Citation Nr: 1332037 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-38 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for tardive dyskinesia, for accrued benefits purposes. 2. Entitlement to service connection on a secondary basis for tardive dyskinesia for accrued benefits purposes. REPRESENTATION Appellant represented by: Robert Gillikin, attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran had active service from January 1974 to January 1975. He died in July 2012. The appellant is the Veteran's widow. She filed a September 2012 motion to be substituted on the Veteran's appeal. That motion to substitute as the appellant in this case is granted. 38 U.S.C.A. § 5121A (West Supp. 2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. The Veteran relocated during the pendency of this appeal, and jurisdiction of his claim was transferred to the RO in Roanoke, Virginia. In July 2010, the Veteran testified at a Board hearing before a Veterans Law Judge seated in Roanoke, VA. A transcript of this hearing has been associated with the claims folder. This claim was previously remanded by the Board in November 2010. The agency of original jurisdiction (AOJ) was requested to obtain additional VA and private treatment records, as well as a VA medical opinion. Additional VA treatment records were added to the claims file in January 2011 and July 2012. In a February 2011 statement, the Veteran indicated he had no additional private medical records to present to VA. Finally, in March 2012, a VA examination with medical opinion was obtained. Thus, the required development has been completed, and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Tardive dyskinesia and other neurological symptomatology are known side effects of Risperdal use and tardive dyskinesia developed as a result of Risperdal use. 2. Risperdal was prescribed by VA medical care providers as part of treatment for depressive reaction, manic type, a service-connected disability. 3. The prescription and administration of Risperdal by VA did not constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care to the Veteran. 4. There was no lack of informed consent or occurrence of an event not reasonably foreseeable in the provision of medical care, to include the prescription and administration of Risperdal, to the Veteran by VA. CONCLUSIONS OF LAW 1. The criteria for compensation for accrued benefits purposes under the provisions of 38 U.S.C.A. § 1151 for tardive dyskinesia, claimed to have been caused by medication prescribed and administered by VA, have not been met. 38 U.S.C.A. §§ 1151, 5121A (West 2002 & Supp. 2013); 38 C.F.R. § 3.361 (2012). 2. Resolving reasonable doubt in favor of the appellant, the criteria for the award of service connection for accrued benefits purposes on a secondary basis for tardive dyskinesia are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. With respect to the claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In October 2007 and February 2011 letters, the appellant was notified of the information and evidence needed to substantiate and complete the claim on appeal. While the appellant was not provided with the general criteria for the assignment of an effective date and initial rating, this lack of notice is not considered prejudicial given the result of this appeal. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, initial VCAA notice was provided the appellant prior to the rating determination on appeal, and therefore no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the appellant has substituted for the Veteran in this claim, she is charged with all notice provided to him. Additionally, during the July 2010 hearing, the Veterans Law Judge asked questions to help direct the Veteran's testimony to the claimed inadequate VA medical treatment, and asked the Veteran if there were any additional medical records or other pertinent evidence. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, private treatment records, various lay statements, and Board hearing testimony. Finally, a VA medical examination with opinion was obtained in March 2012. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the issue on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the appellant has not suggested the existence of, any additional pertinent evidence not yet received. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the appellant. Compensation under 38 U.S.C.A. § 1151 At the time of his death, the Veteran had a pending claim for compensation pursuant to 38 U.S.C.A. § 1151 for tardive dyskinesia, claimed as caused by medication prescribed by VA for his service-connected depressive reaction, manic type. The law provides that compensation may be paid for a qualifying additional disability or death not the result of the veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the veteran when 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable. 38 U.S.C.A. § 1151. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability or death. See 38 C.F.R. § 3.361(c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (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 establish the proximate cause of an additional disability or death, it must be shown that there was 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. Whether the proximate cause of a veteran's additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). In the present case, the Veteran's contention while pursuing the claim was that his use of medication prescribed by VA, including Risperdal (also referred by its generic name of risperidone), clonazepam, and/or lithium, resulted in the development of tardive dyskinesia. He alleged that VA put him on risperidone for four or more years, beyond the recommended usage period for this medication, resulting in tremors and other neurological symptoms diagnosed as tardive dyskinesia. He also contended that VA overmedicated him in early 2006, resulting in a February 2006 episode of unconsciousness requiring emergency intervention and allegedly resulting in permanent neurological impairment. Review of the claims file confirms that the Veteran was started by a VA physician on Risperdal in July 2002. He was also noted to be taking other medications, including lithium. His Risperdal use was closely and periodically monitored by his VA health care providers, and his psychomotor activity was described as normal by examiners, according to VA clinical records. Risperdal was discontinued in January 2004, but was restarted in August of that same year. Upon hospitalization at a state facility in September 2005 for a manic episode, his Risperdal dosage was increased by doctors at the state facility. On follow-up treatment at a VA medical center in October 2005, the Veteran had tremors, so the dosage of lithium was decreased. This reduction resulted in a decrease in his tremors, according to the clinical notations. Moreover, both March and May 2006 VA neurological consultations confirmed that the Veteran's tardive dyskinesia was related to his various medications, including Risperdal. A June 2006 VA psychiatric record noted extrapyramidal symptoms secondary to Risperdal. October 2006 and February 2007 VA psychiatric reports diagnosed the Veteran with extrapyramidal symptoms secondary to Risperdal resolved, arthritis, tardive dyskinesia, and tremor secondary to lithium. This etiological nexus was also confirmed on VA examination in March 2012, as the examiner diagnosed drug-induced tardive dyskinesia of the mouth and tongue. The establishment of this nexus does not warrant a grant of the 38 U.S.C. § 1151 claim. Such a grant requires either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, or that such side effects were not recently foreseeable. See 38 U.S.C.A. § 1151. According to the March 2012 VA medical opinion, tardive dyskinesia is a known side effect for Risperdal use, and tremors are a known side effect of lithium use. The clinical records indicate the known side effects of Risperdal use were made known to the Veteran in July 2002, when Risperdal was initiated; thus, informed consent was obtained by VA. The March 2012 examiner, a VA staff physician, stated that appropriate clinical guidelines specify neurological evaluations every six months with Risperdal use to monitor side effects, and this was accomplished by VA. Those initial evaluations indicated normal psychomotor activity. Thus, the initial prescription and continuance of Risperdal is not evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. Additionally, the eventual development of tardive dyskinesia was not an event which was not reasonable foreseeable, according to the VA physician. The Veteran also asserts that when his Risperdal dosage was increased in 2005, first by a private physician and then by VA, this increase resulted in over-medication with residual side effects, including aggravation of the tardive dyskinesia. The March 2012 VA physician found this dosage increase to be reasonable, given that the Veteran was experiencing a manic exacerbation of his bipolar disorder in 2005. The physician also noted that Risperdal was discontinued in 2006 due to the ongoing tardive dyskinesia. Thus, the increased dosage of Risperdal is not evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. Additionally, the eventual development of tardive dyskinesia was not an event which was not reasonable foreseeable because the potential side effects of this medication were known, according to the VA physician. The March 2012 VA physician noted in her review that balancing various medications to both control acute mania and minimize side effects in a "complicated psychiatric patient" such as the Veteran "can be clinically challenging"; nevertheless, VA care providers "took every reasonable step, including the request for expert consultations from neurology." Thus, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA was not demonstrated. The Veteran also asserted that the Risperdal and other medications provided by VA to him while in the hospital in February 2006 resulted in a coma-like episode with permanent exacerbations of his mouth movements and shakes. According to VA records, the Veteran could not be roused on one occasion during the February 2006 hospitalization, and required additional medication to counter the sedative effects of his existing medications. The March 2012 VA physician stated, however, that the record reflected "no adverse effects" following this episode. He became conscious and responsive with treatment, and a resuscitation code was not called to rouse him. He was discharged from the hospital approximately eight days later. While symptoms of tardive dyskinesia continued, these were, as noted above, known side effects of Risperdal use. Overall, the Board finds that the weight of the evidence of record demonstrates that tardive dyskinesia was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment between 2002 and the Veteran's death in 2012. Tardive dyskinesia is a known and foreseeable risk associated with Risperdal usage, and this fact was conveyed to the Veteran when this medication was initiated in 2002. The medical evidence of record does not suggest that the Risperdal use administered and monitored by VA amounted to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in providing treatment. In addition, the Board finds that there was no absence of informed consent or the occurrence of an event not reasonably foreseeable for the Veteran's disability claimed herein under the provisions of 38 U.S.C.A. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(1)(ii),(2). There is no contention that the prescription of Risperdal by VA was nonconsensual. Instead, the July 2002 treatment note reported that the Veteran fully comprehended and freely consented to the use of this medication. The risks of the use of this medication, to include tremors and other symptomatology were specifically revealed and consented to by the Veteran, and therefore, were not unforeseen. Thus, the development of tardive dyskinesia was a reasonably foreseeable event and informed consent was obtained. See 38 C.F.R. § 3.361(d)(2). Secondary Service Connection for Tardive Dyskinesia Nevertheless, while the Board finds compensation benefits under 38 U.S.C. § 1151 are not warranted, the competent evidence of record establishes that tardive dyskinesia is due to or the result of the use of medication to treat depressive reaction, manic type, a service-connected disability. Although neither the appellant nor the representative in the present case has raised the claim of service connection on a secondary basis, the Board concludes such a claim is raised by the evidence of record. VA is bound to consider all pertinent theories of compensation, whether or not a theory is raised by a claimant. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence in the present case, to include the March 2012 VA opinion, establishes that tardive dyskinesia was due to or the result of medication prescribed for a service-connected disability. Thus, pursuant to 38 C.F.R. § 3.310, service connection on a secondary basis for tardive dyskinesia is warranted. Such a claim was raised by a reasonable reading of the record, as the Veteran contended on multiple occasions that his tardive dyskinesia was the result of medication used to treat a service-connected disorder, depressive reaction. At the least, a secondary service connection claim was thus raised implicitly by the Veteran during the pendency of this appeal. The Board further concludes that, while the RO has not explicitly considered service connection pursuant to 38 C.F.R. § 3.310, no prejudice results to the appellant by the Board's current action, as a grant of service connection for tardive dyskinesia is awarded herein. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Compensation benefits for accrued benefits purposes under the provisions of 38 U.S.C.A. § 1151 for tardive dyskinesia are denied. Service connection for tardive dyskinesia, for accrued benefits purposes, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs