Citation Nr: 0920597 Decision Date: 06/02/09 Archive Date: 06/09/09 DOCKET NO. 05-28 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for Parkinson's disease, claimed as due to medication prescribed by the Department of Veterans Affairs for nonservice- connected paranoid schizophrenia. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Patner, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied compensation under 38 U.S.C.A. § 1151 for Parkinson's disease, claimed as due to medication prescribed by the Department of Veterans Affairs for nonservice-connected paranoid schizophrenia. In January 2008, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's Parkinson's disease was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for Parkinson's disease, claimed as due to medication prescribed by the Department of Veterans Affairs for nonservice- connected paranoid schizophrenia, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.358 (2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, 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 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 2002 & Supp. 2008). To determine whether additional disability exists within the meaning of § 1151, the veteran's condition immediately prior to 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 is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b) (2008). To establish causation, 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 does not establish cause. 38 C.F.R. § 3.361(c) (1) (2008). 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. 38 C.F.R. § 3.361(c)(2) (2008). 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. 38 C.F.R. § 3.361(c)(3) (2008). 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. 38 C.F.R. § 3.361(d) (2008). 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 (see 38 C.F.R. § 3.361(c)) and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that 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. 38 C.F.R. § 3.361(d)(1) (2008). In this case, the Veteran contends that his Parkinson's Disease was caused by the use of Olanzapine (also known as Zyprexa), a medication prescribed by a VA physician to treat his paranoid schizophrenia from December 1998 to February 1999. The Veteran contends that ever since he used Olanzapine, he has experienced tremors and pain, including in his right shoulder and arm, and that such symptoms eventually led to his diagnosis of Parkinson's disease. The first record relating to the Veteran's use of Olanzapine is dated in December 1998. The prescription was refilled twice, in January 1999 and again in February 1999. There are no further records surrounding the use of the medication during this time period. Records dated after February 1999 reflect symptoms leading to the Veteran's diagnosis of Parkinson's disease. In March 1999, the Veteran was hospitalized for a psychiatric disability, to include schizophrenia, at which time he complained of difficulty shrugging his right shoulder. It was noted that he was obsessed with the idea that he had sustained a nerve injury to his right shoulder. Shortly before he was discharged, he reported that his shoulder was feeling better. In November 1999, the Veteran reported to his physician that he had taken Olanzapine for three to six months, but that he had stopped taking it when he left Oregon at the end of 1998 because he had not noticed any positive effect on his mood, and he did not like the side effects of a stiff tongue and stiff neck. He also complained of suffering from right arm problems. After physical examination of the Veteran, the examiner concluded that his right arm complaints seemed subjective in nature and did not correlate with any focal neurologic lesion. He could offer no clear diagnosis. In December 1999, the Veteran complained of stiffness in his neck and right arm that he reported had been present since May 1997, when he had been hospitalized for diverticulitis for six days. He felt that his right arm problems may have been a result of having an IV in his arm for that period of time. He was assessed as having developed a resting tremor of the right arm and cogwheel rigidity, which was consistent with a Parkinsonian syndrome. In January 2000, due to similar complaints and findings, he was diagnosed with possible Parkinson's disease. To that extent, the Board notes that the Veteran had experienced similar manifestations prior to taking Olanzapine. A review of the Veteran's medical records dated from June 1997 to November 1998 reflect, in pertinent part, treatment for a cervical spine injury, which the Veteran incurred previously while wrestling, and upper extremity problems. Beginning in May 1997, the Veteran complained to his physician of hand tremors. In June 1997, he complained of intermittent paresthesis of his hands and accompanying hand weakness. At that time, a neurological examination was negative for any physiological disorder of the nerves. A July 1997 MRI examination revealed that he had degenerative disc disease of the cervical spine. In March 1998, the Veteran complained of numbness in the right hand, and it was thought that he might have sciatica of the right upper extremity. A counseling record that same month showed that the Veteran complained of bilateral tremors of the hands. He stated that he had difficulty moving his fingers, which had been occurring for quite some time. A November 1998 physical therapy record shows that the Veteran had incurred a right shoulder strain. At that time, he complained of impaired coordination of his right hand, and occasional pain in his right shoulder with overhead arm raising. He reported that he had experienced decreased motor control of his right arm ever since he had been hospitalized for diverticulitis in May 1997. In terms of his treatment for Parkinson's disease, the Veteran received treatment from 2000 onward. The record reflects that, as the years progressed, his Parkinson's disease worsened in severity. In May 2003, the Veteran was hospitalized for extrapryamidal symptoms related to medication that he had taken for his schizophrenia, called Abilify. At that point, his dosage was reduced, but he began to exhibit mild tremors and rigidity. Further reports from the hospitalization state that the Veteran's right arm tremors were of unknown etiology, and that the Veteran was apparently able to increase or decrease the tremor at will, by using concentration or while in a "trance," as he described it. At that time, a neurologist assessed that the tremor was not Parkinsonian, but was possibly instead an essential tremor. In June 2003, the Veteran began treatment at a neurology clinic for "tremor-predominant Parkinson's disease," which was thought by his physician to be secondary to Olanzapine. At that time, he was prescribed Benztropine, which had in the past provided him with some relief from tremors. In January 2004, the Veteran was admitted to a psychiatric facility for schizophrenia, at which time his axis III diagnosis was listed as a history of "severe Parkinson reaction from aripiprezole, quetapine, underlying Parkinsonism due to either toxin exposure or head trauma." The record contains similar opinions, offered by treating physicians throughout the years, of the cause of the Veteran's Parkinson's symptoms, some offering positive relations between the Veteran's tremors and rigidity to his previous use of Olanzapine, and others stating that there may be a possible link between the two. In February 2004, the Veteran's medications were adjusted, at which time he was assessed as having an obvious resting tumor, bradykinesia, and rigidity, worse in his right arm. The physician felt it was clear that the Veteran had Parkinson's disease, and stated that it was a moot point as to whether it was drug induced, coincidental, or drug "triggered" with a certain susceptibility. Throughout these records, the Veteran was noted to be incredibly anxious concerning the progression of his Parkinson's disease. A December 2005 psychological record demonstrates that the Veteran was experiencing suicidal ideations secondary to his Parkinson's, with plans to hang himself. A note following this record shows that the Veteran was hypersensitive, or allergic, to all atypical neuroleptics, which includes the drug Olanzapine. More recent treatment records dated up until August 2008 demonstrate continued treatment for Parkinson's disease. In August 2007, these symptoms included tremors which spread to his other extremities, at one point affecting his left upper extremity more than the right. He described sharp, burning pain, and cramping in his neck, shoulders, forearms, thighs, and calves. His joints would stiffen up involuntarily. It was often difficult to walk. On September 2008 VA examination, the Veteran reported that his Parkinson's disease had been progressive since at least the mid-1990's, and he attributed the onset of the disease to Olanzapine, which he had consumed for a period of six weeks. He denied experiencing any symptoms such as tremors or muscle rigidity prior to taking this medication. He reported that when he started taking Olanzapine, he also began experiencing tremors mostly affecting his right upper extremity, and rigidity in his bilateral upper and lower extremities. After discontinuation of the medicine, these symptoms improved for a short period of time, but then became slowly worse. In addition to those symptoms listed above, over time the Veteran began to experience a slowing of his movements, smaller steps when walking, and right upper extremity dystonia. He reported that he was currently taking at least six medications for his Parkinson's disease and psychiatric disorders. On examination, the Veteran showed signs of advanced Parkinson's disease, including prominent bilateral tremors of the upper extremities, decreased fine finger movements, and a stiff gait. After physically examining the Veteran, and reviewing the claims file, including the medical records surrounding the time in which he was prescribed Olanzapine, the examiner concluded that it was at least as likely as not that the Veteran's use of Olanzapine played a role in an earlier manifestation of his Parkinson's disease, including tremors, rigidity, and a slowing of his movements. In concluding that the drug may have contributed to the development of the disease, the examiner explained that Olanzapine and Abilify are known to cause extrapyramidal side effects that mimic Parkinson's disease, and, in some patients, have lead to the development of Parkinson's disease in the aftermath of taking the medication, even for a short period of time. In an addendum dated in October 2008, the examiner determined that the Veteran's Parkinson's disease was not caused by carelessness, negligence, or lack of proper skill by the VA, and could not have been reasonably foreseeable by the VA. In so concluding, the examiner explained that there is no evidence in the medical literature to suggest that Parkinson's disease in chronic form could result from the use of Olanzapine or Abilify. He explained that it is known that Parkinson-like syndromes could be induced by atypical antipsychotic medications, as in this case, but that these symptoms resolve after discontinuation of the medication. In the Veteran's case, his Parkinson's disease has been shown to be persistent and progressive, and is therefore a disease process separate from the use of Olanzapine or Abilify. The examiner felt that, while it was possible that the Veteran was prone to the development of Parkinson's disease and these medications may have unmasked such a manifestation, the progressive development of the disease could not have been reasonably foreseen as an adverse effect of the medication. He additionally pointed out that both of these medications continued to be widely prescribed, and that the development of long-term Parkinson's disease was not a reasonably expected adverse side effect of the use of the medications, as such a correlation has not been made. In this case, the Veteran's current Parkinson's disease has been determined not to be the result of VA error or negligence. The Parkinson-like symptoms that the Veteran may have experienced while taking the medication, as well as the possibility that the medication may have unmasked the beginning manifestations of the Veteran's current Parkinson's disease, were undesirable but foreseeable consequences of taking the medication. Because there is no competent evidence suggesting a causal relationship between VA treatment and the Veteran's current symptomatology, the Board concludes that the Veteran does not have an additional disability that was caused or aggravated by the VA. Similarly, there is no competent evidence that VA otherwise exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. In the absence of any such competent evidence, compensation under 38 U.S.C.A. § 1151 must be denied. The Board has considered the Veteran's contentions that VA was careless and negligent with regard to prescribing Olanzapine. However, as a layperson, the Veteran lacks the requisite medical expertise to offer a medical opinion, without competent substantiation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO issued a VCAA notice letter prior to initially adjudicating the claim, the preferred sequence. Id. Here, VA sent correspondence in April 2003 and January 2008; a rating decision in March 2004; a statement of the case in July 2005, and a supplemental statement of the case in February 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notice provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notice has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the veteran and had satisfied that duty prior to the final adjudication in the March 2009 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional unobtained relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Compensation under 38 U.S.C.A. § 1151 for Parkinson's disease, claimed as due to medication prescribed by the Department of Veterans Affairs for nonservice-connected paranoid schizophrenia, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs