Citation Nr: 0301473 Decision Date: 01/27/03 Archive Date: 02/04/03 DOCKET NO. 02-06 190 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a bilateral shoulder disability due to treatment of a seizure disorder by the VA in August 1994. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for aggravation of Parkinson's disease due to VA treatment in February 2000. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Cooper, Counsel INTRODUCTION The veteran served on active duty from November 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the VA RO which denied a claim for compensation under 38 U.S.C.A. § 1151 for a bilateral shoulder disability claimed as due to aggravation of a seizure disorder following VA treatment in August 1994 and for aggravation of Parkinson's disease due to VA treatment in February 2000. The veteran was scheduled for a Board hearing in but he failed to appear. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the appropriate claims addressed by this decision has been obtained by the RO. 2. VA stopped the veteran's seizure medication as part of his treatment after he had been seizure free for a number of years. This was held to be medically indicated. He had a seizure which resulted in bilateral shoulder injuries. 3. There is a VA medical opinion that the bilateral shoulder injuries due to a seizure were not foreseeable. 4. The veteran was given Reglan by the VA although it was contraindicated or should not be given to persons with Parkinson's Disease or a seizure disorder. 5. The use of Reglan appears to have caused an increase in Parkinson's symptoms. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C.A. § 1151 for a bilateral shoulder disability due to treatment of a seizure disorder by the VA are met. 38 U.S.C.A. §§ 1151, 5100 et. seq. (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 and 3.358 (2002). 2. The criteria for compensation under 38 U.S.C.A. § 1151 for aggravation of Parkinson's disease claimed to be due to VA medical treatment, are met. 38 U.S.C.A. §§ 1151, 5100 et. seq. (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 and 3.358 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the Veterans Claims Assistance Act (VCAA) of 2000 became effective during the pendency of this appeal. 38 U.S.C.A. § 5100 et. seq. (West Supp. 2002). There have also been final regulations promulgated to implement the new law. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326. The Board has therefore reviewed this case with the provisions of those laws in mind, and finds that VA's duty to assist the appellant in developing the evidence pertinent to the claims has been met. In this regard, the Board notes that the veteran has undergone VA examination and pertinent medical treatment records were requested. The veteran has been informed of the information and evidence necessary to substantiate his claim through rating decisions and statements of the case, and was specifically advised of the notice and duty to assist provisions of the VCAA in the 2002 statement of the case. He has not identified any additional, relevant evidence that has not been requested or obtained. As it appears that all pertinent evidence has been obtained, even without specific notice as to which party will get which evidence, the Board finds that the claims are ready to be reviewed on the merits. See VCAA; Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the action below, no further development is needed. The veteran claims compensation under 38 U.S.C.A. § 1151 for a bilateral shoulder disability as a result of aggravation of a seizure disorder claimed as due to VA treatment. Specifically, the veteran asserts that a VA treatment provider advised him to discontinue the anti- seizure medication, Tegretol in August 1994. He subsequently suffered a seizure and fractured both of his shoulders. The veteran also claims that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 for aggravation of Parkinson's disease due to VA treatment. He states that in February 2000 he was prescribed Reglan by the VA to treat a hiatal hernia. He asserts that his Parkinson's disease was aggravated by the medication. The Board notes that 38 U.S.C.A. § 1151 was amended by Section 422 of Public Law 104-204. The new version of the law is more stringent than the old version and essentially requires that compensation under 38 U.S.C.A. § 1151 may be paid only if additional disability is the result of fault on the part of the VA in providing treatment or by an event which was not reasonably foreseeable. This revised law is effective with respect to claims filed on or after October 1, 1997. The veteran's claims for compensation under 38 U.S.C.A. § 1151 were filed after the recent version of the law on this benefit came into effect, and thus the claims are governed by the current version of the law. VAOPGCPREC 40-97. More specifically, the current version of the law provides, in pertinent part, that compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if the additional disability were service connected. A disability is considered a qualifying additional disability under the law if it is not the result of the veteran's own willful misconduct and the disability was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the disability was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West Supp. 2002). An August 1994 VA psychiatric record reflects that the veteran was seen for depression. A history of Parkinson's disease was noted. A history of a seizure disorder was also noted and the role of organicity could not be ruled out. An August 1994 VA electroencephalography (EEG) report noted that the veteran had a history of generalized convulsive disorder. It was noted that he was on Tegretol but had been seizure-free for the past 13 years. EEG was ordered to help discontinue anticonvulsant medication. The diagnostic impression was abnormal EEG due to background slowing and frequent bursts of generalized slowing intermixed with possible sharp waves with epileptiform potential. An August 1994 VA neurology consultation report reflects that the veteran had symptoms of stiffness, slow movements and decreased memory. A history of seizures was reported. It was noted that the veteran had a total of six seizures previously, the last one 13 years prior. The diagnosis was Parkinson's disease, stage 2, most likely idiopathic; history of seizures, and coronary artery disease. The examiner recommended that the veteran discontinue the use of Tegretol and return to the clinic in three months. A December 1994 VA medical record reflects that the veteran was seen with complaints of headache and increased blood pressure readings. A history of Parkinson's disease was noted. On neurological examination, a slight increase in rigidity and slight general hyperreflexia was shown. The veteran was able to ambulate well. A slight speech difficulty was shown. It was noted that the veteran had been off of Tegretol for four months. The diagnoses included resolved headache, Parkinson's disease, seizure disorder and hiatal hernia. A December 1994 VA radiology report reflected a diagnostic impression of normal CT scan of the head. Private hospital records dated from February 1995 to March 1995 show that the veteran was admitted after sustaining injuries to both shoulders after a fall from an apparent seizure. The veteran was initially unable to communicate for about 15 to 20 minutes after the episode. It was noted that the veteran had a history of a seizure disorder but was seizure free for 13 years and was thus, taken off of his anti-seizure medications by a VA neurologist in August 1994. A CT scan of the shoulders reflected bilateral comminuted compressed fractures with impaction involving the humeral heads. The veteran underwent left and right shoulder hemiarthroplasties. A February 1995 EEG report was abnormal with findings suggesting a mild to moderate diffuse encephalopathy consistent with post ictal change. A November 1999 neurology clinic record shows that the veteran had no specific complaints. It was noted that his Parkinson's disease was fluctuant with some good days alternating with days of stiffness. His wife described occasional hallucinations. On physical examination, the veteran was bradykinetic. The diagnostic impression was Parkinson's disease, fairly stable with no significant deterioration since last visit. A February 2000 VA neurology record shows that the veteran was stable with deterioration in his Parkinson's disease. It was noted that Reglan was prescribed for his hiatal hernia. Private hospital records dated in March 2000 show that the veteran was seen with complaints of extreme weakness, shaking of the legs and inability to walk. He was admitted with the diagnosis of worsening of Parkinson's disease. Other diagnoses included seizure disorder and status post total bilateral shoulder replacement secondary to fracture. Confusion and delirium due to multifactoral etiology was also shown. During his hospital stay, Reglan was discontinued as well as Ativan and Zyprexa. He was given Haldol on an as needed basis. It was note that the veteran's Parkinson's disease had been getting worse in the past several months to a year. A March 2000 EEG study was abnormal due to a diffuse encephalopathy and a focus of seizure activity situated in the left mid-temporal lobe. A neurology consultation report includes a diagnostic impression of Parkinson's disease with on/off phenomenon aggravated by Reglan. A seizure disorder was also noted. It was recommended that the veteran avoid Reglan. A March 2000 VA medical record shows that the veteran was admitted to a private hospital following a period of inability to move his lower legs. A history of parkinsonism, bilateral shoulder fractures following seizure, confusion, and delirium were noted. A VA medical record of telephone contact dated in April 2000 reflects that the veteran reported developing hallucinations and changes in his mental status after taking Reglan for two days. It was noted that Reglan and trihexyphenidyl were discontinued and veteran began to experience a gradual improvement. It was noted that awareness of drug interaction with anti-dopaminergic action and Parkinsonism medication in the veteran should be noted. An April 2000 VA medical record shows that the veteran reported that after taking the drug, Reglan, he began experiencing weakness of the lower extremities, confusion, and hallucinations. He indicated that he was hospitalized for 13 days and diagnosed as drug interaction with Reglan, Dopamine, and trihexyphenidyl. It was noted that the veteran felt improvement after discontinuing the medications. A May 2000 VA medical record notes the veteran's history of Parkinson's disease. Physical examination revealed moderate weakness and marked rigidity of the four limbs. The veteran could stand and take a few steps with difficulty and limited balance. His cognition appeared to be impaired. The diagnostic impression was severe Parkinsonism with impaired mobility and reduced cognition. A June 2000 VA medical record reflects that the veteran was feeling better and stronger. It was noted that the veteran had no seizure problem for 15 years, except for the single episode in 1995 when his seizure medication was discontinued. He reported no seizures since resuming his medication. A February 2001 VA radiology report notes that X-rays studies of the veteran's shoulders revealed status post shoulder replacement procedures with degenerative changes. In a lay statement dated in April 2001, the veteran's wife said that she felt that her husband should not have been taken off of Tegretol. She stated that after 15 years of being seizure-free, he had a seizure after discontinuing Tegretol for 5 months. She also indicated that that the veteran should not have been prescribed Reglan due to his Parkinson's disease. She stated that she noticed a change in him within days of taking the medication. She related that his symptoms included helplessness, inability to walk and hallucinations. In April 2001, the veteran submitted copies of medical information from the Internet pertaining to the drug metoclopramide, whose brand name is Reglan. The medical information essentially indicated that metoclopramide should not be taken by individuals with epilepsy or another seizure disorder. It was also noted that patients should inform their physicians before taking the medication if they had Parkinson's disease. Side effects of the medication were noted to include severe muscle stiffness or tremors, muscle spasms, and twitching in the face or body. On VA joints examination in October 2001, the veteran reported a history of an injury to both shoulders when it was thought that he suffered a seizure. It was noted that he underwent left and right shoulder hemi-arthroplasties following the injury. The diagnoses included residual fracture, dislocation, right shoulder, status post right shoulder hemiarthroplasty with severe limitation of motion and status post left shoulder hemiarthroplasty for left shoulder fracture, dislocation, with residuals limitation of motion. On VA neurology examination in October 2001, it was noted that medical records, the veteran's claims file were reviewed. A history of seizure disorder and Parkinson's disease were noted. The veteran indicated that his seizures began at age 50; however, the etiology of the seizures was unclear. The veteran's spouse noted that he only had seizures at night, usually consisting of a generalized convulsion, after which he has little recognition of the event. There was no history of warning prior to the seizure. It was noted that the veteran was initially treated with Dilantin as an anti-convulsive and was later switched to Tegretol. Beginning in 1980, the veteran was seizure free for approximately 15 years. Due to the fact that he was seizure free for so long, his Tegretol was discontinued. The veteran had a generalized convulsion in 1995, apparently at night, fell out of a chair and fractured both shoulders. The Tegretol was restarted and the veteran was seizure free since that time. It was also noted that the veteran had been diagnosed with Parkinsonism since August 1994 when his neurologist noted a slow gait. He was started on anti- Parkinson's therapy, including Sinemet. His symptoms included stiffness with difficulty walking. No history of significant shaking was reported. In March 2000, the veteran was admitted to the hospital due to increased difficulty with ambulation. It was noted that his Parkinson's had gotten worse. At that time, the veteran was taking Reglan for gastroenterologic complaints. It was felt that the Reglan was making his symptoms worse and the medicine was discontinued. The veteran's wife reported that his Parkinson's symptoms continued to worsen over the past few years. She noted that his confusion and dementia symptoms were now predominant. Neurological examination noted that the veteran was alert and oriented. His speech was moderately dysarthric with a Parkinsonian speech pattern. No overt dementia was noted on examination. A moderate degree of facial hypominia ws noted. He had moderate axial and neck stiffness and rigidity. He was very severely bradykinetic. Rigidity in the wrists, arms and both lower extremities was noted. Balance testing revealed that he was moderately unstable with eyes closed immediately. The diagnostic impression was seizure disorder, etiology uncertain, stable at present and advanced Parkinson's disease. The examiner indicated that in view of the history of relatively stable seizures for 15 years, it was medically reasonable to discontinue the veteran's Tegretol at that time. The examiner concluded that the seizure event, which resulted in the bilateral shoulder injury, was not reasonably foreseeable, based on medical judgment. The examiner related that the veteran has chronic and severe Parkinson's disease, as documented in his medical records. It was noted that Reglan can aggravate the symptoms of Parkinson's but was not solely responsible for the worsening of the veteran's Parkinson's symptoms which were felt to be due to the natural progression of the disorder. As noted above, in order to be awarded compensation under 38 U.S.C.A. § 1151 (in effect since October 1, 1997), the evidence must demonstrate not only actual causation (that the disability was actually caused by hospital care, medical or surgical treatment, or examination furnished the veteran by VA), but the evidence also must demonstrate that the VA hospital care, medical or surgical treatment, or examination proximately caused the additional disability. Regarding the claim for bilateral shoulder impairment, it is noted that this clearly is additional disability. The record does contain medical evidence that it was appropriate to stop taking the medication. The examiner, however, went on to say that the seizure with the bilateral shoulder injury was not "reasonably foreseeable" based on medical judgment. Based on this opinion, there is a basis for awarding benefits under section 1151. The VA treatment, while not negligent, did produce an outcome that was not reasonably foreseeable. Thus, a basis for a grant under the current law is established for bilateral shoulder impairment. Likewise, there appears to be a basis for granting benefits under section 1151 for aggravation of the Parkinson's disease. The veteran was known by the VA to have Parkinson's disease and a seizure disorder. Information on file is to the effect that the use of Reglan is at least contraindicated, if not forbidden from use in individuals with such impairment. Thus, it would appear to be an error in judgment to have prescribed this medication to this veteran. Further there is evidence that his Parkinson's that had been reasonably stable was aggravated by the use of Reglan. There is medical opinion that the medication caused some aggravation, but that some of it may have been due to natural progress. This does not alter the conclusion that there was some aggravation of the Parkinson's by the use of medication that was contraindicated. ORDER Compensation under 38 U.S.C.A. § 1151 for advancement of Parkinson's' disease as a result of VA treatment is granted. Compensation under 38 U.S.C.A. § 1151 for a bilateral shoulder disability claimed as due to VA treatment of a seizure disorder, is granted. MICHAEL D. LYON Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.