Citation Nr: 1328225 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 07-34 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for hypertension. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for diabetes mellitus. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to July 1977. The appellant was appointed as the Veteran's fiduciary for the purposes of VA compensation in March 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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 The request for a hearing is deemed withdrawn.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 claim was before the Board in May 2010, where the above issues were reopened and remanded for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he developed hypertension and diabetes as a result of a prescription drug, Zyprexa/Olanzapine, which was prescribed by VA to treat his schizophrenia. In a May 2010 remand, the Board found that a medical opinion was necessary to determine whether the Veteran's hypertension and diabetes mellitus represent additional disability resulting from VA's prescription of Olanzapine. A VA opinion was provided in October 2012 and follow-up opinions were obtained from the same examiner in May and June 2011. The examiner stated that the Veteran does not carry a diagnosis of either diabetes or hypertension and that the claims file doesn't demonstrate any evidence of treatment for hypertension. However, private treatment records, most submitted after the VA examiner's opinions, show current diagnoses and treatment, including with prescription medication, for both disabilities. In addition, it appears that the examiner hasn't seen the evidence the Veteran provided about the litigation surrounding Olanzapine or the settlement reached with the drug manufacture. The drug manufacturer settled a lawsuit where claimants (including the Veteran) alleged that the drug label did not adequately warn about the possible side effects, namely the risk of high blood sugar and diabetes, prior to September 2003. The drug manufacturer said that the medication label had listed those side effects since 1996. That evidence raises the possibility that Olanzapine is known to have a causative relationship with diabetes and/or hypertension. Therefore, the Board finds that a new opinion must be obtained where the examiner reviews the complete claims file and provides the required information. Additionally, the Board notes that the appellant has asserted that informed consent was not properly provided in this case. She stated that she and the Veteran were not made aware of the risks, they may have made a different choice had they known, and the only reason he has not changed drugs is that he already had diabetes and hypertension, which would not go away now even if he stopped the medication. The Veteran has been on that drug since 1998, when he was admitted to the VA hospital with severe psychiatric symptoms. Within a few days of using the drug, he returned to normal behavior. The record includes the information handouts he was given at the time for some of the medications prescribed during that treatment, but not for Olanzapine. He was diagnosed with diabetes and hypertension in April 2003. Of note, his doctors tried to increase his dosage in October 2002. A January 2003 VA treatment note stated that he did not tolerate the increase and so he was going back to the regular dosage. Also, the Veteran was advised that he could change medications in September 2003 given the fact that olanzapine was known to exacerbate diabetes and that he should talk to his psychiatrist about it. However, there is no indication that he did so. There are numerous VA treatment records beginning shortly after the drug was prescribed where the Veteran reported that Olanzapine was the only drug that has worked for him and also stated when asked that he did not want to change drugs. We do not have any of the warnings provided with the medication. Upon remand, the Board requests that the examiner comment on whether informed consent was required in this case, whether the procedures for obtaining informed consent were appropriately followed, and if so, whether such procedures would have included a discussion regarding diabetes and hypertension as possible side effects. Accordingly, the case is REMANDED for the following action: 1. Forward this claims file, along with any relevant evidence in Virtual VA, to a new VA physician to obtain a medical opinion regarding whether the medical probability that the VA's prescription of Zyprexa/Olanzapine for the Veteran's psychiatric disability would have resulted in the Veteran's incurring the disabilities of diabetes mellitus and hypertension. The examiner is required to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diabetes and/or hypertension were 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. The examiner is asked to specifically comment on whether informed consent was required in the prescription of this medication, whether the procedures to obtain informed consent were properly followed, and whether such procedures would have included information regarding diabetes and hypertension as possible side effects. The examiner is also requested to consider and discuss the litigation with the drug manufacturer and the warning labels on the medication itself. The examiner is requested to provide a complete rationale for all opinions provided. 2. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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 2002 & Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).