Citation Nr: 1043045 Decision Date: 11/16/10 Archive Date: 11/24/10 DOCKET NO. 08-38 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for tardive dyskinesia. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1974 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied compensation under 38 U.S.C.A. § 1151 for tardive dyskinesia. The Veteran testified at a Board hearing at the RO in July 2010 before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran contends, in essence, that he suffered additional disability of tardive dyskinesia that was caused by the continued use of risperdone in treatment of his psychiatric disability. Under the provisions of 38 U.S.C.A. § 1151, disability compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A "qualifying additional disability" is one that is not the result of a veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination furnished by VA, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a) (West 2002). To establish causation for a claim under 38 U.S.C.A. § 1151, the evidence must show that the medical treatment provided by VA resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment, and that a veteran has an additional disability, does not establish cause. 38 C.F.R. § 3.361(c)(1). A March 2006 VA Neurology consult conveniently summarizes the progression of the Veteran's tardive dyskinesia. At that time, the Veteran's wife reported that the involuntary movements of the face and tongue as well as tremulousness of both hands had been present for almost 20 years or more. She reported that the Veteran's tremors of the hands were intermittent and did not interfere with his activities until recently. The VA examiner noted that the Veteran was on risperdone for at least four to five years. Hospital records showed that he was on risperdone 1 mg twice a day during his follow-up in the psychiatric clinic. Then in September 2005 the Veteran was transferred from an outside hospital where the dose was increased to 1 mg three times per day by the outside hospital. The Veteran's wife reported an increase in the tremor of both hands following this hospitalization to the extent that the Veteran was spilling drinks and had trouble feeding himself. The Veteran also had a long history of restlessness which also worsened after the September 2005 admission. The Veteran was re-admitted to the VA hospital with these complaints in February 2006. The Veteran was taken off lithium, depakote, and risperdone and was put on anticholinergics. The Veteran was noticed to be significantly drowsy, was difficult to wake, and was therefore transferred to the emergency room and given flumazenil to reverse the benzodiazepine effect. The Veteran immediately woke up and became alert. Upon physical examination during the March 2006 VA neurology consult, the Veteran showed no sign of akathisia. The examiner noted significant orolingual dyskinesias including some jaw movements. He also reported tremors of both hands at rest and outstretched hands without any pill-rolling quality. The examiner concluded that the Veteran's tardive akathisia-like symptoms following the increase in risperdone appeared to have improved over the prior month after being taken off risperdone. Despite the discontinuation of the Depakote and risperdone in February 2006, there was no significant change in the Veteran's hand tremors or rigidity. Clinically, the Veteran's extrapyramidal dysfunction seemed to be a combination of tardive dyskinesia and Parkinsonism, which are both related to medications. A May 2006 VA record showed extrapyramidal symptoms most likely from risperdal, resolved. The examiner noted his intent to decrease cogentin and discontinue ativan as the Veteran was no longer experiencing symptoms. The examiner also diagnosed the Veteran with tardive dyskinesia that was pronounced since discontinuation of. The Veteran requested seroquel and was informed that the drug could cause extrapyramidal symptoms again and could exacerbate the tardive dyskinesia in the long run. The Veteran gave his informed consent. A June 2006 VA psychiatric record noted extrapyramidal symptoms secondary to risperdal. An October 2006 and a February 2007 VA psychiatric report diagnosed the Veteran with extrapyramidal symptoms secondary to risperdal resolved, arthritis, tardive dyskinesia, and tremor secondary to lithium. A January 2008 VA mental health outpatient note shows complaints of mouth movements and tremors. The Veteran asserted that the risperdal provided to him while in the hospital and the subsequent inability to wake him led to his mouth movements and shakes. The examiner reminded the Veteran that tremors often come from lithium, but the Veteran claims that the tremors were worse since the incident. He insisted that a risperdal overdose had caused the symptoms. The examiner reviewed the discharge summary relating to the incident and noted that the doctor in charge had been tapering risperdal because of the Veteran's complaints of restlessness, stiffness, and tremor. Instead, the doctor started the Veteran on clonazepam for tardive akathisia upon decreasing the risperdal. The Veteran became overly sedated, which had to be reversed. The examiner noted fairly constant buccolingual movements and a fine resting tremor. He also noted the Veteran's unyielding belief that he had been overdosed on and questioned whether this belief rose to a delusional (fixed false belief) level. The Board notes that the Veteran's tardive dyskinesia has been related to medication use. The Veteran also claims that his mouth movements and shakes have increased since his use of risperdal. Although the extrapyramidal symptoms secondary to risperdal were listed as resolved, the Veteran's tardive dyskinesia was not listed as resolved. Additionally, the record lacks any indication as to whether VA originally prescribed the risperdal before it was increased in September 2005 at the private institution. As the record does not show whether VA originally prescribed risperdal and whether the Veteran's tardive dyskinesia was permanently aggravated by risperdal, the Board finds that further development is necessary before a final decision is made. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran list all psychiatric health care providers since his separation from service in 1975. The request should include VA treatment, private treatment, hospitalizations, and outpatient treatment. 2. The RO/AMC should take appropriate action to obtain and associate with the file all VA psychiatric and VA hospitalization and treatment records, including any records from VA contracted health care service, dating from separation from service in 1975 to the present time. 3. If any records obtained reflect that VA prescribed risperdal (or risperdone) prior to September 2005, then the Veteran should be afforded a VA examination to determine whether his current tardive dyskinesia has permanently increased in severity since the use of risperdal began. If so, the VA examiner should address the following: a.) Whether the increase in disability of tardive dyskinesia causally or etiologically attributed to VA's prescription of Risperdal, or whether tardive dyskinesia caused by a private doctor's prescription of risperdal. The examiner should also discuss lithium use as a possible cause of the tardive dyskinesia and any subsequent permanent aggravation of the tardive dyskinesia. b.) Whether the additional disability of tardive dyskinesia was due to carelessness, negligence, lack of proper skill, or error in judgment. The VA examiner should specifically discuss the oversedation of clonazepam in January 2008. Additionally, the VA examiner should opine as to whether VA is at fault for not discontinuing risperdal, that is, whether risperdal by VA was given for too long, including after Parkinsonism symptoms appeared. c.) Whether the additional disability was a reasonably expected result or complication of VA care or treatment. d.) Whether the Veteran's tardive dyskinesia was due to an unforeseen event, such as the oversedation of clonazepam in January 2008. 3. After completion of the above and any other development, the RO/AMC should deem necessary, the RO should review the expanded record and determine if the Veteran is entitled to compensation under 38 U.S.C.A. § 1151 for tardive dyskinesia. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). 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 Supp. 2009). _________________________________________________ J. Parker Acting 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) (2009).