Citation Nr: 21070668 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-30 500 DATE: November 24, 2021 REMANDED 1. Entitlement to compensation under 38 U.S.C. § 1151 for sun sensitivity due to Niacin is remanded. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from December 1971 to December 1978. The Veteran testified before the undersigned Veterans Law Judge at a virtual teleconference hearing in June 2021. A transcript of the hearing is within the record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for sun sensitivity due to Niacin Generally, as long as there is no willful misconduct by a veteran, disability resulting from VA treatment is compensated in the same manner as if service connected. 38 U.S.C. § 1151. Entitlement to § 1151 benefits requires additional disability, actual causation, and proximate causation. 38 C.F.R. § 3.361(b)-(d). To establish proximate causation, there must either be evidence of (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment, or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c), (d). To determine whether an event was reasonably foreseeable, there must be a consideration of what a reasonable health care provider would not have considered to be an ordinary risk of the treatment and 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. 38 C.F.R. § 3.361(d)(2). The Veteran alleges he is entitled to compensation under 38 U.S.C. § 1151 because prescribed medication resulted in severe side effects including sun sensitivity and turning him "red as [a] beet." See June 2021 Board hearing. At the hearing, the Veteran testified he believes it is the Niacin that was prescribed by VA that has caused the side effects. The Board finds a remand is required to secure a VA medical opinion, to include providing the Veteran with an examination if necessary, to determine if the Veteran has an additional disability and the actual or proximate cause of the additional disability. 2. Entitlement to service connection for a psychiatric disorder, to include PTSD During the June 2021 Board hearing, the Veteran stated that he felt the medical records from Susan O'Grady, Ph.D., were pertinent to his service connection claim for a psychiatric disorder. However, a review of the record shows that no attempt was made to obtain these private medical treatment records. Therefore, the Board finds that prior to deciding the Veteran's claim, attempts must be made to obtain these records, and these attempts must be documented in the claims file. The matters are REMANDED for the following action: 1. Obtain a VA opinion regarding the whether there are additional disabilities compensable under § 1151. The entire claims file must be made available to and be reviewed by the examiner. If an in-person examination is deemed necessary by the examiner to provide an informed opinion, then schedule an examination. The examiner must be provided access to the claims file for review. The agency of original jurisdiction is asked to provide the examiner with the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran states that he was given Niacin by VA to remove medication from his system but that the Niacin had an unfortunate reaction on him, and it turned his skin red. He stated he cannot go outside without a jacket and spends very little time outside. He described becoming "incredibly sun sensitive" as a result of the Niacin and states he was not told of this effect. See VBMS entry with document type, "Hearing Transcript," receipt date 06/25/2021, pp. 22-23. A February 2006 VA treatment record shows that VA wrote to the Veteran stating, "Please be informed that Dr. Green has prescribed Gemfibrozil to reduce cholesterol and triglycerides and you'll be getting it in the mail. Dr. Green wants you to have a fasting blood test two weeks after starting this medication. Dr. Green also has sent a consult for you to see the dietician." See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 234 A February 2006 VA "addendum" states that the Veteran's high triglycerides could be due to diabetes mellitus, pancreatitis, or excessive alcohol consumption. The examiner noted that the last HBA1c was withing normal limits, that the Veteran had slightly elevated liver function tests, and CPK was still elevated. The examiner documented that fibrates were best to reduce triglycerides and would start gemfibrozil 300mg BID and monitor LFTs, CPK in 2-3 weeks. The examiner noted that if the Veteran could not tolerate gemfibrozil, VA may consider low dose Niacin or fish oil capsules. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 235. A May 2006 VA treatment record shows that the Veteran had been started on gemfibrozil in February 2006 with slight improvement in triglycerides but rise in LFTs by March 2006 and gemfibrozil was stopped. At that point, he was taking fish oil and had not experienced side effects. Under the assessment/plan, the examiner noted that they would avoid agents that may cause a rise in the LFTs, such as statins, fibrates, and niacin. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, pp. 212-214. A September 2006 VA treatment record shows a notation that the Veteran had elevated LFTs of unclear etiology with hepatitis workup. The examiner wrote not to use any statins, fibrates, niacin or ezetimibe at this time, nor colestipol due to high triglycerides. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 195. An April 2010 VA treatment record shows a list of medications, which included Niacin, 500MG SA TAB. This appears to be when the Veteran was first prescribed Niacin. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 92. In May 2010, the Veteran was seen following complaints of multiple side effects to newly-started medications: had abdominal pain, gas pain, chest pain, shortness of breath, flushing since started taking Niacin, Trazodone and Terazosin by primary care physician on last visit on 04/29/10. The examiner documented that Veteran already was advised to stop Niacin and trazodone by primary care physician but was referred to urgent care because of some sharp pain in chest. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 91. Also in May 2010, the Veteran reported he was on Niacin for two and a half weeks and since stopping the medication, his symptoms of chest pain, abdominal pain, flushing, heat, pricking of his skin, and aches have resolved and he does not want to retry again with taking ASA 81mg 30 minutes prior because he is already on ASA and the side effects too intolerable. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 70. In June 2010, the Veteran reported that he quit Niaspan two months ago after taking for three weeks. He developed rash on arms as well as skin sensitivity especially on sun exposure since then and it has not gone away. The examiner documented the Veteran seemed very distressed about burning sensation on scalp and arms on sun exposure and during shower and described it as feeling like being stuck by a thousand needles. Upon examination, the examiner noted that there were scattered punctate red spots on arms and redness all over scalp (seems like sunburn). The examiner noted there was no rash anyplace else on body. The examiner questioned whether it was an allergic reaction to Niaspan and documented that they would try prednisone for one week. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 30. A July 2010 VA treatment record shows that the nurse called the Veteran back. He complained of a red rash on the top of his head that was painful and felt like it was on fire when he was out in the sun. He reported completing Prednisone yesterday, but that he continued to have a rash on his head and asked for a dermatology consult. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 27. The Veteran had a dermatology consultation in July 2010. The dermatologist stated the unpleasant sensation that the Veteran experiences could be related to the effect of the atenolol with the sun exposure. Terazosin and trazodone also can cause photoreaction, but the Veteran claims to not be taking those medications. The tingling sensation on the extremities can be related to the neuropathy that he is known to have, and he may benefit from gabapentin. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, pp. 17-18 An August 2010 VA treatment record shows the Veteran was seen for his complaints related to his reaction to niacin. He described having hot flashes and never resolved. He described a prickly heat feeling on the arms and that the feeling intensified with sun exposure. The examiner noted the Veteran had neuropathy. The examiner documented, "P[atien]t reports no improvement. He continues to have burning sensation on the skin, and is worse on the exposed areas. He [ha]s been off of the atenolol, terazosin and trazodone. Pt reports no benefit from the Lidex." See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, p. 15. In September 2010, the Veteran had another VA dermatology consultation. The physician noted that the Veteran was treated with atenolol and niacin almost three months ago. Immediately following the therapies, he developed scalp and facial flushing. This stopped after the cessation of these medications. However, he now has developed severe photosensitivity. Any exposure to sunrays causes erythema, burning and needle-like sensation. There was no history of vesicular or bullous changes, ulcerations, or changes in pigmentation. His medications were discontinued, and he was treated with fluocinonide solution, gabapentin, and vitamin D. These measures were not effective as he has continued to have significant photosensitivity. He is concerned whether this condition will persist as it has affected his daily and family life significantly. See VBMS entry with document type, "CAPRI," receipt date 02/19/2015, pp. 11-12. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. The examiner must provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or higher) that the Veteran experienced an additional disability, to specifically include sun sensitivity due to VA treatment, namely, prescribed Niacin? Please state upon what facts, medical principles, and/or medical literature the opinion is based. (b.) If the Veteran had additional disability due to VA treatment, namely prescribed Niacin, did such additional disability resolve? If so, please identify the end date of the additional disability, and any related symptoms. (c.) If the Veteran had additional disability due to VA treatment, namely prescribed Niacin, even if such additional disability resolved, was the proximate cause of the disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of VA in furnishing the Niacin treatment? When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (d.) Is any such additional disability to specifically include sun sensitivity due to VA treatment, namely prescribed Niacin, due to an event not reasonably foreseeable? (e.) Was VA required to obtain informed consent from the Veteran to prescribe Niacin? The examiner should provide a complete rationale for all opinions rendered. If the reviewing clinician cannot provide the requested opinion(s) without resorting to speculation, it must be so stated, and he or she must provide the reasons why such opinion would require speculation. 2. Ask the Veteran to complete a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), in order to obtain the private medical treatment records from Susan O'Grady, Ph.D. and any other private medical treatment facility for which the Veteran received treatment for his claimed psychiatric disorder. Make two requests for these authorized records unless it is clear after the first request that a second request would be futile. All attempts to obtain these records must be documented in the claims file. 3. Complete any additional development necessary based on the newly-obtained records. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.