Citation Nr: 1313208 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 08-37 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to Department of Veterans Affairs (VA) compensation under 38 U.S.C.A. § 1151 for memory loss and a speech impairment due to VA prescribed medication. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at an RO hearing in June 2008 and a Travel Board hearing before the Board, sitting at the RO, in July 2010. Transcripts of the hearings are of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that VA had prescribed Gabapentin and Dobutamine in error, or that VA had furnished medication other than as prescribed, which resulted initially in paralysis and later in memory loss and speech impairment. Under 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. §§ 3.361. Then, 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 C.F.R. § 3.361(a). 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). 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). 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 or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. In evaluating the Veteran's claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C.A. § 1151(a)(1). In July 2012, the Board remanded the case for a VA neurological examination and opinion, which was obtained in August 2012, and an addendum to that examination was obtained in December 2012. However, the Board finds that the August 2012 examination, with a December 2012 addendum, is not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). In its July 2012 remand, the Board found that a VA neurological examination was necessary to ascertain the nature and etiology of any cognitive deficits involving memory loss and a speech impairment. In this regard, the Veteran was previously provided a VA examination in September 2011 but the Board found it inadequate because the September 2011 VA examination report contained inconsistent and conflicting information. Specifically, it stated that the Veteran did not have any additional evidence of cognitive impairment such as memory loss and/or a speech defect, but subsequently acknowledged that the Veteran had a dystonic reaction to VA prescribed Gabapentin, and that it was unforeseen, and then opined that the Veteran's additional disability was caused by or a result of an even not reasonably foreseeable. The Board's July 2012 remand directives instructed the RO to obtain a medical opinion, including as to (1) whether it is at least as likely as not that any disability involving a cognitive impairment, including memory loss and/or a speech defect was the direct result of VA carelessness, negligence, lack of proper skill, or erroneous judgment involving the prescribed use of Gabapentin and/or Dobutamine, or its erroneous provision to the Veteran of some other medication; and (2) whether it is at least as likely as not that any disability involving a cognitive impairment, including memory loss and/or a speech defect was proximately caused by an event not reasonably foreseeable. However, this has not been done. To that effect, the additional VA opinion obtained in August 2012, with a December 2012 addendum, found that the Veteran had mild memory loss and cognitive impairment. However, the VA opinion provided in December 2012, simply stated that "[t]he [V]eteran's memory loss and cognitive impairment are less likely as not (less than 50/50 probability) caused by the medications and or treatment provided by the VA. Gabapentin is not likely the cause of [c]ognitive decline, [s]peech or behavior problem." Here, the VA examiner provided no explanation of the basis for such opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, it did not address whether it is at least as likely as not that the Veteran's memory loss and cognitive impairment was proximately caused by an event not reasonably foreseeable, in relation to receiving VA medical treatment. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the case must again be remanded for a supplemental VA medical opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated treatment records for the Veteran from the Bay Pines, Florida VA Healthcare System and VA Medical Center in Tampa, Florida, and all associated outpatient clinics, dated from August 2011 to the present. All attempts to obtain those records should be documented in the claims file. 2. Obtain a VA medical opinion to determine the etiology of the Veteran's currently diagnosed memory loss and cognitive impairment. The claims file must be made available to and reviewed by the examiner. After review of the claims file, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed memory loss and cognitive impairment was caused by the prescription of Gabapentin and/or Dobutamine, or its erroneous provision to the Veteran of some other medication. If the examiner finds in the negative, the examiner must provide a complete rationale for the negative opinion. If the examiner finds in the affirmative, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the memory loss and cognitive impairment was (1) due to carelessness, accident, negligence, lack of proper skill, error in judgment, or similar instances of fault by VA, or (2) was an event not reasonably foreseeable in relation to receiving VA medical treatment. In determining whether an event was not reasonably foreseeable, the examiner must discuss whether or not the memory loss and cognitive impairment is considered to be an ordinary risk of the prescription of Gabapentin and/or Dobutamine, or any erroneous provision to the Veteran of some other medication. A complete rationale for any opinion expressed must be given, to include, as appropriate, citation to specific evidence in the record. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).