Citation Nr: 18152487 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-20 514 DATE: November 27, 2018 REMANDED Entitlement to compensation under 38 U.S.C § 1151 for gynecomastia is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision. In his June 2015 substantive appeal, the Veteran requested a hearing before the Board. The Veteran was notified of the date, time, and location of the scheduled hearing in an April 2017 letter; however, he failed to report for that proceeding and has not requested that the hearing be rescheduled or provided good cause. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. 20.704(d) (2017). The Board notes that issue of entitlement to service connection for gynecomastia as secondary to the Veteran’s service-connected schizophrenia has been reasonably raised by the record. See, e.g., January 2013 statement in support of claim. The record currently available to the Board contains no indication that the AOJ has addressed this matter. Therefore, the Board does not have jurisdiction over the issue, and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b). On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s claim under 38 U.S.C. § 1151. The Veteran has contended that he has an additional disability as a result of VA negligently prescribing him Risperdal for his service-connected schizophrenia. He has also asserted that he did not consent to taking medication that would cause the development of gynecomastia. The VA medical records currently associated with the claims file show that the Veteran was prescribed Risperdal in October 1994. In November 1995, he was admitted to the hospital to initiate treatment with a new medication. An October 1997 VA mental health record noted that the Veteran would be prescribed a trial of Risperidone if his symptomatology did not improve. However, subsequent VA medical records continued to show treatment with other psychiatric medications. A June 2001 VA mental health record also noted that the Veteran switched medications to Risperidone in August 1998. Thereafter, an April 2002 VA medical record noted a diagnosis of gynecomastia. The Board finds that additional development is necessary to determine whether VA complied with the required informed consent procedures under 38 C.F.R. § 17.32. In order to give informed consent, the patient must have decision-making capacity and be able to communicate decisions concerning health care. 38 C.F.R. § 17.32(b). In this case, the Veteran has been considered incompetent for purposes of receiving VA benefits since October 23, 1986. In addition, VA examinations dated prior to 1994 indicated that the Veteran was incompetent. See, e.g., September 1986 (noting that the Veteran needed guardianship and should not handle his own affairs from a legal standpoint); September 1987 (noting that the Veteran should remain under the guardianship of his mother); and March 1991 (noting that the Veteran was incompetent with marked incapacity). Thereafter, a September 1992 VA hospital record indicated that the Veteran was competent to handle funds. However, in January 1994, the Veteran reported that his psychiatric condition had worsened in severity and that his thought processes were confused and disoriented. In addition, a November 1995 VA medical record noted that the Veteran suffered from auditory hallucinations that gave him conflicting commands and caused him to have difficulty making decisions. The AOJ obtained a VA medical opinion in connection with the Veteran’s claim in April 2015; however, the examiner did not specifically address whether the Veteran’s gynecomastia constituted an additional disability. Moreover, in light of the VA medical evidence discussed above, the Board finds that a VA medical opinion addressing the Veteran’s mental competency at the time he was prescribed Risperdal would be helpful. The Board also notes that the Veteran’s VA medical records appear incomplete. In this regard, the medical records dated prior to October 1994 do not appear to contain any information regarding when the Veteran was initially prescribed Risperdal. In addition, the VA medical evidence references treatment records that do not appear to be associated with the claims file. For example, a November 1995 VA hospital record noted that the Veteran was admitted to the hospital in December 1994. A November 1995 VA hospital record also indicated that the Veteran received treatment at a VA medical center in Waco, Texas. In addition, a June 2001 VA mental health record noted that the Veteran switched medications to Risperidone in August 1998. Therefore, the AOJ should obtain any outstanding VA medical records. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his schizophrenia. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records from a VA medical facility in Waco, Texas; any VA hospital records dated in December 1994; and any records from the Dallas VAMC dated from June 1998 to January 2000. 2. After completing the foregoing development, the Veteran should be afforded a VA examination in connection with his claim for compensation under the provisions 38 U.S.C. § 1151. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s relevant post-service medical records and lay assertions. The Veteran has contended that he has an additional disability as a result of VA negligently prescribing him Risperdal for his service-connected schizophrenia. He has also asserted that he did not consent to taking medication that would cause the development of gynecomastia. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran has any additional disability as a result of the Risperdal prescribed to him by VA for treatment of schizophrenia. If the Veteran has any additional disability, the examiner should state whether it resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or was an event not reasonably foreseeable. If the Veteran has any additional disability, the examiner should state whether the Veteran had the ability to understand and appreciate the nature and consequence of his health care treatment and the ability to communicate decisions concerning his health care at the time he was prescribed Risperdal. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the foregoing development, the AOJ should conduct any other development that may be indicated as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Merry Wulff, Associate Counsel