Citation Nr: 20060335 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 07-11 876 DATE: September 14, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for diabetes mellitus is denied. FINDING OF FACT The Veteran’s Type II diabetes has not been shown to have been caused or permanently worsened by medication prescribed by VA. CONCLUSION OF LAW The criteria for compensation for the additional disability of diabetes have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to February 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this appeal in April 2019 and March 2020 for additional development which has been completed. The Veteran did not appear for previously scheduled Board hearings in August 2018 and March 2019. As discussed in the Board’s April 2019 and March 2020 remand, the Board has found that the Veteran’s hearing request has been withdrawn. 38 C.F.R. § 20.704 (d). Entitlement to compensation under 38 U.S.C. § 1151 for diabetes mellitus The Veteran contends that her diagnosed diabetes mellitus was caused by the medication olanzapine, also known as Zyprexa, prescribed by her VA physician, to include as due to excessive weight gain associated with the medication. See November 2013 VA 21-0820; December 2013 VA 21-4138. She asserts negligence on the part of the VA for not informing her of the risks or side effects for such medication and for not closely monitoring her blood glucose levels during this period. Pursuant to 38 U.S.C. § 1151, compensation benefits shall be awarded for a “qualifying additional disability” in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran’s willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a “qualifying additional disability,” the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment or examination or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. To determine whether a Veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to his condition after such care, treatment, or examination has stopped. VA considers each involved body part or system separately. See 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a Veteran’s additional disability. Merely showing that he received care, treatment, or examination and that he has an additional disability does not establish cause. See 38 C.F.R. § 3.361 (c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the 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. See 38 C.F.R. § 3.361 (c)(2). Additional disability caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. See 38 C.F.R. § 3.361 (c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361 (d). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused his additional disability (as explained in 38 C.F.R. § 3.361 (c)); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without a Veteran’s or, in appropriate cases, his representative’s informed consent. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be 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. See 38 C.F.R. § 3.361 (d)(2). Turning to the facts of the present case, the Veteran was seen in April 2012 by a VA staff psychiatrist. The Veteran reported that she had previously been prescribed numerous psychiatric medications. She reported that olanzapine had been the most helpful to her. The staff psychiatrist re-started the Veteran on olanzapine with a dosage of 7.5 mg at bedtime. In doing so, the clinician noted that the Veteran had been on a previous dosage of 20 mg, but the clinician wanted to work up to that dosage given the Veteran’s paradoxical response to previous psychiatric medication. The clinician also requested that the Veteran return in 4 to 6 weeks for a thyroid antibody check. A subsequent April 2012 administrative note indicated that the Veteran called and requested increased dosage of olanzapine and reported that she had been increasing the dosage on her own. See April 2020 VA examination. The clinician agreed to the request for increased dosage. In May 2012, the Veteran again reported taking more than the prescribed dosage of olanzapine for a total dosage of 30 mg. The clinician cautioned the Veteran against her usual practice of taking more than the prescribed dosage to avoid serious side effects and complications. At the visit, the Veteran was noted to be appropriately concerned about excessive weight gain. The plan included an increase of olanzapine to 20 mg at bedtime. The May 2012 VA treatment records also show that the Veteran underwent thyroid studies and was consulted and treated regarding her hypothyroid and TSH levels. The June 2012 mental health note indicated that the Veteran was to continue olanzapine at 20 mg. That note also indicated that the Veteran’s weight, serum glucose, and BMI should be monitored for metabolic syndrome while on olanzapine. In September 2012 VA treatment records, the Veteran reported taking 40 mg of olanzapine at bedtime. In December 2012 mental health note, the clinician discussed with the Veteran the relationship between her psychiatric medications, weight gain, and the potential to develop diabetes. Although the clinician continued the Veteran on 40 mg of olanzapine, the clinician recommended increased physical activity and an exercise regimen. By March 2013, the Veteran was noted to have increased in weight from 188 pounds one year prior to 234 pounds at present. The clinician noted that this corresponds to the Veteran’s increased olanzapine dosage and the Veteran agreed to decreasing the dosage gradually. VA treatment records from March 2013 also showed a new diagnosis of diabetes based on labs drawn. Pursuant to the Board’s Remand, VA obtained a medical opinion in April 2020. The opinion was undertaken using the Acceptable Clinical Evidence (ACE) process and included review of the VA e-folder, electronic health record, and current medical literature. The examination report explicitly listed the Veteran’s contention and the relevant medical records. The examiner determined that there was no additional disability, to specifically include diabetes, related to medication prescribed by the VA for the Veteran’s psychiatric disorder. The examiner noted that the Veteran was obese, and but noted her weight was an issue prior to being prescribed olanzapine by VA clinicians. The examiner indicated the Veteran had a prior history of poor nutritional intake and lifestyle habits. The examiner also opined that in addition to diabetes not being an ‘additional disability’ caused by the medication, VA treatment records show her general history of non-compliance with prescribed dosage of the drug. The examiner indicated that the Veteran self-adjusted her olanzapine to higher dosage multiple times and provided specific instances in the medical records to support that finding. The examiner noted that it was apparent from the record that side effects of medication was discussed. The examiner also opined that there is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. She explained that the medication side effects were discussed with the Veteran and she self-adjusted her medication dose. Finally, although the examiner determined the Veteran did not have an additional disability caused or made worse by the medication prescribed by VA - weight gain, in the setting of poor diet and lifestyle choices, can occur with numerous medications and when on no medications. Upon review, the Board finds that the claim of entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, for diabetes as a result of VA medical treatment, including prescription medication must be denied. Based on the evidence discussed, the Board finds that an additional disability was not caused by VA medical treatment in this instance. Although the Veteran was diagnosed with Type II diabetes after being use of prescription medication for her psychiatric disorder, the competent and probative evidence of record demonstrates that the Veteran’s development of obesity, and ultimately, diabetes was not directly attributable to the use of the medication in question. That is, an additional disability was not incurred. As the April 2020 examiner noted, the Veteran’s weight was an issue prior to being prescribed olanzapine by VA clinicians, as was her prior history of poor nutritional intake and lifestyle habits. The examiner determined that the Veteran’s development of obesity was not directly attributable to the use of VA-prescribed medication for her psychiatric disorder. The April 2020 opinion was based on a thorough review of the claims file, included consideration of the Veteran’s relevant medical history along with relevant medical literature, and is supported by a complete, clearly stated rationale. Thus, the Board accepts this opinion as probative on the matter. Based on the opinion, the Board finds obesity is not an additional disability caused or aggravated by the medication she received from VA and thus, in turn, her diabetes mellitus, type II is not caused by a medication prescribed by her VA physician. The Veteran has not presented, and the evidence does not otherwise include, any contrary medical opinion which supports her assertion that she developed obesity, and ultimately Type II diabetes, due to use of VA-prescribed medication. To the extent the Veteran asserts she developed an additional disability due to the prescribed use of olanzapine, her unsupported lay assertions are outweighed by the competent and persuasive opinion from the VA examiner. The Board has considered her specific assertions, however, in the absence of a current disability demonstrated to be the result of VA medical care, whether such medical care was careless, negligence, or an event not reasonably foreseeable is of no consequence. The appeal is denied because the Veteran has not met the threshold requirement for establishing entitlement to § 1151 benefits, i.e., she has not shown that VA treatment (medication for her psychiatric disorder) caused an additional disability (Type II diabetes). As such, the threshold legal requirement for substantiating a § 1151 claim, a showing of additional disability due to VA medical treatment, has not been met. Hence, it is not necessary to address the further requirements for establishing entitlement to the benefit sought, including whether there was negligence or other instance of fault on the part of VA (or whether there is disability due to an unforeseen event). Under these circumstances, the appeal for entitlement to compensation pursuant to 38 U.S.C. § 1151 for diabetes as a result of VA medical treatment must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). However, it is not applicable. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.