Citation Nr: 1801048 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-34 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability to include PTSD. 3. Entitlement to compensation under 38 U.S.C. § 1151 for diabetes mellitus type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from November 1974 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was afforded a Travel Board hearing in March 2017. A transcript of the hearing is of record. As reflected on the title page, the Board has recharacterized the issue on appeal to include any potentially relevant psychiatric claims raised in the record to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for an acquired psychiatric disability to include PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for PTSD was denied in a July 2007 rating decision and service connection for a delusional disorder was denied in an April 2008 rating decision. The evidence added to the record with regard to psychiatric disorders since the July 2007 and April 2008 rating decisions is not cumulative or redundant, does cure a prior evidentiary defect and does raise a reasonable possibility of substantiating the claim. 2. The Veteran suffered an additional disability from medication prescribed by VA medical professionals and the proximate cause of the disability was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The July 2007 and April 2008 rating decisions denying service connection for psychiatric disorders to include PTSD are final. New and material evidence to reopen the claim for service connection for an acquired psychiatric disability to include PTSD has been received and the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156(a), 3.159 (2017). 2. The criteria for compensation under 38 U.S.C. § 1151 for diabetes mellitus type II have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran appeals the denial to reopen the claim for entitlement to service connection for an acquired psychiatric disability to include PTSD. The Veteran filed a claim for service connection for PTSD in December 1994. In an October 1996 rating decision, the claim was denied. The RO found that the claim was not well grounded. The Veteran did not appeal that decision and did not submit new and material evidence within the one year appeal period. The December 1994 decision denying service connection for PTSD became final. In a rating decision in April 2000, the request to reopen the claim for service connection for PTSD was denied. The Veteran did not perfect an appeal to that decision nor did she submit new and material evidence within the one year appeal period. The decision became final. In a rating decision in July 2007, the request to reopen the claim for service connection for PTSD was again denied. In May 2007, the Veteran submitted a notice of disagreement to the denial. A Statement of the Case was issued in July 2008. The Veteran, however, did not perfect an appeal to this decision by submitting a VA Form 9 Substantive Appeal. The decision became final. In April 2008, service connection for a delusional disorder was denied. The RO found that the condition was neither incurred in nor caused by service. The Veteran did not appeal that decision and did not submit new and material evidence within the one year appeal period. The April 2008 decision denying service connection for a delusional disorder became final. In July 2010, the RO confirmed and continued the denial of service connection for PTSD. The RO found that the evidence was insufficient to establish a link between the current symptoms and an in service stressor. The Veteran did not appeal that decision but she submitted a statement in November 2010 from Dr. H indicating that she had severe symptoms of PTSD (service-connected). In November 2010, the Veteran also submitted a claim to reopen the previous denial of service connection. In a November 2011 rating decision, the RO confirmed and continued the denial of service connection for PTSD. The RO found that there was no evidence of record establishing a connection between the currently diagnosed disability and the Veteran's period of military service. The Veteran did not appeal that decision but in April 2012 she submitted a private opinion from Dr. H in which he opined that she "suffers from PTSD related to her military service." Although the Veteran did not submit a notice of disagreement to the July 2010 and November 2011 rating decisions, she submitted new and material evidence within a year of both rating decisions. As the Veteran submitted new and material evidence within a year of the rating decisions, the Board finds that the July 2010 and November 2011 decisions did not become final and the claims remain pending. See 38 C.F.R. § 3.156(b) (2017). Therefore, the last final denial on the claim for service connection for PTSD is the July 2007 rating decision and the last final denial on the claim for delusional disorder is April 2008. After reviewing all of the evidence of record available at the time of the July 2007 and April 2008 rating decisions and in light of the evidence received since those decisions to include the Veteran's testimony, lay statements from family, outpatient treatment records, and the November 2010 and April 2012 private opinions of Dr. H, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for an acquired psychiatric disability to include PTSD. Accordingly, the claim is reopened. 1151 Claim The Veteran appeals the denial of compensation under 38 U.S.C. § 1151 for diabetes mellitus type II. She claims the she was prescribed Zyprexa by VA medical professionals in February 2000 which later caused her to go into a diabetic coma for three days and ultimately resulted in her diagnosis of diabetes mellitus. The law provides that compensation may be paid for a qualifying additional disability 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 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 reasonably foreseeable. 38 U.S.C. § 1151. The regulations provide that benefits under 38 U.S.C.§ 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, or 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. 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 reasonably 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). The record shows that the Veteran was hospitalized at a VA medical facility from January 2000 to February 2000. Upon discharge, she was diagnosed with paranoid delusional disorder and prescribed Olanzapine. Medical instructions for Olanzapine note that the brand name is Zyprexa. In June 2001, the Veteran was seen at a private mental health facility. At that time, the Veteran's sister reported that she was acting bizarre and would not take her medication. Dr. P stated that he first treated the Veteran a year and a half prior and at that time she exhibited signs of paranoia. He recommended hospitalization. She was hospitalized at a VA hospital in Tuskegee and discharged on Olanzapine he stated. The Veteran admitted to running out of her medication for at least six months and she expressed that the medication made her gain weight. Dr. P started the Veteran on Zyprexa according to his records. In a December 2002 treatment note, Dr. P stated that the Zyprexa was discontinued about a month prior because the Veteran was diagnosed with diabetic ketoacidosis. In July 2010, Dr. N expressed that the Veteran was submitted into his care in October 2002. At that time, her family said she seemed confused and "wasn't acting right." The Veteran was submitted into the intensive care unit for care for a new onset of diabetes mellitus with diabetic ketoacidosis. Dr. N stated that the Veteran had been prescribed Zyprexa by her psychiatrist for some type of mental disorder prior to her admission to the hospital. He also noted that one of the warnings associated with Zyprexa usage is that it could cause hyperglycemia, sometimes extreme, and could be associated with ketoacidosis. In support of her claim, the Veteran has submitted excerpts from a clinical trial study which notes that "weight gain and an increased risk of diabetes are the most common and concerning side effects of Zyprexa." An article titled, Zyprexa Diabetes, discusses how case studies and clinical trials in the U.S. and abroad have found that taking Zyprexa significantly increases a patient's risk of developing diabetes and other serious complications. In another article, titled Zyprexa Side Effects, it was noted that Zyprexa has been linked to diabetes hyperglycemia and neuroleptic malignant syndrome. In July 2017, after review of the record, Chief of Endocrinology, Dr. N stated that it appears plausible that the use of Olanzapine played a role in the development of diabetes. Dr. N noted that Olanzapine was approved by the U.S. Food and Drug Administration in 1996 and at that time it was recognized that weight gain and an increased risk of diabetes were one of the most common side effects. Once it was released in general practice, however, he noted that it appeared that the clinical consensus was the Olanzapine showed "only a few adverse events such as dry mouth, sedation and increased appetite." He found that while the use of Olanzapine appeared effective for the Veteran's paranoia, it caused weight gain and probably contributed to the admission for ketoacidosis. In regards to there being carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's furnishing medical treatment, he did not believe that the evidence supported this conclusion. Rather, he found that this severe form of side effect was not fully recognized during the time of treatment of this case and therefore was not foreseeable. He stated that ketoacidosis is a very rare and extreme form of side of effect. He concluded that the development of diabetes with ketoacidosis was a rare and unfortunate consequence of an otherwise rational medical treatment approach. A review of the record shows that the Veteran more likely than not developed diabetes with ketoacidosis as a side effect of medication prescribed to her by VA medical professionals. In support of this conclusion, the Board defers to Dr. N's July 2017 findings. The Board notes, however, that merely showing that the Veteran received treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). In this case, Dr. N found that the additional disability was not proximately caused by VA carelessness, negligence, lack of proper skill, error in judgement, or similar error in fault. However, Dr. N found that the severe form of side effect (diabetes with ketoacidosis) was not fully recognized during the time of the Veteran's treatment and therefore was not foreseeable. The statute and regulation reflect that, if additional disability due to VA treatment is either caused by VA fault or the result of an event not reasonably foreseeable, entitlement to compensation under 38 U.S.C. § 1151 is warranted. The meaning of the term "not reasonably foreseeable" is ambiguous and subject to multiple interpretations which is not otherwise clarified by legislative intent. See Schertz v. Shinseki, 26 Vet. App. 362, 367-8 (2013). The Court interpreted this phrase as encompassing VA compensation for events which are not reasonably foreseeable by a reasonable health care provider. The opinion by Dr. N indicates that side effects suffered by the Veteran would not be foreseeable to a reasonable health care provider due to the rarity of the potential complication. As such, based upon Dr. N findings that the Veteran's severe form of side effect was not fully recognized during the time of treatment and therefore was not foreseeable, the Board must find in favor of the claim. 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. Nothing in Dr. N's statement reflects that diabetes mellitus with ketoacidosis was considered an ordinary risk during the time of the Veteran's treatment. Rather, he stated that ketoacidosis is a very rare and extreme form of side of effect. In sum, the Board concludes that the appellant suffered an additional disability from medication prescribed by VA medical professionals and that the proximate cause of the disability was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Accordingly, the claim is granted. ORDER New and material evidence has been received; the application to reopen the claim for entitlement to service connection for an acquired psychiatric disability to include PTSD is granted to this extent only. Compensation under 38 U.S.C. § 1151 for diabetes mellitus type II with ketoacidosis is granted. REMAND Having reopened the Veteran's claim for service connection for an acquired psychiatric disorder to include PTSD, the Board finds that further development is needed. To that end, the Veteran reports that she was sexually assaulted in service during the summer of 1981 or 1982 which causes her to have nightmares. She also reports enduring racial harassment during service. While the October 2011 VA examination found that the Veteran did not endorse symptoms meeting the criteria for an anxiety disorder including PTSD, in April 2012 private examiner Dr. H opined that the Veteran "suffers from PTSD related to her military service." He did not, however, include any rational or reasoning for the opinion rendered. The Board further notes that in January 1995, clinical social worker K.H. found that the Veteran presented with symptoms consistent with PTSD and she indicated that the Veteran's symptoms included intrusive thoughts related to emotional, racial and gender abuse that were experienced in service. In light of the lay statements of record and the opinions of Dr. H and K.H., the Board finds that another VA examination is warranted for proper adjudication of the Veteran's claim. The Board further notes that the Veteran is in receipt of Social Security benefits. It appears, however, that her medical records and decisions relating to the Social Security Administration grant of benefits have not been associated with the claims file. As such, a remand is necessary to obtain and associate with the claims file any relevant Social Security Administration records and decisions. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the file any outstanding VA treatment records since 2015. 2. Conduct an appropriate search for any separately maintained mental health treatment records at Winn Army Community Hospital, Community Mental Health service in 1991. See M21-1, IV.ii.1.D.2.a (discussing that mental health treatment records separately maintained); mental health records and/or inpatient treatment (clinical) records from the service department are filed separately and generally not provided, absent a specific request). See also M21-1MR, part III.subpart iii.2.A.1.a (distinguishing between service treatment records, mental health records, and inpatient treatment (clinical records)). 3. Obtain all relevant outstanding Social Security Administration disability records and decisions, and associate them with the claims file. The AOJ should contact the Social Security Administration for the purpose of obtaining a copy of all decisions and all medical records relied upon in conjunction with the appellant's claim for Social Security Administration disability benefits. 4. Schedule the Veteran for a VA examination to determine if he has an acquired psychiatric disability that is related to service to include reports of sexual trauma and racial harassment. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. After examination and review of the record, the examiner must opine as to the following: a) Whether the Veteran manifests PTSD and, if so, identify the stressor(s) productive of PTSD including whether PTSD is due to in service sexual trauma and/or racial harassment. If PTSD is diagnosed, the examiner should be asked to review the record and provide an opinion as to whether there is any evidence of behavior changes in service after the sexual assaults reported by the Veteran as occurring in June/July 1981/82 which could provide corroborative evidence that the assaults occurred. (Evidence of behavior changes may include deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes). b) identify all other diagnosed acquired psychiatric disorders manifested by the Veteran since service discharge even if currently asymptomatic; VA treatment records include diagnoses of anxiety, paranoid delusional disorder, paranoid schizophrenia and schizoaffective disorder. The examiner should reconcile the diagnoses to the extent possible. and c) provide opinion as to whether it is at least as likely as not, i.e., is there a 50/50 chance that any psychiatric disability, diagnosed on examination or in the record, had its onset in service or was caused by service. In providing these opinions, the examiner must consider service treatment records wherein the Veteran reported "WORRYING A LOT" on a behavioral/health data questionnaire, the available records of mental health consultations in early 1991, the November 2010 and April 2012 opinions of Dr. H and January 1995 opinion of K.H. The examiner must reconcile any opinion with the lay statements and testimony of the Veteran including report of being sexually assaulted in approximately June/July of 1981/82. 5. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs