Citation Nr: 0910102 Decision Date: 03/18/09 Archive Date: 03/26/09 DOCKET NO. 97-12 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for diabetes mellitus as caused by VA medical treatment. REPRESENTATION Appellant represented by: Sid Hughes, Attorney WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from September 1969 to April 1971 and from October 1974 to April 1976. This appeal arises from a June 2007 rating decision of the VARO which denied compensation under 38 U.S.C.A. § 1151 for diabetes mellitus. The issues concerning service connection for post traumatic stress disorder, a low back disorder, and an increased rating for pes planus are addressed in a separate document since the veteran's representation as to those issues is a service organization. The Board remanded the claims in July 2008 to afford the Veteran a hearing before a Veteran's Law Judge at the RO. FINDING OF FACT The Veteran's diabetes mellitus, Type II, was diagnosed prior to the date Zyprexa was prescribed for treatment of his psychiatric symptoms at a VA facility. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for diabetes mellitus have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete, or substantially complete, application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; in accordance with 38 C.F.R. § 3.159(b)(1). See Sanders v. Nicholson, 487 F. 3d. 881 (Fed. Cir. 2007). The notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the veteran was sent a correspondence which satisfied VA's notice requirements. With respect to VA's duty to assist, the Board notes that the available records from the sources identified by the veteran, and for which he authorized VA to request, have been associated with the claims folder. 38 U.S.C.A. § 5103A. In addition, the veteran was examined for VA purposes in connection with his claim and subject appropriate opinions obtained. The Veteran has been afforded two hearings before Veterans Law Judges. III. Compensation Under 38 U.S.C.A. § 1151 for Diabetes Mellitus, II Relevant Laws and Regulations. Compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran 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 or qualifying death if the disability or death was not the result of the veteran's willful misconduct and: (1) the disability or death 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 as defined in section 1701(3)(A) of this title, and 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.A. § 1151 (West 2002). Applicable regulations provide that 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, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of §17.32 of this chapter. 38 C.F.R. § 3.361 (2008). Factual Background and Analysis. The evidence clearly demonstrates the Veteran was treated at a VA facility for psychiatric symptoms. The Veteran contends that he developed diabetes mellitus, Type II, as a result of taking Zyprexa, generic name Olanzapine, to treat his psychiatric disorder. In support of his claim he has submitted medical literature that indicates development of diabetes mellitus can be a side effect of taking Olanzapine. He also asserts that his participation in a class action settlement agreement offered to those who had taken Olanzapine and have diabetes mellitus(DMII), type II, demonstrates he developed DMII because VA care providers prescribed Olanzapine treatment. The regulations provide that to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the medical treatment with that subsequent to VA treatment. Not only has the Board reviewed the medical records, VA requested that a physician review the record to determine when the Veteran's diabetes mellitus was first diagnosed, and to obtain a medical opinion as to whether treatment with Olanzapine caused the Veteran to develop DMII. There is no question the medical literature has established a causal connection between Olanzapine and the development of DMII. The question is whether the Veteran's DMII was caused by his VA prescribed Olanzapine. The chronology of events is the most probative evidence in this case. The pertinent facts are the onset date of the Veteran's DMII and the date of commencement of treatment with Olanzapine. There is no question that Olanzapine was first prescribed for the Veteran by VA in December 1997. The dispute in this case is whether the Veteran's diabetes mellitus had its onset prior to December 1997 or after December 1997. In this regard, September 25, 1996 VA podiatry clinic notes addressing the veteran's foot pain complaints reflect the presence of diabetes. "Diabetic (Insulin)" is written on the report. Likewise, an initial evaluation report from the VA Foot Preservation/Shoe Modification Clinic dated December 11, 1996, includes an entry to reflect the duration of diabetes, and it shows the veteran was characterized as "NEW ONSET." Two VA examiners reviewed the claims folder to determine when diabetes mellitus had its onset. The VA examiner in June 2007, stated it first had its onset in 1995, and therefore the Veteran's DMII was not caused by Zyprexa. In October 2006 a VA examiner stated that the Veteran's diabetes mellitus had its onset in 2000, and there was a 50/50 percent change it had been caused by Zyprexa. The June 2007 opinion is based on a notation of history dating diagnosis of DMII to 1995 in a 2004 VA record. The October 2006 VA opinion is clearly erroneous as there is evidence of treatment for diabetes mellitus long before 2000. December 1998 VA records also note treatment for DMII. The Board has placed the greatest weight on the contemporaneous medical records dated in September 1996 and December 1996 that indicate the Veteran was diabetic. That history is also recorded in the VA Problem list as diabetes mellitus dating from September 25, 1996. That is more than one year prior to the first VA treatment of the Veteran with Zyprexa documented in the medical record in December 1997. The contemporaneous record is of greater weight than the Veteran's testimony. As is noted above the Veteran's memory and recall of events is questionable. The Veteran's statements regarding his "stories about Vietnam" raise grave questions as to his credibility. As to the medical literature and settlement of the class action suit against the drug company who produced Zyprexa, that appears irrelevant as the presence of diabetes was documented prior to the Veteran's use of this drug. The Board notes the Veteran submitted a statement in January 2007 "amending his claim for a compensable evaluation for diabetes mellitus" as a result of prolonged use of Seroquel, prescribe by VA. The Veteran did not submit any evidence to support this contention. There is nothing in the claims folder that indicates any relationship between the Veteran's DMII and Seroquel. As the chronological record demonstrates the onset of DMII prior to the administration of Zyprexa (Olanzapine), the evidence does not indicate the Veteran developed DMII as a result of his VA treatment. As no additional disability has been linked to VA's treatment of the Veteran with Zyprexa, compensation under 38 U.S.C.A. § 1151 may not be provided. The preponderance of the evidence is against the claim for compensation for DMII, under 38 U.S.C.A. § 1151. ORDER Compensation under 38 U.S.C.A. § 1151 for diabetes mellitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs