Citation Nr: 1417807 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 10-44 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for hand tremors, claimed as due to VA medical treatment. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The appellant had active service from October 1963 to September 1964 and from May to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2012, the Veteran and his wife testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2013, the Board remanded this case to the RO for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 A review of record indicates that this claim requires additional development. The Board's March 2013 remand noted that VA negative medical opinions obtained in March 2010, October 2010 and April 2011 were inadequate. As a result, the Board requested a VA examination. The examination was to include a review of the claims file, after which the examiner was to provide a diagnosis for any current hand tremor disability and an opinion as to whether it was casually related to or permanently aggravated by the Veteran's use of Reglan (metoclopramide) as prescribed by VA from approximately November 2004 to June 2009. If the answer was yes, the examiner was to provide an opinion as to whether (i) the additional disability was the result of or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in prescribing Reglan (metoclopramide) at the dosage, frequency and/or length of time for which it was prescribed; and (ii) the subsequent hand tremor disability was a reasonably foreseeable result of that treatment. In July 2013, a VA examiner offered the opinion that the Veteran's diagnosis was essential tremor and that it was not at least as likely as not causally related to or permanently aggravated by the Veteran's use of Reglan (metoclopramide) as prescribed by VA from approximately November 2004 to June 2009. However, the examiner did not provide an adequate rationale for her negative opinion. The examiner did not conduct a VA examination, as requested by the Board's remand. The examiner did not review the claims file, as requested by the Board's remand. The examiner did not acknowledge, address or respond to a June 2009 private treatment record that indicated that the Veteran had gastroparesis, which had been treated with metoclopramide, but that had resulted in side effects of tardive dyskinesia. The private physician noted that "hopefully, this is still reversible, but with long term use it has been noted to be more permanent damage and more permanent tardive dyskinesia." In addition, the examiner pointed out that the Veteran's claim had been addressed three times by VA examinations in the past, first in March 2010, next in October 2010 and then in April 2011, ignoring the fact that the Board previously found that those VA medical opinions were inadequate. The examiner opined that if the Veteran had undergone temporary aggravation of his tremor while he was taking metoclopramide, it was not likely that it caused permanent aggravation. She provided no rationale for this conclusion, other than to point out that it was also the conclusion of the two VA neurologists who evaluated the patient in 2010. Again, the Board previously found that the three prior VA medical opinions were inadequate. Thus, any medical opinion based even in part on them must be inadequate. As a result of the foregoing, the Board finds that the entire May 2013 VA medical opinion is inadequate, and additional development to obtain a clarifying medical opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the May 2013 VA medical opinion is inadequate, the development requested by the Board's March 2013 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. 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. Schedule the Veteran for a VA examination with a VA clinician of appropriate expertise to determine the nature and likely etiology of the Veteran's hand tremors. The claims file and all electronic records must be reviewed by the examiner in conjunction with the examination. Any indicated studies are to be performed. The examiner must provide a diagnosis for any current hand tremor disability and an opinion as to whether it is at least as likely as not (50 percent probability) casually related to or permanently aggravated by the Veteran's use of Reglan (metoclopramide) as prescribed by VA from approximately November 2004 to June 2009. If the answer is yes, the following questions must be answered: (i) Is the additional disability at least as likely as not (i.e., a probability of 50 percent or greater) the result of or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in prescribing Reglan (metoclopramide) at the dosage, frequency and/or length of time for which it was prescribed? (ii) Was the subsequent hand tremor disability a reasonably foreseeable result of that treatment? The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. The examiner is requested to specifically acknowledge, address or respond to the June 2009 private treatment record. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ M. E. LARKIN 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) (2013).