Citation Nr: 1444214 Decision Date: 10/03/14 Archive Date: 10/10/14 DOCKET NO. 10-44 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for hand tremors, claimed as due to VA medical treatment. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from October 1963 to September 1964 and from May to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In March 2013 and April 2014, the Board remanded this case for additional development. The case is now before the Board for final appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran's use of VA-prescribed Reglan resulted in additional disability. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for hand tremors, claimed as due to VA medical treatment, have not been met. 38 U.S.C.A. § 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a December 2009 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, and the transcript of an April 2012 video conference hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The Board's prior remands found that VA examinations conducted in this case were inadequate. As a result, another VA examination was conducted in May 2014. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2014 VA report is adequate, as it reflects a review of the Veteran's eFolders, considers all of the pertinent evidence of record and the statements of the Veteran, and provides rationales for the opinions offered. Thus, there is adequate medical evidence of record to make a determination in this claim, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Under the applicable VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner if such disability or death was service connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The law requires not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2013). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2013). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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(c)(2) (2013). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; 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 or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2013). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2013). The Veteran asserts that that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 for additional disability, manifested by hand tremors, incurred as a result of his use of Reglan (metoclopramide). VA prescribed this medicine from approximately November 2004 to June 2009 for a non-service-connected stomach condition. During the hearing, the Veteran testified that his VA doctor told him and his wife that he should have taken the Veteran off the medicine when he know it was doing more harm than good. Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim. The evidence of record does not show that it is at least as likely as not that the Veteran's use of Reglan resulted in the additional disability of hand tremors. The record contains VA and private treatment records. VA treatment records reflect use of VA-prescribed Reglan from approximately November 2004 to June 2009. A June 2009 private treatment record indicates that the Veteran had gastroparesis, which had been treated with metoclopramide, but that had resulted in side effects of tardive dyskinesia. The private physician advised the Veteran to not take metoclopramide any longer, and noted that "hopefully, this is still reversible, but with long term use it has been noted to be more permanent damage and more permanent tardive dyskinesia." A July 2009 private treatment record notes that the Veteran was doing better, but still was complaining of tremors, which appeared to be a reaction from the metoclopramide. Another July 2009 private treatment report provides an assessment of tremors, probably related to use of Reglan and/or Parkinson's disease. A different July 2009 private treatment record relates that certainly Reglan must be considered as the "possible cause" of the Veteran's tremor. However, the physician noted that she felt that other causes such as MS, brain tumor, alcohol and Parkinson's must be ruled out before this assumption could be made. An October 2010 treatment record of a neurological consultation provided by a private physician provides an impression of essential tremor. The physician noted that Reglan can cause Parkinsonism, including tremor at rest, muscle rigidity or bradykinesia. She noted that she did not see the Veteran when he was on Reglan, and he had been off of it since May 2009. Current neurological examination revealed no Parkinsonian findings except for very mild tremor at rest on the left hand. There was, however, evidence of action and postural tremor in both hands. She explained to the Veteran that his current tremor was typical for essential tremor. A November 2010 private treatment record provides that the Veteran's tremor persisted after his VA doctor stopped Reglan. Because the tremor had persisted and worsened, there was concern that this might be secondary to persistent tardive dyskinesia. The report notes that a consulting neurologist at this office had felt that the Veteran's tremor was most likely an essential or familial tremor. A December 2010 record detailing a "Specialty (Neurology) evaluation provides that the Veteran's tremor began after starting Metoclopramide, and he was on this medication for a prolonged period of time. However, the tremor persisted since discontinuing the medication and if anything had gotten worse recently. The private physician stated that she felt that there was a component of essential tremor as the Veteran had a very mild family history and his physical examination findings and lack of improvement after stopping Metoclopramide would suggest this. Also, the Veteran had subtle Parkinsonism. The physician specifically noted that she had reviewed records from the Veteran's primary care physician and VA. A May 2014 VA examination report sets forth a medical opinion in a secondary service connection template. However, a review of the report clearly reveals that it addresses whether the Veteran's hand tremors are related to VA treatment. The report itself notes that the question to be answered was whether it was at least as likely as not (50 percent probability) [that the Veteran's hand tremors were] causally related to or permanently aggravated by the Veteran's use of Reglan (metoclopramide) as prescribed by VA from approximately November 2004 to June 2009. The rationale for the opinion, discussed below, explains why there was no relationship between the Veteran's hand tremors and his use of Reglan. Thus, the rationale makes it clear that the examiner answered the correct question. The examiner stated that the condition claimed was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition (sic). The examiner explained that according to the December 2010 neurologist note, the Veteran's tremor persisted and even worsened after discontinuation of Reglan. She noted that this would not be the case if Reglan had been the etiology of the tremor, or had aggravated it. She stated that the [October] 2009 neurologist also did not view Reglan as cause of the tremor. The examiner acknowledged that a June 2009 private GI/Internal Medicine note identified permanent tardive dyskinesia as a possible result of long-term Reglan use. However, she pointed out that the Veteran's tremor had not been diagnosed as tardive dyskinesia. An August 2014 private medical opinion from C.N.B., M.D., who represented himself as a Neuro Radiologist, provides that the Veteran was on Reglan for many months and thus was given a large cumulative amount. Large cumulative doses were known to cause irreversible dyskinesia movements. The private physician also noted that it was meaningless that the Veteran had not been given a diagnosis of tardive dyskinesia since the Veteran developed dyskinetic movements after starting Reglan, and Reglan was known to cause dyskinetic movements. The private physician noted that no other physician with his credentials had made a controverting opinion. The private physician cited a text from the National Institutes of Health (NIH) that tardive dyskinesia may develop in patients treated with Metoclopramide. Both the risk of developing the syndrome and the likelihood that it would become irreversible increase with the duration of treatment and the total cumulative dose. The Board finds that the May 2014 VA medical opinion constitutes highly probative evidence against the Veteran's claim. The examiner based her opinions on the Veteran's current physical findings and past medical history (which included a review of both VA and private medical records), to which she referred in detail. She explained her opinions by using her own expertise and referring to medical principles. These facts are particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board also finds that the October 2010, November 2010, December 2010 and May 2014 negative medical opinions outweigh the earlier positive private medical opinions. The latter opinions benefit from being based on later examinations of the Veteran, which documented that his tremor had worsened after discontinuation of Reglan. The Board recognizes that the August 2014 opinion cites a medical text that tremors caused by Metoclopramide may persist after discontinuation of Metoclopramide. However, the opinion cites no evidence that tremors caused by Metoclopramide worsen after discontinuation of Metoclopramide. The NIH text provides only that the risk of developing the syndrome and the likelihood that it would become irreversible increase with the duration of treatment and the total cumulative dose. It does not state that tremors increase in severity after the medication is discontinued. Thus, the Board fids that the August 2014 private medical assertion lacks probative value. See Bloom, supra; see Prejean, supra; see Elkins, supra. The Board also recognizes that the August 2014 private physician's assertion that no other physician with his credentials had made an opinion controverting his own that the Metoclopramide caused the Veteran's tremor. The Board finds Dr. B.'s credentials impressive, but in the absence of clear evidence to the contrary, VA medical examiners are presumed competent. Sickels v. Shinseki, 643 F.3d 1362 (Fed.Cir.2011). See also Cox v. Nicholson, 20 Vet.App. 563 (2007) ("[T]he Board is entitled to assume the competence of a VA examiner ... who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." (internal quotation marks omitted)). In addition, the private opinions include those offered following specific neurological examinations and include a review of private and VA treatment records. Thus, the Board disagrees that there are no opinions from physicians with credentials on par with Dr. B.'s and finds that there are competent medical opinions contrasting with Dr. B.'s. The July 2009 private physician report identifies other possible causes of the Veteran's tremor, such as MS, brain tumor, alcohol, and Parkinson's that must be ruled out before it could be assumed that Reglan had caused the Veteran's tremor. The October 2010, November 2010 and December 2010 private physician reports do not provide that the Veteran had a Metoclopramide-related tremor. Rather, they state that the Veteran had essential tremor, familial tremor and subtle Parkinsonism. The Board acknowledges the assertions by the Veteran and his wife in support of the claim. They are competent to testify as to observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, their contentions that the Veteran's use of VA-prescribed Reglan resulted in hand tremors do not constitute medical evidence in support of the claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's use of Reglan resulted in hand tremors) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran and his wife cannot constitute competent medical evidence in support of the claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, supra. Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, supra. The Veteran and his wife are competent to state that they observed hand tremors after the Veteran began using Reglan. The Board finds any such assertions to be credible. However, the Veteran and his wife are not competent to attribute the coincidence of symptoms occurring after the Veteran began using Reglan as establishing the diagnosis and etiology of his hand tremors. As such, the Board finds that the assertions by the Veteran and his wife are outweighed by the May 2014 VA medical opinion addressed above. In sum, the evidence of record does not show that it is at least as likely as not that the Veteran's use of Reglan resulted in an additional disability of hand tremors. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Compensation under 38 U.S.C.A. § 1151 for hand tremors, claimed as due to VA medical treatment, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs