Citation Nr: 1200050	
Decision Date: 01/03/12    Archive Date: 01/13/12

DOCKET NO.  09-36 263	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to compensation under 38 U.S.C. § 1151 for dystonia.


REPRESENTATION

Appellant represented by:	Nevada Office of Veterans' Services


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, and S. C.


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to August 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In July 2010, the Veteran, his wife, and S. C. testified during a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record. 


FINDING OF FACT

The Veteran sustained the additional disability of dystonia as a direct result of negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment. 


CONCLUSION OF LAW

The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for dystonia have been met.  38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to compensation under 38 U.S.C. § 1151 for dystonia, which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary.

Where a veteran has an additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected.  38 U.S.C.A. § 1151.

For claims filed on or after October 1, 1997, as in this case where the § 1151 claim was received by VA in June 2008, the claimant must show that VA examination or treatment resulted in additional disability or death and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable.  38 U.S.C.A. § 1151; see VAOPGCPREC 40-97, 63 Fed. Reg. 31263 (1998).

By changes effectuated as of September 2, 2004, 38 C.F.R. § 3.358 was rendered applicable only to claims received by VA prior to October 1, 1997.  See 69 Fed. Reg. 46433 (2004).  The provisions of 38 C.F.R. § 3.361 were promulgated for review of claims received on and after October 1, 1997.  Id. 

Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of 38 C.F.R. § 3.361(c), (d) (2011).  The proximate cause of disability is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.  38 C.F.R. § 3.361(d) (2011).

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 (as explained in § 3.361(c)), 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.  38 C.F.R. § 3.361(d)(1) (2011).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

In this case, as reflected in a September 2008 private treatment record, the Veteran has a current diagnosis of dystonia involving the cervical musculature in bilateral upper extremities.  As reflected in his June 2008 claim and testimony during his July 2010 Board hearing, the Veteran asserts that he received VA treatment for early Alzheimer's and was given antipsychotic drugs.  He further asserted that he was misdiagnosed, as he actually had Lewy Body dementia, and that the medications he was prescribed were contraindicated for his actual diagnosis, and caused him to develop dystonia.  Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's claim for compensation under 38 U.S.C. § 1151 for dystonia must be granted. 

During the July 2010 Board hearing, the Veteran's licensed home care giver, S. C., testified that she specialized in geriatrics, specific dementia, and Alzheimer's issues, and that she notified the Veteran's wife about concerns that the Veteran may have been misdiagnosed by VA providers as having Alzheimer's.  She also testified that the Veteran had been given antipsychotic drugs that were commonly used in Alzheimer's patients but contraindicated for Lewy Body dementia, and that she believed that VA had been negligent in not providing initial tests, especially magnetic resonance imaging (MRI) and examination by a neurologist, when he was first thought by VA providers to have had Alzheimer's.  S. C. testified that, subsequent to receiving VA treatment and medication, the Veteran sought treatment from a private neurologist, who performed an MRI and diagnosed Lewy Body type dementia.  

In September 2011, a private neurologist reviewed the claims file and provided an independent medical examination (IME) report regarding the development of the Veteran's dystonia.  The examiner noted the following history:

The Veteran was initially evaluated by a VA psychiatrist on May 26, 2006, and had been referred by his primary care physician for evaluation of cognitive deficits.  The Veteran had had difficulty sleeping and was taking Valium for this problem, his only other medication was omeprazole, and his wife reported that he had suffered from cognitive decline with confusion and forgetfulness for several years.  A minimental examination demonstrated a score of 10 out of 30, and a diagnosis of Alzheimer's dementia was made along with mild depression.  The Veteran was subsequently started on quetiapine, but this caused an increase in hallucinations, and risperidone was begun, which was helpful to this problem; donepezil was also started for dementia.  The Veteran received VA treatment on June 9, 2006, for increased hallucinations, and the VA physician's diagnosis was Alzheimer's with psychotic features.  The Veteran was then seen by a nurse practitioner on June 16, 2006, who concurred with the diagnosis of Alzheimer's, and was seen by a VA physician again on August 29, 2005, for increased depression, at which time it was noted that the hallucinations had improved on risperidone, and at which time Remeron was started.  The same VA physician saw the Veteran again on October 18, 2006, and his medications were unchanged aside from discontinuation of the trazodone and an increase in the risperidone started in the interim, and the diagnosis remained dementia of the Alzheimer's type.  It was noted that Memantine had also been started between the August and October visits.  

A private medical note from Dr. Venkatesh, dated on February 14, 2007, indicated that the Veteran was evaluated for muscle loss and weakness, and it was noted in his history that he had progressive gait difficulties and could not stand or walk.  Dr. Venkatesh confirmed that the Veteran had a history of dementia, and noted significant weight loss and that medications included risperidone, Seroquel, Aricept, Namenda, Nexium, diclopidine, mirtazapine, Restoril, and Lortab.  On neurological examination, the Veteran's neck had spasticity and was bent to the left.  He had neck torticollis to the left, stiffness of the upper extremities, and wasting of the intrinsic hand muscles.  He had increased tone in the legs with dementia or amyotrophic lateral sclerosis.  Another private neurologist, Dr. Bernick, saw the Veteran on March 9, 2007, and noted that Haldol had been started, and the neurological examination was similar to the February examination.  Dr. Bernick concluded that the Veteran's progressive dementia was secondary to Lewy Body disease, a non-Alzheimer's cause of dementia, and he stated that the Veteran's stiffness and contractures could be related to the use of antipsychotic medications.  Dr. Bernick subsequently treated the neck torticollis with Botox injections, and the Veteran's functional status improved.  

The September 2011 IME examiner concluded that the VA personnel that evaluated the Veteran between May and October of 2006 deviated from the standard of care for evaluating and diagnosing a patient with dementia, because the examiner could find no confirmation that a neurological examination had been performed by the physicians who saw the Veteran, and they did not refer him to a neurologist.  The IME examiner explained that if a complete neurological examination had been performed, the findings suggestive of Lewy Body disease may have been seen, and that it was therefore at least as likely as not that the VA personnel deviated from the accepted standards of care and exercised erroneous judgment in the care of the Veteran.  The standard of care for diagnosing Lewy Body disease in 2006, according to the IME examiner, required the performance of a neurological examination, and not just the psychiatric assessment and minimental examination performed by VA personnel, and the Veteran developed dystonia as manifested by his neck torticollis and spasticity/contractures of his extremities most likely as a consequence of his exposure to the antipsychotic medication initiated by the VA personnel.  The IME examiner further explained that it is well known that Lewy Body disease patients are very sensitive to these medications and at risk for developing complications as experienced by the Veteran, and that, since no neurological examinations were performed, there was no knowing if they were present while he was being cared for by the VA personnel.  The examiner therefore concluded that it was at least as likely as not that the prescribing of the antipsychotic medications contributed to the development of dystonia and spasticity/contractures experienced by the Veteran, as documented in the notes from Dr. Venkatesh and Dr. Bernick, which caused substantial disability with some improvement with subsequent treatments.

The Board finds that the September 2011 IME report and conclusions therein are persuasive.  The medical history noted by the IME examiner, including those regarding the Veteran's complaints and resulting VA treatment from May to October 2006, to include the tests and evaluations that were and were not provided to the Veteran, and the diagnoses rendered and medications given to him, are consistent with VA medical records dated from May 2006 to October 2006.  Also, the IME examiner's description of the subsequent evaluation, diagnoses, and treatment by the private physicians Dr. Venkatesh and Dr. Bernick is consistent with the private treatment notes of record. 

Furthermore, the medical opinions expressed by the IME examiner are competent given his medical expertise as a neurologist, and are supported by a fully explained and persuasive rationale, based on medical principles.  Moreover, the September 2011 IME examiner's opinion is consistent with the testimony given by the Veteran's care giver, S. C., during the July 2010 Board hearing, and there is no contrary, competent opinion of record.

Thus, the record reflects that VA medical treatment from May to October 2006, including treatment with antipsychotic medication, resulted in the Veteran's current dystonia.  Moreover, it reflects that such treatment was based on a diagnosis of Alzheimer's, and that, given the Veteran's complaints and symptoms, such diagnosis and treatment without prior neurological examination or MRI was a failure to exercise the degree of care that would be expected of a reasonable health care provider.  Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's additional disability of dystonia directly resulted from negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment.  Thus, the criteria for compensation under 38 U.S.C. § 1151 for dystonia are met.



ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for dystonia is granted.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs