Citation Nr: 0023718 Decision Date: 09/07/00 Archive Date: 09/12/00 DOCKET NO. 97-00 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151, for disability due to VA medical treatment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Counsel INTRODUCTION The veteran served on active duty from December 1955 to September 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating action of the Boston, Massachusetts Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for disability due to VA medical treatment is supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151, for disability due to VA medical treatment is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Compensation for injuries incurred or aggravated by VA medical care is awarded pursuant to 38 U.S.C.A. § 1151. The veteran's representative submitted a claim for compensation premised on 38 U.S.C.A. § 1151 in November 1995. At the time the veteran filed his claim, this statute stated: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter and dependency and indemnity compensation ... shall be awarded in the same manner as if such disability, aggravation, or death were service- connected. 38 U.S.C.A. § 1151 (West 1991). For claims filed prior to October 1, 1996, a claimant is not required to show some element of fault on the part of VA. See Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). Under 38 U.S.C.A. § 5107(a), all claimants seeking compensation, including those seeking compensation under section 1151, have the initial burden of showing that their claim is well grounded. Jimison v. West, 13 Vet. App. 75 (1999). For a claim to be well grounded under the pre- amendment version of 38 U.S.C.A. § 1151, the appellant must provide: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 12 Vet. App. 460 (1999). In the present case, the evidence includes an October 1998 statement from George S. Freeman, M.D., a private physician who noted that the veteran was hospitalized for treatment of depression, complicated by the presence of tremors which were considered to have been caused by Paxil (a medication reportedly prescribed by VA physicians). This physician noted that the veteran no longer had significant tremors. Thus, the Board finds the veteran's claim is well grounded. ORDER The claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151, for disability claimed to be the result of VA medical treatment is well grounded. REMAND Inasmuch as the veteran has submitted a well-grounded claim, VA is obligated to assist him in the development of that claim. 38 U.S.C.A. § 5107(a). Medical records associated with the claims folder include the report of a September 1995 VA hospitalization which yielded a principal diagnosis of resting tremors, probably secondary to Paxil. It was noted that the veteran had noted periodic tremors "[s]ince 20 years ago;" however, the persistence of the tremors prompted the current admission. [The Board notes historically that the Food and Drug Administration did not approve the introduction of Paxil (paroxetine hydrochloride), in the United States prior to 1993. See www.namimi.nami.org.] Upon further testing, it was felt that there was a temporal relationship between the tremors and intake of Paxil and that medication was changed. It is unclear whether the tremors continued after the change in medication. As noted hereinabove, a private physician commented in October 1998 that the veteran no longer had significant tremors. That physician did not indicate, however, whether the veteran was currently tremor free. An October 1994 VA chart extract includes the prescription for Paxil in the treatment plan, but is not clear whether that is the initial prescription. The Board notes that in an October 1998 letter, Sanford M. Levy, M.D., a private physician, stated that to the best of his knowledge, Paxil had been originally prescribed by a VA physician. Dr. Levy also referred to an August 3, 1995 note by Dr. Mark Anderson to the effect that a VA psychiatrist recommended increasing the veteran's Paxil dosage. There is no record of Dr. Anderson's August 1995 note within the claims folder. Thus, the precise nature of the relationship between the veteran's tremors and the use of Paxil is still unclear. Thus, Dr. Anderson's August 1995 note, and any associated treatment records, are necessary to adjudication of the veteran's claim. Robinette v. Brown, 8 Vet. App. 69 (1995). From the evidence currently of record, the consequences of the veteran's VA treatment are unclear. The resolution of this matter will require legal conclusions based upon the medical evidence of record, and neither the Board nor the RO can exercise its own independent judgment on medical matters. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, further development, to include obtaining a medical opinion based on a review of the complete record, is necessary. Thus, the case is REMANDED to the RO for the following action: 1. The RO should ask the veteran to identify the names, addresses and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claim since he began using Paxil. After securing the necessary release, the RO should attempt to obtain copies of those records identified by the veteran which have not been previously secured. The Board is specifically interested in obtaining treatment records from Dr. Mark Anderson. If any records cannot be secured that fact should be documented in the claims folder and the veteran informed in writing. 2. After completion of the foregoing, the RO should review the claims folder and identify when the medication Paxil was first prescribed. 3. Thereafter, if is has been determined that Paxil was first prescribed by a VA physician, or if a VA physician increased the dosage despite the presence of tremors, then the veteran should be afforded a VA neurological examination in order to obtain an opinion as to the effect of the VA treatment. The claims folder and a copy of this REMAND must be made available to the examiner for review prior to the examination. Based on the examination and review of the claims folder, the examiner should respond to the following questions: (a) Does the veteran currently suffer from any tremor? (b) Did the veteran suffer from tremors prior to beginning his use of Paxil? (c) Is it at least as likely as not that any currently demonstrated tremors can be linked to the use of Paxil? The examiner is reminded that the negligence standard is not applicable. The rationale for the opinion given should be explained in detail. If the examiner disagrees with any opinion of record, he/she should so indicate and note the reasons for any disagreement. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the medical opinion has not been obtained, appropriate corrective action is to be taken. 5. Thereafter, the RO should again review the veteran's claim. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). DEREK R. BROWN Member, Board of Veterans' Appeals