Citation Nr: 1303062 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-34 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes mellitus, claimed as due to medication prescribed by a Department of Veterans Affairs treatment facility. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for amputation of the second toe of the left foot, claimed as due to medication prescribed by a Department of Veterans Affairs treatment facility. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder, claimed as presbyopia due to medication prescribed by a Department of Veterans Affairs treatment facility. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. These matters come before the Board of Veterans' Appeals (BVA or Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. The Board notes that a July 2009 statement of the case (SOC) considered the issues of service connection for diabetes mellitus, amputation of the second toe of the left foot, and an eye disorder on a direct basis. This theory of entitlement was not addressed in the February 2009 rating decision nor has it been presented by the Veteran in his claim, notice of disagreement, substantive, or any other written presentation. Consideration of a direct service connection claim would thereby be unwarranted as it does not appear to be on appeal. If the Veteran wishes to appeal this particular theory of entitlement he is invited to do so and the RO should consider that claim without prejudice. FINDINGS OF FACT 1. The weight of the evidence does not establish diabetes mellitus as a result of any care or treatment by VA, to include medications that were prescribed. 2. The weight of the evidence does not establish an amputation of the second toe of the left foot as a result of any care or treatment by VA, to include medications that were prescribed. 3. The weight of the evidence does not establish an eye disorder as a result of any care or treatment by VA, to include medications that were prescribed. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes mellitus, claimed as due to medication prescribed by a VA treatment facility, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 2. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for amputation of the second toe of the left foot, claimed as due to medication prescribed by a VA treatment facility, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 3. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disorder, claimed as presbyopia due to medication prescribed by a VA treatment facility, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Before addressing the merits of the § 1151 compensation issues decided below, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify under 38 C.F.R. § 3.159(b)(1) has been met by a letter from the RO issued in September 2008 of the criteria for establishing a § 1151 claim, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board acknowledges that the Veteran was not provided with specific Dingess requirements, with respect to his claims, nevertheless as his claims are being denied information regarding a disability rating and effective date is not pertinent. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Relevant to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The RO has obtained VA treatment records. The Veteran also submitted private treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the § 1151 claims that has not been obtained. The Board notes that records in the claims file indicate that the Veteran has been and may currently be in receipt of benefits from the Social Security Administration (SSA). In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. Here, the Veteran himself did not identify any SSA records that would be relevant to his claims. Records also reflect that the Veteran is receiving SSA disability benefits for mental reasons. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to these claims. It is not necessary to Remand for these records. VA also obtained medical opinions in December 2008 and January 2009 to address the § 1151 claims. As detailed below, these examinations and opinions contain findings relevant for the resolution of the issues. These examinations and opinions were based on either (1) a medical evaluation of the Veteran, and an accurate understanding of his medical history, (2) or a review of the medical literature as compared to the Veteran's particular case. No competent medical evidence is of record that specifically refutes these findings, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that these VA examinations and opinions are adequate for resolution of this case. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that when VA provides a veteran with a medical examination for the purpose of compensation benefits, the examination must be adequate.) The Board concludes that all the available records and medical evidence has been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. 1151 In order for the Veteran to be eligible for compensation under 38 U.S.C.A. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to VA treatment by the appropriate standard under 38 U.S.C.A. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran; the claim for compensation under 38 U.S.C.A. § 1151 must be denied. 38 U.S.C.A. § 1151 provides that compensation under Chapters 11 and 13 of 38 U.S.C. 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 the 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 [of VA], 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; or (2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has incurred diabetes mellitus, an amputation of the second toe of the left foot, and an eye disorder, as a result of VA prescribing Thorazine and/or Haldol during a March 1991 VA hospitalization. He says the medications altered his insulin levels that, in turn, caused his diabetes mellitus, which eventually led to the amputation of his second toe of the left foot and eye/visual problems. He therefore contends that he is entitled to compensation under the provisions of 38 U.S.C.A § 1151. VA treatment records confirm that the Veteran was prescribed Thorazine by the VA as early as March 1989. Haldol was prescribed by the VA in January 1991. March 1991 VA treatment records confirm that the Veteran was prescribed both Thorazine and Haldol during a hospitalization. Additionally, January 1999 private treatment records which reflect that the Veteran was prescribed Thorazine by a private entity. Treatment records reflect that following the March 1991 hospitalization, the Veteran has been subsequently diagnosed with diabetes mellitus, has undergone a partial amputation of his left foot and has been diagnosed with eye problems. VA records reflect a diagnosis of diabetes mellitus as early as May 2000. See May 2000 VA examination. However, there are other records that suggest that diabetes mellitus was diagnosed sometime in 1996. A partial left hallux amputation was performed in February 2001, which was described in a May 2000 VA examination as an amputation of the left foot, second toe, due to diabetes mellitus. VA treatment records show that the Veteran has been diagnosed with presbyopia, early cataracts, and dry eye. See January 2009 VA examination. The Board parenthetically notes that VA treatment records dated in September 1989, prior to the March 1991 hospitalization at issue in these claims, reflects complaints by the Veteran of blurry vision and a diagnosis of presbyopia. In December 2008 and January 2009, the Veteran's claims were reviewed by several VA examiners in order to obtain opinions as to whether the prescription of Thorazine or Haldol by the VA had caused the Veteran's diabetes mellitus, subsequent amputation of the second toe of the left foot, and an eye disorder. A December 2008 VA examination opinion considered the Veteran's allegations of diabetes with subsequent amputation of two toes and blurred vision as a result of the medications Thorazine and Haldol being prescribed by the VA during a March 1991 hospitalization. The VA examiner noted that the Veteran had been diagnosed with diabetes mellitus 9 years earlier (1999) and was no longer on medications but controlled his disease with diet. Following review of medical literature, the VA examiner opined that Thorazine or Haldol do not cause diabetes mellitus. In December 2008, the Veteran's claim for a partial left foot amputation due to diabetes mellitus as a result of medications prescribed the VA was considered. The Veteran's claims file, past history, and current medical history were reviewed. Consideration was also given to his lay statements. A physical examination was conducted. The VA examiner noted that the Veteran had undergone a partial first ray resection and subsequent amputation of the second toe due to chronic osteomyelitis and possible cold related injury. He noted that both of these conditions were caused or worsened by the Veteran's diabetic foot. The VA examiner considered the Veteran's claims that his diabetes was caused by Thorazine and/or Haldol prescribed by the VA. The VA examiner stated that both of these medications can have endocrine related side effects which include both hypoglycemia and hyperglycemia. However, he stated that he was not aware of any literature which would support the contention that these medications caused diabetes. While those medications can effect one's glycemic levels, there is no evidence to support a finding of there being a cause and effect relationship between Thorazine and/or Haldol and diabetes mellitus. The VA examiner indicated that from a surgical standpoint the Veteran's care was entirely appropriate and there was no evidence of carelessness, negligence, lack of proper skill, error in judgment or similar instance on the fault of the attending VA personnel at Westside VA. He indicated that he was deferring the opinion concerning the relationship of type II diabetes mellitus and the use of Haldol/Thorazine to internal medicine as this determination was beyond the scope of orthopedic surgery. The Veteran underwent a VA eye examination to address his eye claim in January 2009. The examiner reviewed his medical record and history, and completed a physical eye examination. The Veteran was diagnosed with diabetes without retinopathy, presbyopia, early cataracts and dry eye. The VA examiner opined that it was less likely than not that the Veteran's complaints of blurry vision were the result of medications or treatment given during the Veteran's hospitalization or subsequent. She noted that blurred vision associated with reading is not related to the Veteran's systemic condition of diabetes, but rather his complaints were the result of presbyopia, a natural condition associated with aging. Following a review of the evidence in this case, and the applicable laws and regulations, it is the Board's conclusion that the preponderance of the evidence is against the Veteran's claims for compensation under 38 U.S.C.A. § 1151 for diabetes mellitus, amputation of the second toe of the left foot, and an eye disorder due to medications prescribed by the VA. The administration of Haldol and Thorazine are not shown to have caused the Veteran's diabetes mellitus. Without establishing such a cause and effect relationship (i.e., no proximate cause), there is no need to address the question of whether there was carelessness, negligence, etc. in prescribing of those medications. Similarly, as the Veteran has advanced the argument that the amputation and eye problems are the result of his diabetes mellitus, there is little need to consider whether the eye problems or amputation were due to the medications. However, to the extent that such a theory has been presented, the Board notes that the VA examiners have clearly indicated that the amputation was due, in part to, symptoms of the Veteran's diabetes mellitus, and his eye problems are related to aging. While it is true that the VA examiners did not necessarily address the question of whether Haldol and/or Thorazine somehow rendered the Veteran more susceptible to the amputation, the Board notes that such a theory has not been proposed by the Veteran and there is simply no evidence in record that suggests such. An additional opinion is not necessary. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a Veteran's conclusory statements regarding causation were not sufficient to necessitate a VA examination in the absence of medical evidence, and that medical examinations are not to be routinely and automatically provided to all veterans in disability cases involving nexus issues). Finally, any theory of secondary service connection (e.g., diabetes mellitus caused the amputation or eye problem) is precluded by as compensation under 1151 for diabetes mellitus has been denied. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). The VA opinions noted above support the Board's conclusion. There are no contradicting opinions of record. The Veteran has not presented or identified any medical evidence refuting these VA examiners' unfavorable conclusions. He is certainly competent, even as a layman, to comment on things within the perception of his five senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nonetheless, the Veteran is not competent to opine on questions of causation, negligence, or reasonable forseeability of medical risks peculiar to the prescription of Thorazine or Haldol. These determinations are based upon findings that are medically complex in nature and simply not readily amenable to lay comment. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease that necessarily involved complex medical issues). Indeed, contrary to his assertions, the medical evidence, as highlighted by the examiners, show that there is no relationship between Thorazine and Haldol to the diagnosis of diabetes mellitus and the subsequent amputation on his left foot or eye issues. The Board finds the December 2008 and January 2009 VA opinions to be the most probative evidence as to whether the Veteran suffers from disability related to the prescription of medications by the VA. Thus, under these circumstances, the claims for compensation under the provisions of 38 U.S.C.A. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes mellitus, claimed as due to medication prescribed by a Department of Veterans Affairs treatment facility is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for amputation of the second toe of the left foot, claimed as due to medication prescribed by a Department of Veterans Affairs treatment facility is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for presbyopia, claimed as due to medication prescribed by a Department of Veterans Affairs treatment facility is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs