history of episodes of depression with feelings of despair and thoughts of suicide. An August 1999 VA treatment record reveals the Veteran's history that he could not remember his therapy homework assignment or much else from two days the previous week which he attributed to hitting his head prior to his last therapy session. The records reveal diagnosis of bipolar II disorder. A March 2001 VA treatment record reveals the Veteran's spouse's history that she had noticed a downward trend in the Veteran's cognitive abilities and increased depression. The Veteran's wife also reported decline in memory. The Veteran reported when he was given a mini mental status in primary care he was unable to give the date or remember any of three objects after 10 minutes. The Veteran's wife reported that she was "concerned about his significant decline." The record also reveals multiple head injuries sustained by the Veteran. An April 2001 VA treatment record indicates that the Veteran was tested with Cognistat to evaluate cognitive functioning based on reported decline. The Veteran's spouse reported decline in the Veteran's memory and attention span. The Veteran reported that the last time he remembered being happy was when he was drinking. Testing revealed results within normal range of functioning. The record notes that because of the reported head injuries, long alcohol history, and chronic depression, and assuming that the Veteran was previously within superior range of intellectual functioning, it appeared prudent to have him evaluated more completely by a neuropsychologist since he may quite likely have deficits that did not show on screening. The record indicates that a November 2008 VA assessment reported administration of brief cognitive screening secondary to possible cognitive deficits, with a score within normal limits, and that a November 2007 VA note reported that the Veteran wanted to be checked for Alzheimer's disease due to memory failure. VA inpatient records associated with the January 2009 ECT therapy report that the Veteran had prior history of depression with periodic exacerbations and passive suicidal ideation. The records also reveal prior histories of symptoms including decreased energy and interest and poor concentration. The Veteran reported worsened depression symptoms since spring 2008. The records reveal history of transient headache, mild retro-grade memory loss, and agitation after ECT. Records associated with the second and third ECT reveal histories of being "somewhat fuzzy" about events occurring in the morning before the ECT and of forgetting his wife's name after another ECT. The records indicate that the Veteran was discharged on January 16, 2009, after a fifth ECT due to symptom improvement. A January 26, 2009, record reveals the Veteran's history of significant memory impairment; the record indicates that the Veteran was fretful of memory loss and that the Veteran had discontinued all medication. The assessment was that the anxiety and fretfulness could be the return of depression or related to discontinuing medication after discharge from the hospital and that the memory loss was transient. A February 2009 VA telemedicine record reveals the Veteran's history of feeling "really depressed" two days after an ECT session. The record notes that this was "atypical" for ECT. A subsequent February 2009 VA telemedicine record reveals the Veteran's wife's history that the Veteran had been "very different" and had marked memory loss since receiving ECT. She reported that the Veteran seemed to have forgotten "years" and often asked why they were living in their current location. She stated that he also seemed "bewildered" and that he became acutely depressed after his recent maintenance treatment. However, she also reported improvement over the past few days. The physician noted that it was "very unusual but not impossible" for ECT to cause that much memory impairment and that memory was expected to return as the treatments were spaced out. The physician added that having an episode of depression right after treatment was also uncommon and that it seemed like the treatment may be doing more harm than good. The physician was inclined to discontinue or put the treatment on hold. An addendum reveals the Veteran's history that his memory had been extremely poor and that the loss seemed to extend at least 15 months prior to treatment. The physician reported that the amount of memory loss was very unusual and that ECT should be stopped until at least some memory returned or improved. The record notes that the Veteran had strong obsessive traits and had been sitting at home obsessing over his minute by minute changes and overanalyzing. A March 2009 VA telephone record reveals the Veteran's history of pain buildup in a part of the body and that he has to move or the body part will spasm. A March 2009 VA treatment record reveals the Veteran's history that he lost memory of the three or four years before ECT and pieces of previous years. He reported insomnia and a painful tension and a burning/squeezing pain build up in the muscles so he has to switch positions when in bed. The record reveals a determination of continued deepening of depression since the ECT in February 2009. The examiner noted that the effect of the Veteran's discontinuance of his antidepressant several days earlier was relatively modest. The examiner reported that the description of what happens to the Veteran's legs at night was consistent with restless leg syndrome. The physician reported that memory loss of the last three or four years could be considered short-term memory when it comes to ECT but amnesia to that extent usually resolved in several days. The physician reported that the Veteran's memory loss was greater than usually seen. The physician added that the ECT had possibly suppressed restless leg syndrome in a fashion similar to its effect on Parkinson's. A February 2010 VA treatment record reveals the Veteran's history of "whole body jerks" and global amnesia for the three years prior to the ECT. He also reported losing some ability to make new memories and focus his attention and developing restless leg syndrome after the ECT. The examiner noted that it was a "complicated case" with diagnoses including major depression, dysthymic disorder, and mixed anxiety disorder and provisional diagnoses of dissociative disorder provisional and cognitive disorder. A May 2010 VA examination record reveals the Veteran's spouse's history that the Veteran was a "zombie" after the inpatient ECT and that the Veteran was not provided additional ECT treatment due to unusual adverse reaction. The Veteran's spouse reported that since the ECT, the Veteran had almost total loss of remote and recent memory, with inability to remember things as remote as 10 years ago or his children or how to use a computer. He also reported episodes of painful, gripping shocks or spasms from the waist down. The examiner determined that there was no evidence for epilepsy and that the episodes previously described as seizures are diagnosed as restless leg syndrome. The examiner diagnosed subjective retrograde anterograde memory loss, not corroborated by testing. Neuropsychological testing revealed the Veteran's history of cognitive impairment since January 2009 ECT. Regarding cognition, the Veteran reported problems with past memory, learning new information, and difficulties with concentrating, word finding, and complex problem solving. The Veteran explicitly denied any cognitive difficulties prior to ECT. The examiner noted that the Veteran appeared easily frustrated at times during the evaluation and that review of multiple performance based indicators of effort and dissimulation revealed some possible waxing and waning of effort with no clear evidence of negative impression management. The examiner reported that the results were possibly an underrepresentation of true cognitive functioning. The record notes that neuropsychological evaluation revealed some variability of effort, with performances grossly within normative expectation within domains. The examiner stated that the results of the evaluation were not consistent with significant neurocognitive dysfunction and that there was not consistent evidence to indicate a pattern of cognitive decline suggestive of a dementia, brain trauma, or any other organic etiology. The examiner stated that there were several aspects of the Veteran's self-reported symptom history that needed to be addressed. The examiner first noted that the current history of intact (even high-functioning) cognitive status prior to the ECT was "highly inaccurate" based on review of the record, which showed prior histories from the Veteran and his spouse of significant changes to the Veteran's cognitive ability in the late 1990s, evaluations in 2001 for cognitive problems, and concern over Alzheimer's Disease due to memory deficit and evidence of poor decision making in the 1990s. The examiner also determined that the report of extremely large gaps in memory including lost knowledge about a book that he was planning to write was "rather implausible," explaining that even severe traumatic brain injury would not be expected to result in this level of retrograde amnesia. The examiner reported that although it was "certainly possible" for the Veteran to lose some memory from around the time of the ECT, the Veteran's report of extensive amnesia was suspect. The examiner added that the Veteran demonstrated intact ability to learn and remember new information which would be expected to be at least mildly impaired in the presence of damage to the brain. The examiner determined there were three possible etiologies for the reported symptoms. First, the examiner noted that the Veteran had a history of significant depression and self-reported memory complaints consistent with a somatic focus and that the Veteran's belief in the etiology of the memory complaints may have shifted from concern about Alzheimer's disease to ECT. Second, the examiner found it possible that the Veteran had some mild complications after ECT and that the Veteran then developed a more intense somatic focus and increased depression leading to greater subjective sense of impairment. The examiner noted that the Veteran might also be altering his memory of prior functioning and viewing himself as more intact prior to ECT than he was and that he felt significantly more impaired because he was comparing himself to an idealized self. Finally, the examiner found the possibility of negative impression management could not be fully ruled out and might be relevant even in the focus of both a somatic focus and depression. The examiner determined that emotional/personality factors were more likely the root of the subjective symptoms. The examiner determined that the Veteran's pattern of memory loss was nonorganic and not consistent with being a residual of ECT. The examiner reiterated that the Veteran claimed a profound loss of memory for a four-year period occurring four to five years prior to the ECT which is not seen in brain injury, particularly given some well-maintained skills demonstrated on exam and that though the Veteran claimed no recovery of function, he demonstrated the ability to learn new material in activities of daily living, e.g., driving independently in a new city, and on discussion of current events. Finally, the examiner reported that the results of neuropsychological testing showed no cognitive impairment. The examiner determined it was less likely than not that the Veteran had neurologic deficit including memory loss as a result of ECT. The examiner added that the restless leg syndrome was also not a residual of ECT because there was no mechanism by which ECT would cause restless leg syndrome. A May 2010 VA psychiatric examination record reveals the Veteran and his spouse's history of symptoms including depressed mood, loss of interest, concentration difficulties, hallucinatory episodes, loss of confidence due to memory impairment, loss of creativity, loss of spirituality, and an attitude of "giving up" when overwhelmed. The record reports that the Veteran had a car accident associated with loss of consciousness when he was 45 and that an April 2010 magnetic resonance imaging (MRI) showed mild age-related cerebral volume loss. The Veteran's wife reported that the Veteran had retrospective and patchy amnesia for up to 16 years since the ECT and the Veteran reported amnesia for information of the last three to four years. The examiner diagnosed major depressive disorder and dissociative amnesia. The examiner stated that the two conditions were related and mutually aggravating. The examiner reported that ECT is a well-established, widely used, albeit controversial, treatment for severe depression and that researchers report that long-term cognitive problems are "very rare." The examiner noted that a critic of ECT and lead researcher in a study reported in the Journal of Psychiatry and Neuroscience found chronic global cognitive deficits in post-ECT patients though the researcher concluded that it was "unlikely that such findings, even if confirmed, would significantly change the risk benefit ratio of this notable effective treatment." The examiner stated that a May 2010 comprehensive battery of neuropsychological testing revealed generally average to high average intellectual abilities consistent with premorbid expectations and no consistent evidence of a pattern of cognitive decline. Based on the record, the examiner found it less likely than not that the ECT caused additional disability. The examiner explained that, first, there is no evidence of any organic brain disorder as supported by neuropsychological results (completed on May 2010), cognitive testing (completed in May 2010), or an MRI of the brain (completed in April 2010). Second, the examiner reported that the Veteran's depression was severe and refractory to medication prior to ECT and that the depression continued to be in the severe range after treatment but that the Veteran reported significant change in how he experienced himself after ECT treatment. The examiner stated that severe depression, fatigue, and trauma can be causal to amnesia so although the ECT did not cause any detectable harm, it was most likely that the reported memory loss is a result of psychogenic amnesia related to severe depression. The examiner stated that psychogenic amnesia is not completely understood and no explanation has been confirmed that can account for the wide variety of presentations. A June 2010 VA medical record reports that there was not substantial evidence to suggest the Veteran had significant damage to his brain and that emotional/personality factors were more likely at the root of his subjective symptoms. The record adds that cognitive impairment was ruled out and neurocognitive testing was confounded by variable effort. An April 2015 VA neuropsych record reveals the Veteran's history of cognitive decline since ECT. The record reports that assessment of symptom validity reporting on several measures indicated a tendency to overreport atypical psychological symptoms and that the Veteran demonstrated a tendency to make excuses for intact performance. The record reports that variability in task effort could not be ruled out although there did not appear to be overt efforts at exaggeration of cognitive deficit. The record reports that there was no compelling evidence to support a diagnosis of attention deficit hyperactivity disorder. The record notes that the Veteran had a chronic history of mood disturbance, diagnosed as bipolar disorder and more recently depression and that advanced age and cognitive insults including ECT may factor in. The record adds that the record reflected a long history of concern about memory and cognitive functioning that was not consistent with subjective repot of memory changes immediately after ECT. The record adds that symptom validity measures reflect reduced reliability in symptom reporting and personality testing is consistent with health concerns and a tendency to over report symptoms. The record states that current test results do raise the possibility of mild cognitive impairment as there appears to be slight decline from the results reported in the 2010 testing in some areas, but not at a level to support a diagnosis of dementia. An August 2019 VA treatment record reports that the Veteran reported difficulty with memory due to ECT but the examiner was unable to rule out confabulation. July 2021 VA medical records reveal a VA psychiatrist's determination that it was less likely than not that the Veteran had additional disability of memory/cognitive impairment following the ECT. The psychiatrist explained that neuropsych testing did not show any evidence of cognitive disorder and numerous examiners had ruled out any ECT related residuals. The psychiatrist added that the Veteran reported memory problems prior to the ECT in 2009, which were severe enough to request evaluation for Alzheimer's disease. The psychiatrist added that psychogenic amnesia is a controversial condition which describes unexplained amnesia caused by psychological issues (i.e., a nonorganic cause) and not an external force or organic cause. The psychiatrist explained that the suggestion that the Veteran had psychogenic amnesia reveals a determination that the complaints were unrelated to ECT. After consideration of the record, the Board finds the record does not support the finding that the Veteran has an "additional disability" as defined by VA as a result of ECT treatment. The record includes multiple post-ECT neuropsych evaluations, and each VA medical professional has determined that the Veteran does not have an additional neuropsych disability as a result of the ECT. Although the record includes competent histories from the Veteran, his spouse, and some acquaintances that the Veteran manifest memory impairment and other symptoms after the ECT, the Board finds the histories are not probative evidence of additional disability. Significantly, the Board finds the histories are not credible evidence of post-service onset of impairment because they are contradicted by the record. The record demonstrates multiple histories of significant memory and cognitive impairment and other symptoms prior to ECT. After review, the Board finds the contradiction is too great to give any probative value to the current histories of significant symptoms only since the ECT. In making this determination, the Board finds the evidence of concerning cognitive decline in 2001, 2007, and 2008 are particularly probative. There is no medical finding of additional cognitive or neuropsych disability after the ECT. The Board notes that the record does not include histories of restless leg syndrome, which is the diagnosis for the reported "seizures," prior to the ECT. The record does not include any medical indication that the restless leg syndrome is related to the ECT, however, and a VA examiner determined that it was not an additional disability. The mere fact that the restless leg syndrome postdates the ECT is not sufficient evidence of a relationship. Accordingly, the Board must conclude that compensation under the provisions of 38 U.S.C. § 1151 is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.