Citation Nr: 1330115 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-38 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for neuroleptic malignant syndrome (NMS), to include as secondary to medications prescribed for service-connected schizophrenia and tardive dyskinesia. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected tardive dyskinesia with photosensitivity due to Artane prescribed for treatment of tardive dyskinesia. 3. Whether the severance of service connection for tardive dyskinesia with photosensitivity due to Artane prescribed for treatment of tardive dyskinesia, effective March 27, 2000, was proper. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to December 1979, and February 1981 to July 1982. The case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the RO. In November 2011, the Veteran testified by way of videoconference technology from the RO at a hearing held before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In February 2013, the Board remanded the case for additional development of the record. The Board notes that, in February 2013, the issue of service connection for light sensitivity of the eyes, to include as secondary to medications prescribed for service-connected schizophrenia and tardive dyskinesia, was also in appellate status. In June 2013, the RO granted service connection for this disability. In an August 2013 letter, the Veteran's representative indicated that the appeal had been satisfied as to this claim. As such, the claim is no longer in appellate status and will not be addressed further. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board has considered documentation included in Virtual VA. As previously noted by the Board, the Veteran stated that he now suffered from medically-induced heart failure in an August 2007 letter. In an April 2010 email message, the Veteran also requested that his claim of service connection for a seizure disorder be reopened. Additionally, in an August 2013 letter, other claims of service connection for urinary retention, constipation and a cognitive impairment, to include as secondary to medications taken for service-connected disability, were raised. As these claims have not been adjudicated by the Agency of Original Jurisdiction, the Board does not have jurisdiction and refers them to the AOJ for appropriate action. The issues of an increased rating for the service-connected tardive dyskinesia with photosensitivity, and the propriety of the severance of service connection for that disability, are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has been shown to have NMS that is related to Risperidone, a medication used to treat his service-connected paranoid schizophrenia. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by NMS is proximately due to or the result of his service-connected paranoid schizophrenia. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In addition, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis for the allowance, as noted below, any further discussion of the amendment is unnecessary. Throughout the appeal, the Veteran has contended that he currently has NMS that is secondary to medications used to treat his service-connected schizophrenia and tardive dyskinesia. In February 2013, the Board remanded the claim and noted that the record contained conflicting information as to whether the Veteran had such a current diagnosis. An earlier VA neurological examination conducted in November 2007 did not yield a diagnosis of NMS. On VA examination in May 2009, the VA examiner specifically determined that the Veteran did not have NMS because he did not have enough of the symptoms required for diagnosis. A review of the record, however, shows that diagnoses of NMS had been rendered on other occasions. For example, in December 2010, the Veteran was noted to have NMS in the "major risk factors/special populations" portion of a VA treatment record. In March 2006, the Veteran was diagnosed with NMS on discharge from a VA emergency room. In March 2000, the Veteran was diagnosed with a history of NMS. In March 1995, the Veteran was diagnosed with NMS during a hospitalization. In February 1995, it was noted that the Veteran had likely suffered from an episode of NMS in an earlier week. The Board noted that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the Board found that the presence of a current disability had been satisfied. However, an opinion regarding the relationship between the Veteran's NMS and the medications used to treat his service-connected tardive dyskinesia and schizophrenia also has not been obtained. The May 2009 VA examiner declined to offer an opinion on etiology in the absence of a current diagnosis. Such an opinion was found necessary in order to fairly adjudicate the claim. In April 2013, a VA examination was conducted. The examiner reviewed the claims file and examined the Veteran. The examiner explained that NMS refers to the combination of hyperthermia, rigidity, and autonomic dysregulation that could occur as a serious complication of the use of antipsychotic drugs. The examiner noted that the low incidence of this syndrome, and the consequent difficulty in studying it in a controlled, prospective manner, made clinical features, predisposing conditions, treatment, and prognosis difficult to define. The examiner discussed that antipsychotics could cause a variety of reactions that could be confused with NMS. For example, neuroleptic-induced acute dystonia was an abnormal contraction or spasm of a group of skeletal muscles, often involving the head or neck. Neuroleptic-induced acute akathisia was motor restlessness, particularly involving the legs. Neuroleptic-induced tardive dyskinesia involved involuntary, rhythmic movements starting with mouth movements. Neuroleptic-induced parkinsonism, or pseudoparkinsonism, presented with the classic triad of tremor, muscular rigidity, and akinesia. The examiner noted that NMS had been reported most frequently in patients taking haloperidol and chlorpromazine. NMS, however, was not a chronic condition and was episodic . Patients who have experienced episodes of NMS previously were at risk for recurrences. In this case, the examiner determined that the Veteran's current neurologic condition was neuroleptic-induced tardive dyskinesia, which involved involuntary, rhythmic movements starting with mouth movements. The examiner determined, however, that the Veteran did suffer from an episode of NMS in 1995 due to the use of Risperidone, the antipsychotic medication being used to treat his paranoid schizophrenia. The examiner explained that this was an episodic event, which resolved. Medications used subsequently for both schizophrenia and tardive dyskinesia had not contributed to the condition. His current symptoms of urinary retention, constipation, and cognitive impairment were noted to be side effects of Artane, the medication presently used to treat his tardive dyskinesia. The Board had referred these issues to the RO. The Board understands from the VA examiner's detailed explanation, that the Veteran's NMS was episodic and resolved in 1995, prior to filing the claim and that symptomatology documented in the record since that time was not felt to be NMS. However, the Board finds it would be prejudicial to the Veteran to deny service connection based on a lack of diagnosis at this point. Indeed, in the June 2013 remand, the Board conceded the presence of a current disability. Further, the April 2013 examiner indicated that NMS was a recurring condition. Moreover, the Board is persuaded by the Veteran's representative's reliance on Romansky v. Shinseki, 26 Vet. App. 289 (2013) in the August 2013 Brief. In Romansky, the Court held, When the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In vacating the underlying Board decision, the Court further found, "McClain did not hold, as the Board mistakenly suggest[ed], that where evidence of a diagnosis falls outside of the claim period, such evidence [could] not establish a current disability as a matter of law." The Veteran's representative had requested that service connection be awarded for NMS, and appropriate staged ratings be assigned. The Board notes there is no evidence to the contrary of the April 2013 VA examiner's opinion on the issue of secondary service connection. The May 2009 VA examination report contains no opinion in this regard. Prior examination reports are similarly devoid of any opinion concerning the etiology of NMS. The April 2013 report is fully adequate for purposes of adjudication. The claims file was extensively reviewed and discussed. All diagnostic testing necessary for assessing the Veteran's disability was conducted, and all subjective and objective symptomatology was described. The medical examiner's findings were factually accurate and fully articulated, and valid medical analyses were applied. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion was based on a review of the claims file and examination of the Veteran, and the examiner explained the bases for the conclusions reached. Moreover, there is no evidence to the contrary that would suggest that the disorder was not related to the medication used to treat the Veteran's schizophrenia. The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for these reasons, the Board concludes that there is at least a reasonable doubt as to whether the Veteran's current NMS is causally or etiologically related to the medication used to treat his service-connected schizophrenia. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection is warranted. ORDER Service connection for neuroleptic malignant syndrome is granted. REMAND In February 2013, the Board remanded the issue of service connection for a disability manifested by light sensitivity of the eyes in order to clarify with the Veteran whether he intended to continue an appeal of the claim. If so, a VA examination was to be afforded. In a June 2013 rating decision, the RO awarded service connection for a disability manifested by light sensitivity to the eyes. In the code sheet, the disability was characterized as "tardive dyskinesia with photosensitivity due to Artane prescribed for treatment of tardive dyskinesia." In the rating decision, the RO assigned a 10 percent rating, effective beginning on April 4, 1994 to March 27, 2000. In August 2013, the Veteran's representative indicated that the RO's June 2013 grant of service connection constituted an award of the benefit sought. The representative stated that the appeal had been satisfied. However, the representative expressed disagreement with the severance of service connection effective on March 27, 2000. In this regard, she stated that the Veteran continued to experience the eye condition and take medication for it. The representative also noted that the Diagnostic Code applied by the RO relates to convulsive tics, and not any eye condition. The Board has construed the argument as disagreement with the rating assigned. As the August 2013 disagreement is dated from within one year of the June 2013 rating decision, a SOC is required. Where an SOC has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these remaining matters are REMANDED to the RO for the following action: The RO should furnish the Veteran a fully responsive SOC with respect to the issues of an initial rating in excess of 10 percent for the service-connected tardive dyskinesia with photosensitivity due to Artane prescribed for treatment of tardive dyskinesia, as well as whether the severance of service connection for the disability, effective March 27, 2000, was proper. The Veteran should be advised of the time period in which a Substantive Appeal must be filed in order to obtain appellate review of this matter. The matter should only be returned to the Board for appellate consideration if the Veteran files a timely Substantive Appeal. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs