Citation Nr: 21031472 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 14-33 140 DATE: May 22, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), for residuals of an esophageal perforation is denied. FINDING OF FACT The Veteran has not been diagnosed with an additional acquired psychiatric disability, to include PTSD, that constitutes a qualifying additional disability under 38 U.S.C. § 1151. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for an additional acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§3.102, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1967 to April 1971, to include "brown water" inland waterway service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In his September 2014 Substantive Appeal, the Veteran requested a video hearing before a Veterans Law Judge. See September 2014 VA Form 9, Substantive Appeal. The representative of the Veteran indicated that the Veteran would not be able to attend his requested hearing. See May 2015 Email Correspondence. The Board considers the hearing request withdrawn. Unfortunately, the Veteran expired before this appeal could be completed. The Veteran's spouse was approved as a substitute claimant for the matter on appeal. See November 2015 VA Notification Letter. The matter was remanded in May 2019 to "[o]btain an addendum medical opinion to address the Veteran's 38 U.S.C. § 1151 claims." See May 2019 BVA Decision. The matter was remanded again in January 2021 to "[o]btain an expert opinion from a qualified examiner...in connection with the Veteran's claim for compensation for an acquired psychiatric disorder." See January 2021 BVA Decision. The matter has been returned to the Board for further action. 1. Entitlement to compensation under 38 U.S.C. 1151 for an acquired psychiatric disorder due to residuals of an esophageal perforation "The Veteran contends that he should be granted [compensation] being that an error in judgment was made as to the continuance of the operation even though the Veteran was known to have past adenocarcinoma and any additional stretching of his esophagus would have increased the chances of additional disabilities [sic]." See May 2014 Third Party Correspondence Notice of Disagreement. Here, the Veteran references the March 5, 2013, EGD (Esophagogastroduodenoscopy), performed at the Dorn VA Medical Center. He was awarded compensation under 38 U.S.C. 1151 for esophageal adenocarcinoma with perforated esophagus. He claims entitlement to compensation under 38 U.S.C. 1151 for PTSD. Duty to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by October 2013 VCAA / DTA Letter. See also April 2014 VA Rating Decision Narrative, August 2014 Statement of the Case, and September 2020 and March 2021 Supplemental Statements of the Case. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, the entire record was available to the August 2020 and February 2021 medical examiners, Mental Disorders examinations were performed, and the evaluations were sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. §§ 3.385, 4.87. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See June 2015 Statement of Accredited Representative in Appealed Case ("I rest the appeal on the answer to the Statement of the Case and the hearing on appeal (if conducted), and I have no further argument."). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. Any actual or presumed inadequacies in the August 2020 medical examination were addressed in the February 2021 medical examination. See February 2021 Mental Disorders medical report. The RO's efforts have substantially complied with the instructions contained in the May 2019 and January 2021 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. 38 U.S.C. § 1151 Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death 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; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). "To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment... upon which the claim is based to the Veteran's condition after such care [or] treatment... has stopped." 38 C.F.R § 3.361(b). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent testimony is thus limited to that which the witness has actually observed and is within the realm of his personal knowledge."). The Veteran and his spouse are competent to report symptoms including anger and suicidal ideation; however, "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). When considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, bias, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Buchanan, 451 F.3d at 1337. As a preliminary matter, the Board notes that the threshold determinations of (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 have already been established. See August 2020 VA medical opinions. As a result, the Veteran was granted compensation under 38 U.S.C. § 1151 for esophageal adenocarcinoma with perforated esophagus. See September 2020 VA Rating Decision Narrative. The question for the Board is whether it is at least as likely as not that the Veteran sustained an additional acquired psychiatric disability caused by or the result of his March 5, 2013 VA esophagogastroduodenoscopy (EGD) surgery. Condition Immediately Before Care The Veteran was service connected for Anxiety Disorder, NOS, evaluated as 30 percent disabling, effective October 5, 2011. See September 2020 VA Rating Decision Codesheet. In his November 2011 VA PTSD examination, it was determined that the "Veteran's symptoms do not meet the diagnostic criteria for PTSD und DSM-IV criteria." The Veteran was diagnosed with "Anxiety Disorder NOS." The Veteran was noted to have symptoms of "Depressed mood, Anxiety, Disturbances of motivation and mood." The 2011 examiner noted that the Veteran displayed: "minimal impairment in occupational functioning associated with his diagnosis. He has some social impairment." See November 2011 VA PTSD medical report. During November 2011 VA treatment, the Veteran denied "increasing (emphasis added) depression, anxiety, or presence of suicidal thoughts." See November 2011 VA Nurse Practitioner Note. At a May 2013 radiation oncology appointment, the Veteran was noted with a "Past Medical History: Atrial fibrillation, coronary artery disease, depression (emphasis added), diabetes, gastroesophageal reflux, gout, high blood pressure, and hypothyroidism." See May 2013 Lexington Medical Center Radiation Oncology Consultation. January 2014 private treatment notes document a "Past Medical History" of "Depression." See January 2014 Medical University of South Carolina IP-Consult. Condition After Cessation of Care At a June 2013 mental health appointment, the Veteran stated he was feeling: "depressed and stressed about his medical situation and endorsed passive suicidal ideation...Veteran stated he started to have suicidal thoughts in March (2013) after his (cancer) diagnosis. See June 2013 VA Behavioral Health Initial Appointment Progress Note. July 2013 treatment notes detail that the Veteran was "Adjusting to recent diagnosis of cancer (March 2013)," and the Veteran stated, "I am having trouble coping with the thought that I may need more intensive treatment soon." See July 2013 VA Mental Health Treatment Plan Note. During his August 2013 treatment, the Veteran stated that he was not "too worried about either (upcoming surgery or future CT scans)." His overall goal was to "live a quality life." The Veteran also "denied attempts to harm or kill (him)self in the past year," supported by a negative suicide screen based on negative responses to all three questions. See August 2013 VA Mental Health Note. In May 2014 mental health treatment, the Veteran declined antidepressant medication and expressed an interest in "counseling / assistance dealing with the stress and the emotions that accompany Veteran's diagnosis of cancer." See May 2014 VA Mental Health Nursing Case Management Note. By May 2015, the Veteran expressed "anxiety and depression about his illness, leaving his spouse, etc.," but he denied suicidal ideations. See May 2015 VA Palliative Care History and Physical Note. June 2015 treatment notes indicate that the Veteran was "appropriately grieving" and "expressed being depressed regarding his impending death." See June 2015 VA Palliative Care Social Worker Note. Medical Opinions Pursuant to the May 2019 Board remand, a Mental Disorders examination was completed in August 2020. The psychiatrist reviewed the claims file and offered the following opinion: "It is less likely as not that the Veteran had a psychiatric disorder that was proximately due to or the result of the Veteran's esophageal perforation on March 5, 2013. The Veteran's records show clear and unmistakable depressive symptoms prior to his esophageal perforation on March 5, 2013. This was clearly AFTER [sic] he was already noted to have mental disorder symptoms...Records also indicate that he continued having depression after his esophageal cancer was diagnosed. His cancer caused significant pain, discomfort, and difficulty with food intake, dehydration, and weight loss. In addition, around the same time as his cancer diagnosis, he had psychosocial stressors noted in 2013, when his spouse was being evaluated for signs of dementia." See August 2020 VA Mental Disorders medical opinion. The January 2021 Board remand found the August 2020 Mental Disorders examination inadequate, because it did not specifically address "assessments of an adjustment disorder, as well as symptoms of passive suicidal ideation and anger." See January 2021 BVA Decision. In preparing her opinion, the February 2021 psychologist reviewed all "available records," including the references made in the January 2021 BVA Decision to "Adjustment Disorder, passive suicidal ideation" and "anger." The examiner noted symptoms of depressed mood, anxiety, and disturbances of motivation and mood. Based on the available records, the examiner gauged the Veteran's level of functioning as: "Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." See February 2021 VA Mental Disorders medical opinion. The February 2021 examiner concluded, "There is no evidence to support" additional psychiatric disabilities resulting from the misdiagnosed gastrointestinal disorder between June 2012 and March 2013 and the esophageal perforation. In formulating her opinion, the examiner pointed to the August 2020 medical opinion, which highlighted the "symptoms of depression prior to his esophageal perforation." As a result, the February 2021 examiner could not diagnose any additional psychiatric disorders in the Veteran and elaborated that there were no "further medical records" to support any additional diagnoses. The examiner also added, "[T]he Veteran's symptom presentation on full evaluation better meets (the) criteria for unspecified anxiety disorder. No assessment of current (suicidal ideation) as the Veteran is deceased...There is nothing in (the) records to support that anxiety was allowed to progress due to undiagnosed (gastrointestinal) issues." See February 2021 VA Medical Disorders medical opinion. Analysis In his September 2014 Substantive Appeal, the Veteran stated, "The VA was the cause of my condition, and the cancer was not diagnosed until the doctor perforated my esophagus." See September 2014 VA Form 9, Substantive Appeal. Through her authorized representative, the spouse of the Veteran contends: "The appellant is sincere in her belief that compensation should be granted under 38 U.S.C. § 1151 for an additional acquired psychiatric disorder." See April 1, 2021 VFW Appellate Brief. The Veteran and his spouse are competent to report symptoms of anxiety and depression, and the Board finds them credible to report such symptoms in connection with the diagnosis of Stage 3 esophageal cancer. However, the Board does not find this to be probative evidence that the March 5, 2013 VA hospital care resulted in an additional disability of a psychiatric condition, to include PTSD. This lay evidence focuses on a comparison between the Veteran's anxiety level before and after the March 5, 2013 EGD procedure. Before surgery, the Veteran was not able to keep food down and was losing weight. See June 2013 VA Behavioral Health Initial Appointment Progress Note. His anxiety level before the March 2013 cancer diagnosis was consistent with a previous assessment of "mild or transient symptoms." See November 2011 VA PTSD medical opinion. See also November 2011 VA Nurse Practitioner Note ("denies increasing depression, anxiety, or presence of suicidal thoughts"). In order to warrant compensation under 38 U.S.C. § 1151, there must have been additional disability beyond that level when VA treatment stopped. The Veteran reported "feeling depressed and stressed about his medical situation." See June 2013 VA Behavioral Health Initial Appointment Progress Note. The Veteran was manifesting the same symptoms, i.e., "Depressed mood, Anxiety, Disturbances of motivation and mood" when he was diagnosed with Anxiety Disorder in November 2011. See November 2011 VA PTSD medical opinion. The suicidal ideation reported by the Veteran was specific to his March 2013 cancer diagnosis. See June 2013 VA Behavioral Health Initial Appointment Progress Note. Subsequent treatment notes are negative for suicidal thoughts or ideation by the Veteran. See August 2013 VA Mental Health and May 2015 VA Palliative Care History and Physical Notes. As explained by the February 2021 VA examiner, "[T]he Veteran's (post March 5, 2013) symptom presentation on full evaluation better meets (the) criteria for unspecified anxiety disorder." See February 2021 VA Mental Disorders medical opinion. The Veteran was never diagnosed with an acquired psychiatric disorder after his March 2013 EGD surgery. Treatment notes that indicate "Adjustment Disorder with depressed mood" were part of a "Treatment Plan" developed by the Veteran's social worker to cope with "Problems / Needs" identified by the Veteran, such as "crying spells, irritability, and hopeless thoughts." See July 2013 VA Mental Health Treatment Plan Note. The Veteran's social worker referred to the treatment plan as "homework assignments." See December 2013 Mental Health Note. From a clinical standpoint, there is "nothing in (the) records to support" additional acquired psychiatric diagnoses. See February 2021 VA Mental Disorders medical opinion. The Board does not find that an additional psychiatric disability, including PTSD, has been established due to the March 5, 2013 VA surgery. Conclusion The Board finds that, while the Veteran and appellant believe the Veteran sustained an additional psychiatric disability, they are not competent to provide a diagnosis of additional disability in this case. The issue is medically complex, as it requires specialized medical education and / or knowledge to evaluate the medical evidence and consider the relevant DSM criteria for the diagnosis of a mental health disorder. The presence of additional disability caused by or a result of VA endoscopy is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA medical opinions, as this is the only competent medical evidence of record addressing the matter. Also, this evidence is more probative than the unsubstantiated lay opinions. It was prepared by medical professionals after review of the claims file, supported by a detailed rationale, and included data from the Veteran's medical history and treatment. There is no favorable medical evidence to weigh against these opinions in this matter. The Board finds that the competent and probative evidence shows there was no additional acquired psychiatric disability resulting from VA care at the VAMC Dorn from March 5, 2013. As such, in the absence of an additional psychiatric disability incurred from VA treatment, the requirements of 38 U.S.C. § 1151 have not been met. Therefore, entitlement to benefits under this section is not warranted, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.