Citation Nr: 1316569 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-40 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for tracheal obstruction requiring tracheostomy. 2. Entitlement to service connection for a psychiatric disorder, claimed as depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to January 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO). The rating decision denied the claim for benefits under 38 U.S.C.A. § 1151 for tracheal obstruction requiring tracheostomy, and also found that new and material evidence was not received to reopen the claim for service connection for adjustment reaction to adult life with passive aggressive personality traits. The Veteran currently claims that he has depression due to the tracheostomy for which he currently claims 38 U.S.C.A. § 1151 compensation. This claim constitutes a different claim from his previous claim for service connection for a mental disorder, which was characterized in an April 1999 rating decision as a claim for service connection for adjustment reaction to adult life with passive-aggressive personality traits, claimed as stress. As the current claim is said to arise from a clearly distinct factual basis, which has not been previously considered, the depression claim will be considered as a separate and distinct claim from his prior claim for service connection for adjustment reaction. No new and material evidence is, therefore, necessary. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases). Moreover, the Veteran has been diagnosed with various psychiatric disorders, including dysthymic disorder, adjustment disorder with depression, and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in construing a claim, VA must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id., at 5. Accordingly, the Board has recharacterized the issue on appeal to encompass the Veteran's entire psychiatric claim. The Veteran testified before the Board sitting at the RO in February 2012. A transcript of the hearing is associated with the claims file. The record before the Board also consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran's claim for compensation under 38 U.S.C.A. § 1151 arises from an emergency tracheostomy performed in 2008. In October 2008, the Veteran presented to the emergency department at the Central Arkansas Healthcare System (HCS) with sudden onset facial swelling, worsening tongue swelling and difficulty breathing. He was diagnosed as having acute angioedema with unstable airway and underwent an emergent tracheostomy. Clinical notes three days following the operation show that the angioedema was "most likely due to Lisinopril." The question in this case is whether VA's ongoing prescription of Lisinopril to the Veteran, despite his noted angioedema, was careless, negligent, a lack of proper skill, an error in judgment, or another similar instance on the part of the VA, which caused the additional disability of tracheal obstruction requiring tracheostomy. Several years prior to the tracheostomy, in January 2005, the Veteran sought emergency treatment due to itching for three days and swollen lips. He was prescribed Benadryl at that time. He returned two weeks later and in February 2005 was deemed to have symptoms consistent with angioedema, at which time an EpiPen was prescribed. Later records show that the Veteran had an ongoing active prescription for Lisinopril, 20 mg twice per day, as of February 2008. In March 2008, he sought treatment due to throbbing headache when his blood pressure was elevated, as well as a chest wall rash, but no swelling or difficulty breathing. He requested at that time a new EpiPen for his angioedema. The physician also increased his dosage of Lisinopril at that time to 40 mg. Seven months later the emergency incident requiring tracheostomy occurred. The Veteran contends that VA was negligent in its prescription of Lisinopril due to his documented angioedema. Thus, the Veteran's contends that the tracheostomy is an additional disability he has endured due to VA's negligent care. His claim under 38 U.S.C.A. § 1151 is for additional disabilities arising from VA care received in relation to his hypertension medication. An additional disability is a qualifying disability if it was not the result of the Veteran's willful misconduct, the disability was caused by VA 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 carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a) (West 2002). In July 2009, the Veteran underwent VA examination. The examiner reported the Veteran's history as including prescription of Lisinopril in 2005, as well as the severe episode of angioedema in 2008 requiring tracheostomy. The examiner reported that the increase in Lisinopril was due to difficulty controlling hypertension. The current diagnosis was noted to be angioedema and tracheal obstruction requiring tracheostomy. The examiner went on to note that angioedema can be precipitated by use of ace inhibitors such as lisinopril, and that ace inhibitor treatment is probably contraindicated for treatment of hypertension patients with known angioedema. Thus, the examiner opined that the Veteran's disability was made worse by the use of ace inhibitor therapy. However, the examiner went on to suggest that this was a medical decision based upon the need for blood pressure control and did not result from carelessness, negligence or lack of skill on the part of VA personnel. The event, however, was noted to have been reasonably foreseeable in view of the known propensity of ace inhibitors to cause angioedema. The VA examiner, however, did not completely report the Veteran's history as it pertained to angioedema. The examiner failed to note the January 2005 emergency treatment for itching and swelling lips, followed by a February 2005 notation of symptoms of angioedema. Rather, the examiner simply noted that the Veteran was prescribed Lisinopril in 2005. Moreover, the examiner failed to notice that despite the clear notations in the record that the Veteran had, at the very least, symptoms of angioedema, a VA physician in 2008 increased the dosage of Lisinopril, after which only months passed before the emergency tracheostomy was required due to severe angioedema. The Board finds the July 2009 VA examiner's opinion to be inadequate in that it was clearly not based upon all of the pertinent evidence in the record. Several pertinent facts were eliminated from the analysis. Thus, while the Board sincerely regrets any delay imposed, a remand is required for a supplemental medical opinion. Treatment Records VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Bell v. Derwinski, 2 Vet. App. 611 (1992). The most recent VA treatment records in the claims file are dated in August 2011 from the Central Arkansas VA Healthcare System (HCS). The Veteran's Virtual VA file contains a one page document showing that the Veteran was hospitalized at the Little Rock, Arkansas, VA Medical Center (VAMC) from July 24, 2012, to July 25, 2012, related to his tracheostomy, although no clinical records related to that hospitalization are associated with the file. Accordingly, the RO should request VA medical records pertaining to the Veteran that are dated from August 2011 to the present, to include any records related to his hospitalization in July 2012. Service Connection for a Psychiatric Disorder The Veteran claims to experience depression due to the tracheostomy, which is the subject of his 38 U.S.C.A. § 1151 claim, discussed above. A July 2009 VA examiner indicated that the Veteran's depression may have existed for many years, but that it worsened as a result of the incident resulting in tracheostomy. The Veteran' psychiatric disorder claim, therefore, depends on the outcome of the 38 U.S.C.A. § 1151 claim. Thus, it is inextricably intertwined with the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for tracheal obstruction requiring tracheostomy, as it is a derivative claim. In other words, the disposition of the psychiatric disorder claim is largely dependent on whether the Veteran is deemed entitled to compensation under 38 U.S.C.A. § 1151 for tracheal obstruction requiring tracheostomy and cannot properly be adjudicated until the disposition of the 38 U.S.C.A. § 1151 claim is established. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (if matter on appeal is inextricably intertwined with an issue or claim still pending before VA, for reasons of judicial economy or on prudential grounds, review of merits of the claim or issue adjudicated will generally be deferred for further adjudication, as appropriate). See also Gurley v. Nicholson, 20 Vet. App. 573, 575-76 (2007) (recognizing the validity of remands based on judicial economy when issues are inextricably intertwined). Therefore, consideration of the issue of entitlement to service connection for a psychiatric disorder must be deferred pending the adjudication of the claim for compensation under 38 U.S.C.A. § 1151 for tracheal obstruction requiring tracheostomy. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request records of VA inpatient and outpatient treatment since August 2011, including any hospitalization in July 2012, and associate any records received with the claims file. 2. Provide the claims file to the VA examiner that completed the July 2009 examination and opinion related to the Veteran's 38 U.S.C.A. § 1151 claim. If that examiner is unavailable, provide the Veteran's claims file to another qualified VA examiner. Request that the physician review the file including the records of treatment for the Veteran's hypertension since its initial diagnosis in 1995. Request that the physician provide an opinion to a reasonable degree of medical certainty regarding each of the following: a. When was the Veteran initially prescribed Lisinopril to treat hypertension? b. Was the Veteran's tracheal obstruction resulting in emergency tracheostomy an additional disability that was the result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or was it an event not reasonably foreseeable? When answering, the examiner is asked to specifically consider each of the following factual matters pertinent to this case: * The 2005 notation of symptoms of angioedema in the Veteran; * The early 2008 notation of symptoms of angioedema in the Veteran; * The ongoing prescription of an ace inhibitor such as Lisinopril in a patient with angioedema; and * The increase in dosage of Lisinopril in a patient with angioedema. A complete rationale is required. If an opinion cannot be provided without resort to speculation, the physician must provide reasons such as insufficient evidence of record, inadequate state of medical knowledge, or inadequate level of knowledge and experience by the examiner. 3. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim for compensation under the provisions of 38 U.S.C.A. § 1151 for tracheal obstruction requiring tracheostomy. After adjudicating the 38 U.S.C.A. § 1151 claim, the RO should readjudicate the claim of entitlement to service connection for a psychiatric disorder, claimed as due to the tracheostomy. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the appellant with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2012).