Citation Nr: 21013051 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-32 460 DATE: March 8, 2021 ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of overuse of anesthesia due to treatment provided by the Veterans Affairs Medical Center (VAMC) in Salisbury, North Carolina, on June 24, 2005, is denied. FINDING OF FACT The Veteran did not develop any qualifying additional disabilities following June 2005 VA hospitalization and treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of overuse of anesthesia due to treatment provided by the VAMC in Salisbury, North Carolina, on June 24, 2005, are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1987 to October 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In May 2019, the Board remanded the appeal for further development. 38 U.S.C. § 1151 Eligibility Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for residuals of overuse of anesthesia due to treatment provided by the VAMC in Salisbury, North Carolina, on June 24, 2005, is denied. The Veteran asserts that he has a residual qualifying disability due to overuse of anesthesia from treatment during his VA hospital visit in June 2005. Specifically, he maintains that he went into a panic following the administration of paralytic drugs for his scheduled operation, that he had to be discharged without the procedure occurring, and that he has continued fear of operations as a result. See March 2011 VA Form 20-0820, August 2012 Correspondence and September 2018 Board Hearing Transcript at 13. In order to warrant compensation under 38 U.S.C. § 1151 there must be a qualifying additional disability which was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the additional 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; see also 38 C.F.R. § 3.361. Further, in order for a disability to qualify for compensation under 38 U.S.C. § 1151, the disability must not have been the result of the veteran’s willful misconduct. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these three (3) factors must be shown: (1) additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. In determining whether a veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 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 cause. 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 or injury for which 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). Here, as discussed below, the Board finds that the Veteran did not incur an additional qualifying disability following his June 24, 2005 VA hospital care. Prior to June 24, 2005 VA hospital care, the Veteran had a history of psychiatric symptomatology including anxiety, depression, and mood instability. See June 7, 2005 VA treatment record. To this end, the Veteran himself reported a long history of mental health problems that began during service, specifically feeling suicidal and depressed. See September 2018 Board Hearing Transcript at 5. The Veteran was admitted to a VA hospital for a surgical procedure on June 24, 2005. The VA procedure note stated that the Veteran arrived stating he was “nervous and didn’t like needles.” Subsequently, he was given Robinul and Zofran and he began hyperventilating and had a syncopal episode and “very brief apnea” after being transported to the operating room while still conscious. The attending physician further stated that VA medical personnel then gave him oxygen and monitoring equipment and administered other drugs for his increased blood pressure and heart rate and that the “patient recovered quickly” thereafter. The Veteran then had anxiety and another panic attack in the recovery room, with anger outbursts directed toward medical staff attending to him. The Veteran then refused further medical treatment or assessment of his condition, the surgical procedure was not performed, and he was discharged. The Veteran’s mother stated that he had a long history of anxiety and anger outbursts and that he grew up in an abusive home with his father who he expressed a desire to kill. Lastly, the attending physician noted that the Veteran was nervous and anxious and trying to meditate and that she suspected that his panic attack led to the increased O2, which decreased CO2 and stimulus to breathe, but that he was currently “doing great”. See June 24, 2005 VA treatment record. Notably, she stated that no further operations were scheduled for the Veteran at that time. Thereafter, in March 2011, the Veteran filed service connection claims for anxiety and entitlement to compensation under 38 U.S.C. § 1151 simultaneously. In a March 2020 VA medical opinion, after a thorough review of the claims file, the examiner opined that the Veteran did not sustain additional disability following his June 24, 2005 VA treatment. Instead, the examiner stated that the Veteran had a natural progression of his psychiatric condition, and that such progression would not be a reasonably foreseeable outcome of the June 24, 2005 care or any type of risk that a reasonable health care provider would have disclosed. The Board finds this opinion to be highly probative, given the Veteran’s self-reported history of psychiatric symptomatology dating back to service and the attending physician’s detailed account of his June 24, 2005 visit, recalling the Veteran’s mental condition prior to any treatment from VA medical personnel and the Veteran’s mother’s statement regarding a history of anxiety and anger outbursts. Lastly, the Board notes that the Veteran is separately service-connected for major depressive disorder at a maximum rating of 100 percent from March 2011, the date of his claims. Thus, the Board finds that the first factor, additional disability, is not established and the claim fails on this basis alone. The Board need not address the remaining two factors as no additional disability has been found. There is no competent opinion to the contrary. To the extent the Veteran asserts that he has an additional disability due to his VA treatment on June 24, 2005, the Board finds the above medical opinion more probative because although he is competent to report certain symptoms like fear, diagnosing a resultant disability distinct from his major depressive disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his assertions do not constitute competent medical evidence. Accordingly, the preponderance of the evidence demonstrates that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for his residuals of overuse of anesthesia due to treatment as the Veteran’s June 24, 2005 VA hospital visit as his subsequent treatment did not result in any additional disability. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. As there is no probative evidence that the Veteran incurred additional disability, the Board need not reach the questions of whether proximate cause of the additional 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 (though, as indicated above, available opinions of record addressing these elements are against the claim). Accordingly, the claim is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.