Citation Nr: 0117021 Decision Date: 06/25/01 Archive Date: 07/03/01 DOCKET NO. 96-10 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for impotence and urinary dribbling as a result of medical treatment by the Department of Veterans Affairs in May 1992. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from February 1976 to May 1978. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in October 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. By a decision dated August 5, 1999, the Board denied the veteran's claim. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in June 2000, upon a joint motion by the veteran-appellant and the Secretary of Veterans Affairs, vacated the Board's decision of August 5, 1999, and remanded the matter to the Board for further development of the evidence. REMAND Title 38, United States Code § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospitalization, or medical or surgical treatment, compensation shall be awarded in the same manner as if such disability were service connected. Amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 require a showing not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. However, those amendments apply only to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg. 31263 (1998). Therefore, as the veteran filed his claim prior to October 1, 1997, the only issue before the Board is whether he developed impotence and urinary dribbling as a result of taking medication prescribed by a VA physician in May 1992. The veteran contends that medication which he received from VA in May 1992 and which he took for 5 days as treatment for hypertension immediately resulted in erectile dysfunction (impotence) and later resulted in urinary dribbling. The record reflects that the veteran was treated for hypertension through non-VA sources beginning in January 1991, when Maxide was prescribed. Later in the same month, Lisinopril, 5 milligrams daily, was prescribed and he was continued on Lisinopril until June 1991. During the period he was maintained on Lisinopril, no complaints or findings involving impotency or urinary dribbling were shown. In June 1991, Lisinopril was discontinued due to the presence of a cough; he was then placed on Calan SR, 240 milligrams, once daily, and continued thereon until at least February 1992. The veteran was seen at the VA Medical Center in Kansas City, Missouri, on an outpatient basis on May 22, 1992, for a variety of complaints, and during the course of the ensuing physical examination it was noticed that the veteran's blood pressure was elevated. At that time, he reported having previously been treated for hypertension with Lisinopril, but that he had been without his anti-hypertensive medication for a period of months. Lisinopril, 10 milligrams daily, was prescribed. The veteran reports that he remained on Lisinopril for a five-day period, and that near the close of that period, he had burning on urination and with ejaculation, followed by impotence. The record reflects that following the May 22nd appointment, he was not thereafter seen until June 9, 1992, when the veteran reported that he had experienced impotence since beginning Lisinopril on May 22, 1992. The diagnosis was of hypertension--impotence on Lisinopril. Lisinopril was discontinued and Verapamil SR, 240 milligrams daily, (the generic equivalent of Calan SR) was prescribed. All anti- hypertensive medication was later stopped for a two-week period, beginning in June 1992, but with a reported continuation of the impotency. In July 1992, no improvement in the veteran's complaints of impotency was reported; clinical impressions of hypertension--fair control, and impotence--doubt medication effect, were offered. The veteran was thereafter referred to the VA Urology Clinic, where examination in August 1992 led to an assessment of erectile dysfunction. On the occasion of a psychological evaluation in August 1992, the veteran reported total impotence and some incontinence after urination. The veteran attributed the noted complaints to his start of anti- hypertensive medication in May 1992. Also noted was the veteran's statement that an unnamed physician had told him that Lisinopril caused impotence. In the opinion of the examiner, there appeared to be some level of anxiety and somatization as to the current episodes. The veteran is not shown to have been seen thereafter until January 1993, when his only pertinent complaint was of continued impotence. The assessments were of hypertension-- poor control due to noncompliance and of impotence--doubt medication, question of microvascular disease. Later In January 1993, it was noted by a medical professional that the veteran's lack of erections was probably organic versus psychological. Various treatment modalities were thereafter attempted for management of the veteran's sexual dysfunction. When seen in May 1993, he reported no erections whatsoever and testosterone shots were then begun and continued over the ensuing months. In October 1993, the veteran complained of urinary dribbling, in addition to a decrease in the strength and caliber of his urinary stream. The assessments were of a bilateral inguinal hernia and a tender prostate with bladder outlet obstruction symptoms. In December 1993, the veteran's terminal dribbling of urine was found by a treating physician not to be related to any obstructive problems, such as benign prostatic hypertrophy. Further complaints of urinary dribbling were set forth in July 1994. When seen by the VA psychology service in August 1994, the veteran reported having some spontaneous erections which did not last. An assessment by a resident physician in the Mental Health Clinic in September 1994, based on the veteran's history, was of an adjustment disorder secondary to impotence, secondary to anti-hypertensives. Another resident in March 1995 offered diagnoses of major depression, mild, single episode, in full remission; and "impotence" secondary to "antihypertensive medication ?" At that time, it was noted that androgen therapy had permitted the veteran to succeed in sexual intercourse with his spouse. In April 1995, the veteran reported not having sexual dysfunction anymore. In May 1995, complaints of impotence were renewed. The veteran was afforded a hearing before the RO's hearing officer in February 1996, and still another hearing as to the same issue before the Board in Washington, D. C., in October 1997. At those times, the veteran advanced his primary contention that use of Lisinopril, beginning on May 22, 1992, led to impotency and a urinary disorder involving urinary dribbling. In December 1997, the Board remanded this case to the RO to obtain the opinion of a specialist in urology on the issue of the medical likelihood that taking Lisinopril, a medication the veteran had taken before without side-effects, for 5 days in May 1992, caused him to develop chronic impotence and a disorder manifested by urinary dribbling. While this case was in remand status, the veteran continued to be seen at a VA mental health clinic, where, in April 1997, he stated that his primary problem was premature ejaculation, not impotence. The veteran was examined by a specialist in urology in March 1998. A genitourinary examination was essentially unremarkable. The diagnoses were: impotence; depression; and mild decreased bladder tone due to medication resulting in some occasional dribbling, with a few drops of urine. The examiner commented that the veteran's impotence was based on a combination of medication and depression, and that he had a mild hypotonic bladder secondary to medications for hypertension and impotence. In October 1998, the specialist in urology, who had reviewed the veteran's medical records, offered his opinion that: short-term use of Lisinopril does not cause impotence or urinary dribbling; in the veteran's case, using Lisinopril in May 1992 for 5 days did not cause the side-effects which the veteran was complaining about; it was not at least as likely as not that Lisinopril was the cause of the veteran's symptoms; and medications which the veteran was currently taking might have the side-effects of impotence and urinary dribbling. The parties to the joint motion to remand this case from the Court to the Board stated that the Board should consider obtaining a medical opinion from a specialist in endocrinology, and the Board will remand this case to the RO for that purpose. Accordingly, this case is remanded to the RO for the following: 1. The RO should request that the veteran identify all physicians and medical facilities, VA or non-VA, which have treated him for impotence and/or urinary dribbling since October 1998. After securing any necessary releases from the veteran, the RO should attempt to obtain copies of all such clinical records. In the event that any records identified by the veteran are not obtained, the RO should comply with the notice provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 2. The RO should then arrange for the veteran to be examined by a specialist in endocrinology. It is imperative that the examiner review the pertinent medical records in the claims file and a separate copy of this REMAND. The examiner should determine whether the veteran currently suffers from chronic impotence and urinary dribbling. The examiner should offer an opinion on the question of whether it is at least as likely as not (a 50 percent or more likelihood) that VA-prescribed Lisinopril, which the veteran took for approximately 5 days in May 1992, resulted in current chronic impotence and urinary dribbling, if found. A rationale for the opinion expressed should be provided. 3. Upon receipt of the report of examination and opinion, the RO should ensure that the question posed above to the examiner has been answered in full. If not, the report should be returned to the examiner for completion. Then, after any additional development required by the VCAA, the RO should review the evidence and readjudicate the veteran's claim. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this REMAND are to assist the veteran and to obtain clarifying medical information. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). BRUCE KANNEE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).