Citation Nr: 1019030 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 07-34 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for compensation for hypertension. 2. Whether new and material evidence has been received to reopen a claim for compensation for diabetes mellitus. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from September 1975 to July 1977. In March 1989 the appellant was appointed the Veteran's fiduciary for purposes of VA compensation. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the RO in the June 2007 action addressed the claims on the merits, the preliminary question of whether previously denied claims should be reopened is a jurisdictional matter that must first be addressed before the Board may consider the underlying claims on their merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented; thus, the issues are characterized as such on the title page of this decision The appellant had requested a hearing before the Board in Washington, D.C.; however in October 2009 the appellant withdrew that request in writing. The request for a hearing is deemed withdrawn. The Board notes that following the August 2009 certification of this appeal to the Board, the Veteran submitted additional evidence directly to the Board. As that evidence, in the form of a settlement check, pertained to evidence already submitted, the Board finds there is no need to remand the case to the RO purely for initial consideration of that evidence. The issues of entitlement to compensation for hypertension and diabetes mellitus on a de novo basis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A March 2005 rating decision denied service connection for hypertension and diabetes mellitus, and denied entitlement to compensation under 38 U.S.C.A. § 1151 for those disorders; the Veteran did not appeal the March 2005 rating decision. 2. The evidence received since the March 2005 rating decision is not redundant, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claims for compensation for hypertension and diabetes mellitus. CONCLUSIONS OF LAW 1. Evidence added to the record since the final March 2005 rating decision is new and material; thus, the claim of entitlement to compensation for hypertension is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 2. Evidence added to the record since the final March 2005 rating decision is new and material; thus, the claim of entitlement to compensation for diabetes mellitus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, regardless of the manner in which the RO characterized the hypertension and diabetes mellitus issues, the initial question before the Board is whether new and material evidence has been presented. With respect to applications to reopen filed on or after August 29, 2001, as in this case, "new" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that any duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. In a September 2003 statement, the Veteran requested service connection for diabetes and hypertension. He also alleged that those disorders arose from medications prescribed by VA. In a March 2005 rating decision, the RO denied service connection for both hypertension and diabetes mellitus, and also denied entitlement to compensation under 38 U.S.C.A. § 1151 for those disorders. The appellant did not submit a notice of disagreement. As the appellant/Veteran did not timely appeal, that March 2005 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 1151 (West 2002), disability compensation shall be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. In an October 2006 statement, the Veteran submitted a new claim seeking compensation for his hypertension and diabetes mellitus. The evidence before the RO as it issued the March 2005 rating decision was the Veteran's service treatment records, Veteran's statements, dated September 2003, and January 2004; a copy of a September 2003 VA treatment report entry noting the Veteran was prescribed Olanzapine and that that medication was known to exacerbate diabetes mellitus 2; private treatment records (including the diagnosis of diabetes mellitus in April 2003 and hypertension by September 2003) spanning 2003 to 2004; and list of then current VA medications July 2004. The pertinent evidence added to the record since the March 2005 rating decision includes a list of the Veteran's VA provided medications from 1995 to 2004; documents signed by the Veteran pertaining to his participation as a civil plaintiff in a class action lawsuit against the manufacturer of "Zyprexa", also known as Olanzapine; copy of June 2005 article from Internet regarding settlement of class-action lawsuit regarding Zyprexa; copy of February 2006 settlement agreement between manufacturer of Zyprexa and plaintiffs' counsel; copy of November 2004 VA treatment report indicating the Veteran continued to be prescribed Olanzapine; copy of March 2006 signed agreement to settle class action lawsuit; additional copies of signed documents indicating the Veteran's participation in the settlement of the class action lawsuit. The evidence in the VA treatment reports that the Veteran was prescribed Olanzapine by VA medical personnel through to 2004 and the information regarding the filing of the class action law suit against the manufacturer of Olanzapine/Zyprexa was not previously before agency decision makers and is not cumulative or redundant of evidence associated with the claims file at the time of the March 2005 rating decision. As such, it is "new" as contemplated under 38 C.F.R. § 3.156(a). Furthermore, because this evidence suggests that the Veteran may have incurred a disability (diabetes mellitus and hypertension) as a result of the medical treatment of VA medical personnel, it relates to an unestablished fact necessary to substantiate the claim and is found to raise a reasonable possibility of substantiating the claim. For these reasons, the Board finds that the criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the Veteran's claims of entitlement to compensation for hypertension and for diabetes mellitus are reopened. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). In this case, with regard to the claims to reopen the hypertension and diabetes mellitus claims, the Board is granting that benefit. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER New and material evidence having been submitted, the claim for compensation for hypertension is reopened, and the appeal is granted only to that extent. New and material evidence having been submitted, the claim for compensation for diabetes mellitus is reopened, and the appeal is granted only to that extent. REMAND As noted previously, pursuant to 38 U.S.C.A. § 1151 (West 2002), disability compensation shall be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. To determine whether an additional disability was caused by medical treatment, VA compares the Veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the Veteran's informed consent. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonable foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). That is, the standard is to preclude compensation if the evidence does not establish negligence or other fault on the part of VA, or of an event not reasonably foreseeable. Accordingly, the Board finds that a medical opinion is necessary to determine whether the Veteran's hypertension and diabetes mellitus represent additional disability resulting from VA's prescription of Olanzapine. The Board also notes that other than the evidence submitted by the Veteran, there are few scattered VA treatment records in the claims file pertaining to his VA treatment of the diabetes mellitus and hypertension, and it is not documented whether he remains on this medication for his schizophrenia or when the prescription was changed. Any medical treatment records from the North Texas Healthcare system pertaining to the treatment of these disabilities (diabetes mellitus, hypertension, and schizophrenia) from the approximate date of April 2003 should be added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with 38 U.S.C.A. § 5103(a)-compliant notice of what information and evidence must be submitted to substantiate claims for compensation under 38 U.S.C.A. § 1151. 2. Obtain all treatment records and medication lists for the Veteran from the North Texas Healthcare system regarding the Veteran's diabetes mellitus, hypertension, and mental disability, dated from 2000 to the present. 3. Thereafter, forward this claims files to an appropriate examiner for a medical opinion regarding whether the medical probability that the VA's prescription of Zyprexa/Olanzapine for the Veteran's psychiatric disability (undifferentiated schizophrenia) would have resulted in the Veteran's incurring the disabilities of diabetes mellitus and hypertension. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the hypertension and/or diabetes mellitus was the result of: A. carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in prescribing Zyprexa/Olanzapine for the Veteran's psychiatric disability; or B. an event not reasonably foreseeable. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, furnish the appellant an appropriate supplemental statement of the case containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations. The appropriate time period within which to respond should be provided as well. 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). This case 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. 2009). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs