Citation Nr: 1523697 Decision Date: 06/04/15 Archive Date: 06/16/15 DOCKET NO. 12-14 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, or for compensation under 38 U.S.C.A. § 1151 for diabetes mellitus caused by medication prescribed by the Department of Veterans Affairs. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as secondary to diabetes mellitus, type II. 5. Entitlement to service connection for peripheral neuropathy, right lower extremity, to include as secondary to diabetes mellitus, type II. 6. Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Gregory D. Keenum, Attorney ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran requested a hearing before a member of the Board. However, in December 2014 he postponed his scheduled hearing, and in April 2015 he cancelled his rescheduled hearing entirely. See December 2014 and April 2015 Statements. His hearing request has been withdrawn. 38 C.F.R. § 20.704 (2014). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of the appeal should take into consideration the existence of the electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to afford the Veteran a new VA examination, as the March 2010 examination did not address the initial question of whether the Veteran's diabetes mellitus is the result of his VA psychiatric treatment, especially his prescription for Risperidone. As the Veteran contends his peripheral neuropathy in all four extremities and erectile dysfunction are secondary to his diabetes mellitus, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). It is appropriate to defer consideration of the other claims pending adjudication of the diabetes mellitus claim. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and secure any relevant private treatment records (PMRs) that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 2. Obtain outstanding VA medical records (VAMRs) from April 2015 onwards and associate them with the claims file. 3. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who provided the March 2010 opinion for an addendum opinion as to whether the Veteran's diabetes mellitus, type II had its onset in service or otherwise relates to service, or whether it is due to his VA treatment. If the examiner is not available, request an opinion from another qualified VA examiner. The entire claims file, to include a copy of this REMAND, must be made available to the VA examiner, who must note its review. a. The examiner must opine as to whether the Veteran's current diabetes mellitus, type II relates to his military service. b. IF the examiner determines the diabetes mellitus DOES NOT relate to the Veteran's military service, the examiner must opine as to whether the Veteran incurred additional disability, including diabetes mellitus, as a result of VA psychiatric treatment, in particular due to prescription Risperidone. c. IF additional disability was sustained, the examiner must provide an opinion as to whether the proximate cause of any such disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or (b) an event not reasonably foreseeable. In determining whether any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA, the examiner should specifically consider whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. d. In making the above determination, the examiner must discuss the standard of care involved in treating the Veteran's service-connected unspecified depressive disorder with unspecified anxiety disorder. The examiner must specifically consider and address whether any of the Veteran's treating VA providers failed to exercise the degree of care that would be expected of a reasonable health care provider. e. In determining whether any additional disability was an event not reasonably foreseeable, the VA examiner should consider whether it was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is 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. f. The examiner must address the Veteran's assertion that he was not notified of the risks of Risperidone, and his and his wife's assertion that his doctor associated his diabetes mellitus with the Risperidone. g. The examiner has an independent responsibility to review the entire record for pertinent evidence. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the examiner's attention is called to: July 2003 VA Medical Records (VAMRs), noting the Veteran was told he may be developing diabetes. February 2006 VAMRs, starting that the risks, benefits, and side effects of a Risperidone trial were discussed with the Veteran. April 2006 VAMRs, indicating that the Veteran and his wife believed the Risperidone was helping, that they discussed the potential for diabetes with the doctor, and they continued to believe the risk was worth the benefit. April 2007 VAMRs, noting that a staff physician spoke with the Veteran's wife and advised her of an urgent need to get the Veteran's elevated blood sugar addressed; notation that a decrease in Risperidone or discontinuation needs to be considered, but also noting the given marked benefit of it. April 2007 VAMRs, indicating that the staff physician believed the Veteran and his wife were aware of the potential role of Risperidone in diabetes and that the Veteran was trying to cut his dose in half. April 2007 VAMRs, noting that the Veteran was seen in the emergency room for markedly elevated glucose, and was diagnosed with new onset diabetes; noted risk factors were poor diet and atypical antipsychotic. March 2010 VA Examination Report. February 2011 Decision Review Officer Hearing Transcript, where the Veteran contends his VA psychiatrist did not warn him of the side effects of the Risperidone, and that she said the medication gave him diabetes and she should have warned him of that possibility. 4. Then, review the medical examination report to ensure that it adequately responds to the above instructions. If the report is deficient in any regard, return the case to the VA examiner for further review and discussion. 5. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issue of entitlement to service connection for diabetes mellitus, type II, or for compensation under 38 U.S.C.A. § 1151 for diabetes mellitus caused by medication prescribed by the Department of Veterans Affairs, as well as the intertwined claims for service connection for erectile dysfunction and peripheral neuropathy in all four extremities. If the benefits sought are not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 2014). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).