Citation Nr: 1124777 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 07-16 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes mellitus secondary to medications prescribed by the Department of Veterans Affairs for schizophrenia. REPRESENTATION Veteran (Appellant) represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from May 1984 to July 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. By that rating action, the RO denied the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes secondary to medications prescribed by the Department of Veterans Affairs for schizophrenia. The Veteran appealed the RO's November 2006 rating action to the Board. In January 2009 and March 2011, the Veteran testified before a Decision Review Officer and the undersigned Veterans Law Judge at the Houston, Texas RO, respectively. Copies of the hearing transcripts have been associated with the claims files. In April 2010, the Board received additional evidence from the Veteran in support of his current appeal along with a waiver of initial RO consideration. 38 C.F.R. § 20.1304 (2010). The appeal is REMANDED to the RO/Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A review of the claims files reflects that additional evidentiary development, as outlined in the directives below, is necessary prior to final appellate review of the 1151 claim on appeal. The Veteran contends that the anti-psychotic medication, Olanzapine, prescribed by VA for treatment for his schizophrenia caused him to develop diabetes mellitus. (See March 2011 Transcript (T.) at page (pg.) 3)). He maintains that VA failed to inform him that one of the side effects of the above-cited anti-psychotic medication was the development of diabetes mellitus. (See January 2009 T. at pg. 2). Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service- connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. 38 C.F.R. § 3.361(d). VA treatment records and prescription lists show that the Veteran was prescribed Olanzapine in the year 2000. In March 2005, VA received from the Veteran internet articles discussing the adverse side effects of Olanzapine, to include, but not limited to, the subsequent development of diabetes mellitus. The Veteran was diagnosed to have new onset diabetes mellitus in early October 2005. (See VA treatment record, dated October 19, 2005). That same report contains a notation that the Veteran was worried that Olanzapine might have increased his blood sugars. Id. In late October 2005, the Veteran was seen for a psychiatry assessment. At that time, he reported having concerns about the older traditional neuroloptics, Olanzapine, Risperidone, and Quetiapine. The examining physician stated the Veteran was "warned of most common side effects" and that he had agreed to read literature provided "on the medication." The examiner noted that the Veteran was given information that included the following: names, doses, how and when to take, desired effects and possible and possible side effects. The Veteran was given verbal instructions. The examiner indicated that "[h]e understood and wanted to take the medication." The Veteran was prescribed the medication, Geodon. (See VA treatment record, dated October 31, 2005). In an August 2006 opinion, a VA physician opined, after a review of the claims files, medical literature and consultations with a VA psychiatrist and endocrinologist, that there was an increased association with the second-generation neuroloptics and the development of weight gain, hyperglycemia and diabetes mellitus. The VA examiner concluded that in the absence of any family history of diabetes mellitus in the Veteran, nor any other explanation for him to have developed diabetes mellitus, it was as likely as not that the medication proscribed by VA providers to treat his psychotic illness was related to his development of diabetes mellitus type 2. Notwithstanding this conclusion, the VA physician did not find VA providers to have been negligent or unskilled or uncaring in prescribing the medications at appropriate dosages and for their indicated purpose. The VA examiner further stated that diabetes mellitus was a well recognized (i.e. foreseeable) and accepted adverse outcome of appropriate treatment and follow-up. (See August 2006 VA examiner's opinion). Notwithstanding the foregoing, the Board finds that the RO has not yet addressed whether VA complied with required informed consent procedures under 38 C.F.R. § 17.32 (2010); specifically, if the Veteran was informed of the known side effects of the medication Olanzapine prescribed by VA prior to him being diagnosed as having diabetes mellitus in 2005. (Parenthetically, the Board observes that prescription information of the medication, Risperdone, is included in the claims file.) The RO should contact the VAMC that prescribed the antipsychotic medication Olanzapine to the Veteran and request that they identify any standard policies or procedures with respect to informing patients of possible side effects of prescription drugs. The RO should also determine if the VA pharmacy provides drug information for prescription drugs filled at the VA. After all development has been completed, the RO should make a determination as to whether VA complied with required informed consent procedures under 38 C.F.R. § 17.32. In addition, the record also indicates that the Veteran participated in a compensated work therapy (CWT) program at the VAMC in Houston, Texas. (See July 2007 VA treatment report). Records of the Veteran's participation in the CWT program are not of record. As they may also be pertinent to the appeal, the RO/AMC should attempt to obtain them. Finally, during the March 2011 hearing, the Veteran testified that he was in receipt of SSA disability benefits for his schizophrenia. (See T. at pg. 3). The Board finds that a remand is necessary to obtain the outstanding SSA records and associate them with the Veteran's claims folders. VA has a duty to obtain SSA records when they may be relevant. See Voerth v. West, 13 Vet. App. 117, 121 (1999); Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, the RO should contact the SSA and obtain and associate with the claims files copies of the Veteran's records regarding SSA benefits, including the complete medical records upon which any decision was based. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(2) (2010). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO should undertake any necessary development to determine whether the Veteran was informed of known side effects of the medication Olanzapine prescribed by VA for his schizophrenia. a.) The RO should contact the VAMC that prescribed the antipsychotic medication Olanzapine to the Veteran, and request that they identify any standard policies or procedures with respect to informing patients of possible side effects of prescription drugs. Any relevant documentation should be associated with the claims files. b.) The RO should determine if the VA pharmacy provides drug information for prescription drugs filled at the VA. A copy of any drug information or drug inserts for Olanzapine that was provided to the Veteran or in the normal course of business would have been prescribed to the Veteran should be associated with the claims files. 2. The RO should obtain the Veteran's records from the CWT program at the VAMC in Houston, Texas. If such records are unavailable, obtain a written response indicating that the records are unavailable. 3. Request that the SSA produce all records associated with the award of any Social Security benefits (Supplemental Security Income or Supplemental Security Disability Income) pertaining to the Veteran, including copies of any and all award letters and all medical records associated with those award letters. If such records are unavailable, obtain a written response from SSA indicating that these records were lost, destroyed, or are otherwise unavailable. 4. After all development has been completed, the RO should readjudicate the 1151 claim on appeal based on the additional evidence and the RO should make a determination as to whether VA complied with required informed consent procedures under 38 C.F.R. § 17.32. If the benefit sought is not granted, the RO should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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). 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. 2010). _________________________________________________ MICHAEL A. PAPPAS 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) (2010).