Citation Nr: 0700277 Decision Date: 01/05/07 Archive Date: 01/17/07 DOCKET NO. 05-02 506 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for cataracts. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for osteoporosis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from September 1956 to August 1960. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2004 RO decision. In May 2006, the veteran testified before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the veteran when further action is required of him. REMAND The veteran asserts that his present cataract condition and osteoporosis are due to VA prescribed medication for asthma. Specifically, the veteran testified in May 2006 that he has been taking VA prescribed Prednisone since the late 1980s or early 1990s and was never properly informed by VA of known side affects, to include cataracts and osteoporosis. He testified that his asthma is presently out of control and he is addicted to the steroid medication. He added that had he known about the problems associated with Prednisone, he would have asked for some other type of medication. For claims received after October 1, 1997 (as in this case), compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are payable for additional disability not the result of the veteran's own willful misconduct, where such disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee, or in a Department facility, where the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); see also VAOPGCPREC 40-97. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. See 38 C.F.R. § 3.361(d)(1),(2). The evidence in this case includes VA examination reports dated in March 2004 and April 2004 that contain the examiners' opinions that the veteran's Prednisone use for asthma is as likely as not related to his osteoporosis and cataract, OS (left eye). However, there is presently insufficient competent evidence as to whether the proximate cause of these disabilities, i.e., the prescribed Prednisone, involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department, or involved an event not reasonably foreseeable. Medical evidence that addresses these missing elements is essential in making an informed decision in this case. Accordingly, addendum opinions must be requested from the 2004 VA examiner's that address the remaining elements necessary to establish compensation under 38 U.S.C.A. § 1151. If and only if such opinions cannot be obtained, the veteran should be afforded new VA examinations to address these questions. Also, the record contains a private medical report from Norman K. Imes, M.D., of Northwest Medical Center in Oklahoma, City, Oklahoma, dated in April 1985 noting that the veteran had severe asthma and had been placed on all standard medications for asthma, to include oral and inhaled corticosteroids. In view of this and a February 1986 VA outpatient record noting that the veteran had an eight year history of adult onset asthma, it appears that there are additional medical records that have not yet been obtained. These records are important in determining when the veteran began taking steroids and who prescribed them. Accordingly, an attempt must be made to obtain all outstanding pertinent private medical records from the late 1970s and 1980s. Accordingly, the case is REMANDED for the following actions: 1. Seek to obtain outstanding records of private treatment for the veteran's asthma from the late 1970s to mid 1980s, to include all treatment that the veteran received at Northwest Medical Center in Oklahoma, City, Oklahoma. 2. The claims file should thereafter be returned to the examiners who conducted the March 2004 orthopedic and April 2004 eye examinations, and request that they indicate, respectively, whether the veteran's osteoporosis and cataracts, OS, were caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in prescribing Prednisone to the veteran. In addressing this question, the examiner should opine whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in prescribing Prednisone to treat the veteran's asthma in the 1980s and in continuing such treatment, or, that the steroids were prescribed without the veteran's consent. In determining events not reasonably foreseeable, the examiner should discuss whether or not osteoporosis and cataracts were considered by a reasonable healthcare provider to be ordinary risks of prescribing Prednisone. If such risks were known, the examiner should discuss whether they are the type of risk that a reasonable health care provider would have disclosed to the veteran. If, and only if, the examiners who conducted the March 2004 and April 2004 examinations are not available, then the RO should schedule the veteran for appropriate VA examinations to obtain the opinions requested above. The claims folder must be made available to the examiners. 3. After completion of the above and any additional development of the evidence that the RO may deem necessary, the RO should readjudicate the claims. If either decision remains adverse to the veteran, provide him and his representative with a supplemental statement of the case and the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, as appropriate. The veteran and his representative have the right to submit additional evidence and argument on the matters the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO should treat the claims expeditiously. Claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ PANAYOTIS LAMBRAKOPOULOS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).