Citation Nr: 0003403	
Decision Date: 02/10/00    Archive Date: 02/15/00

DOCKET NO.  98-11 938A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri



THE ISSUE

Entitlement to compensation in accordance with 38 U.S.C.A. 
§ 1151 for tardive dyskinesia as additional disability 
incurred secondary to medical treatment (medication) by the 
Department of Veterans Affairs (VA).



REPRESENTATION

Appellant represented by:	Missouri Veterans Commission



ATTORNEY FOR THE BOARD

J. Johnston, Counsel



INTRODUCTION

The veteran had active military service from January 1957 to 
December 1958.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 1997 rating decision 
issued by the VA Medical and Regional Office Center in 
Wichita, Kansas.  In September 1998, the veteran requested 
that his claims folder and the appeal be transferred to the 
VA Regional Office (RO) in St. Louis, Missouri.

This case was last before the Board in December 1998.  At 
that time, the Board found that the veteran's claim for 
service connection for the residuals of a head injury was not 
well grounded.  The veteran was so informed and did not 
appeal.  Also, the Board remanded the veteran's claim for VA 
disability compensation under the provisions of 38 U.S.C.A. 
§ 1151 for a medical opinion.  That medical opinion was 
provided by a VA physician in October 1999.  The RO issued a 
supplemental statement of the case which confirmed and 
continued it's previous denials of VA compensation for 
tardive dyskinesia in December 1999.  The case has been 
returned to the Board for appellate review.  


FINDINGS OF FACT

1.  The veteran's claim for compensation for additional 
disability resulting from VA medical care is well grounded 
and all relevant evidence necessary for an equitable 
disposition of the appeal has been requested or obtained.  

2.  Tardive dyskinesia is competently shown to result from 
medical treatment (psychotropic medication) provided the 
veteran by VA, and while competent evidence reveals that this 
disorder often occurs secondary to such medication, it cannot 
be said that tardive dyskinesia is the intended or certain or 
near certain result of such medication.  


CONCLUSION OF LAW

The criteria for the award of VA compensation for tardive 
dyskinesia in accordance with 38 U.S.C.A. § 1151, have been 
met.  38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. 
§§ 3.358, 3.800; Brown v. Gardner, 115 S.CT. 552 (1994).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran's claim for VA compensation under 38 U.S.C.A. 
§ 1151 is well grounded within the meaning of 38 U.S.C.A. 
§ 5107(a) in that it is plausible.  All of the facts have 
been properly developed and no further assistance is 
necessary to comply with the duty to assist required by law.  
Id.

Law and Regulation:   The Board provided an adequate 
recitation of the applicable laws and regulations and Court 
decisions governing the adjudication of claims for VA 
compensation in accordance with 38 U.S.C.A. § 1151 in its 
previous December 1998 decision.  It need not be fully 
restated here.  Nonetheless, it must be pointed out that in 
Brown v. Gardner, 115 S. CT. 552 (1994), the U.S. Supreme 
Court held that VA's interpretation of 38 U.S.C.A. § 1151 as 
encompassing only additional disability resulting from VA 
negligence or from accidents during treatment was unduly 
narrow.  The Supreme Court found that the statutory language 
of 38 U.S.C.A. § 1151 simply required a causal connection 
between VA hospitalization or treatment and additional 
disability and that there was no need for any identification 
of "fault" on the part of VA.  The Supreme Court further 
found that the then-implementing regulation of 38 C.F.R. 
§ 3.358(c)(3) (1991) was not consistent with the plain 
language of the statute with respect to the regulations 
inclusion of a folder accident requirement.  

However, the Court further held that not every "additional 
disability" was compensable.  It was noted that there should 
be no doubt that Section 1151 would exclude coverage for a 
disease's or injury's natural progression, occurring after 
the date of treatment.  In March 1995, amended VA regulations 
were published to conform with the Supreme Court's decision 
including amendments to remove any "fault" requirement.  
Under the amended regulation, compensation was precluded 
where a disability: (1) was not causally related to VA 
hospitalization or medical or surgical treatment, or; (2) was 
merely coincidental with VA medical care, or; (3) was found 
to be simply the continuance or natural progress of the 
disease or injury for which VA medical care was provided, or; 
(4) was the certain or near certain result of VA medical 
care.  That is, where a causal connection existed, and there 
was no willful misconduct, and the additional disability did 
not fall into one of the above listed exceptions, the 
additional disability would then be compensated as if service 
connected.  

The veteran in this case filed his claim in January 1997.  
Effective in October 1997, 38 U.S.C.A. § 1151 was amended by 
Congress in effect to overrule the Supreme Court's decision 
in the Gardner case and to reintroduce the concept of fault 
or negligence in the award of VA compensation in accordance 
with Section 1151 claims.  The details of these amendments 
need not be covered here.  Where a law or regulation changes 
after a claim has been filed or reopened, but before the 
judicial process has been concluded, the version most 
favorable to the appellant applies unless Congress provided 
otherwise or permitted the Secretary to do otherwise and the 
Secretary did so.  Karnas v. Derwinski, 1 Vet. App. 308 
(1991).  As pointed out by the Board in its earlier 
December 1998 decision, the pre-October 1997 amendment state 
of the law is clearly more favorable to the veteran in this 
case since there is no requirement for negligence or fault to 
receive VA compensation.  

Analysis:  In accordance with the Board's December 1998 
remand action, the veteran's claims folder was referred to an 
appropriate VA physician for the production of an opinion 
regarding the veteran's claim.  That opinion noted that the 
veteran had a long history of psychiatric problems with 
multiple diagnoses including alcoholism, alcohol dependence 
and dementia secondary to alcoholism.  Tardive dyskinesia had 
also been diagnosed.  He noted that the veteran had 
essentially been in and out of institutions for approximately 
the past 20 years.  His most significant diagnosis during 
this period was alcoholism and this was the main reason for 
his treatment.  It was well documented that the veteran was 
treated for combative assaultive behavior.  Considering this 
behavior, it was apparent that he was prescribed neuroleptic 
medications, particularly Haldol, with some consistency and 
with high dosage which was a common medication choice for 
patients of this behavior type.  However, a known side effect 
of this and this type of medication was tardive dyskinesia, 
an involuntary movement of the body including the tongue and 
mouth.  It was well documented that attempts had been made to 
alter, reduce or eliminate these medications to reduce or 
eliminate the veteran's tardive dyskinesia.  Most recently, 
the veteran had been taking a drug, Olanzapine, which 
appeared to have a beneficial effect and, as of January 1999, 
some involuntary oral facial movements of tardive dyskinesia 
were shown, but "much less than what had been previously" 
reported.  There were also reports of the veteran having 
difficulty walking but, in this physicians opinion, walking 
or gait difficulties were not associated with tardive 
dyskinesia but rather with the history of trauma to the left 
knee as well as a history of peripheral neuropathy and 
dementia with likely cerebellar affects of alcoholism as the 
principal causes of such abnormal gait. 

In conclusion, this physician wrote that it was his opinion 
that the veteran did have some tardive dyskinesia which was 
as likely as not caused from various prescriptions of 
neuroleptic medications over the years.  He found that there 
was certainly no showing of negligence in the prescription of 
these medicines as they were used to properly treat the 
veteran's behavior.  This physician also concluded that the 
veteran's difficulty with mobility and abnormal gait was not 
secondary to neuroleptic medications and thus not part of 
tardive dyskinesia but rather were due to previous trauma and 
alcohol abuse.

The Board finds that this medical opinion satisfies what was 
requested in its previous December 1998 remand.  Based upon 
this opinion, the Board finds that a preponderance of the 
evidence is in favor of the veteran's Section 1151 claim for 
the effects of tardive dyskinesia secondary to VA medical 
care or treatment, namely, the provision of psychiatric 
medicines over a period of years. The Board finds a direct 
causal connection between the provision by VA of psychiatric 
medicines and the onset of tardive dyskinesia.  The Board 
finds that tardive dyskinesia is not a natural progression of 
the veteran's psychiatric disorders.  Finally, the Board 
finds that tardive dyskinesia is not the intended or 
necessary or certain or near certain consequence of the 
provision of psychiatric medication. Accordingly, the Board 
finds that the veteran does have additional disability, 
namely tardive dyskinesia, manifested by involuntary oral 
facial movements, directly as a result of the provision of 
medication by VA to treat his various psychiatric disorders.  

However, the "additional disability" contemplated in this 
allowance is only found to most recently consist of certain 
involuntary movements of the veteran's body including the 
tongue and mouth.  Consistent with and based upon the 
October 1999 physician's opinion, the Board finds that the 
veteran's ability to walk or affected gait is not 
attributable to VA medication and is not part and parcel of 
or a symptom of tardive dyskinesia itself.  Rather, the 
veteran's abnormal gait and ability to walk clearly appears 
to be impaired as a result of history of trauma to the left 
knee as well as a history of peripheral neuropathy and 
dementia secondary to cerebellar affects of alcoholism, which 
is itself misconduct.



ORDER

Compensation under 38 U.S.C.A. § 1151 for tardive dyskinesia, 
manifested by involuntary oral facial movements, secondary to 
VA medical treatment (medication) is granted.  



		
	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals