Citation Nr: 1648274 Decision Date: 12/28/16 Archive Date: 01/06/17 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: Michael E. Wildhaber, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran 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 March 2013 and April 2014, the Board remanded this case for additional development. The Board denied the claim in an October 2014 decision. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a May 2016 Memorandum Decision, the Court vacated the Board's October 2014 decision and remanded the matter to the Board for readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court vacated the Board's October 2014 decision in part because the Board failed to ensure substantial compliance with its April 2014 remand order. In doing so, the Court cited Stegall v. West, 11 Vet. App. 268 (1998). The Court pointed out that the Board did not discuss whether a May 2014 VA medical examination, conducted pursuant to the April 2014 remand, satisfied the remand directives. The Board did not consider that the VA examiner stated that she did not review the claims file and only addressed the Veteran's VA treatment records and VBMS and VVA records. The Board did not explain how the VA examiner, a physician with a Master's Degree in public health, was qualified to examine the Veteran, review his neurological records and provide a nexus opinion as to his tremors and long-term use of VA-prescribed Reglan. The VA examiner's rationale consisted solely of paraphrases of other physicians' findings in the record. The VA examiner also failed to note that the record reveals that other physicians had found a relationship between Reglan and conditions other than tardive dyskinesia that involve tremors. The Court held that on remand, the Board must obtain a new medical examination that complies with its April 2014 remand order. In particular, the Board must explain why the examiner is particularly qualified to conduct the examination and render the opinion required by the remand order and must ensure that the qualified examiner reviews the entire claims file and provides a comprehensive opinion that explains whether it is at least as likely as not that the Veteran's tremors were caused by or are related to taking VA prescribed Reglan. The Court further noted that the Board provided inadequate reasons or bases for its assessment of the probative weight of an August 2014 private medical opinion from C.N.B., M.D. and rejected this medical opinion with its own unsubstantiated opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1990). The Court referred to the Board's assessment that, despite medical research indicating that there is an increased likelihood that tremors will become irreversible as the duration and total cumulative dose of Reglan increase, there must also be evidence demonstrating that tremors worsen after discontinuing Reglan to find that the Veteran's tremors were caused by his VA-prescribed Reglan. The Court also observed that the Board relied on the Veteran's treatment records to carry the same probative weight as C.N.B.'s nexus opinion. However, a review of the record did not indicate that the Veteran's treating physicians and medical providers opined that Reglan did not cause his tremors and thus their findings did not directly contradict C.N.B.'s medical opinion. Further, the Veteran's treating physicians explained how his use of Reglan could cause Parkinsonism, a neurological disorder that can cause tremors and, in December 2010, a private physician diagnosed him with that condition. The Board did not explain why the treating physicians' diagnoses of various types of tremors and Parkinsonism support a finding that the Veteran's tremors were not caused by his use of VA-prescribed Reglan. Accordingly, the Court concluded that the Board's assessment of the probative weight of C.N.B.'s medical opinion is inadequate to permit the Veteran to understand the precise basis for its decision and frustrates judicial review. In August 2016, the Veteran's attorney submitted an additional medical opinion from C.N.B., dated in May 2016. The VA examiner should address this opinion in his or her report. 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. Copies of all electronic records, including the May 2016 medical opinion from C.N.B., must be made available to the examiner for review in conjunction with the examination. Any indicated studies are to be performed. In scheduling the examination, the AOJ must consider that the provider be specifically qualified to examine the Veteran, review his neurological records and provide the requested opinion. 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 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." 2. Thereafter, readjudicate the issue on appeal; addressing all evidence received since the Board's October 2014 decision, including the May 2016 medical opinion from C.N.B. 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 2015). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2016).