Citation Nr: 1709921 Decision Date: 03/29/17 Archive Date: 04/11/17 DOCKET NO. 09-43 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for bilateral lower extremity peripheral neuropathy resulting from prescription of Amlodipine for high blood pressure at a VA facility. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to December 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2008, May 2009, and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. When the Veteran's claims for service connection for bilateral knee disabilities were before the Board in August 2013, they were remanded for additional development. The claims are now again before the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. REMAND The Board finds additional development is required before the Veteran's claims are decided. Bilateral knee disabilities At the outset the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran's lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board also notes that a remand by the Court or the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its August 2013 remand, the Board noted the Veteran's contention that his bilateral knee disabilities were caused by his participation in training exercises during service. The Board remanded the Veteran's claims for a VA examination to address the nature and etiology of his knee disabilities. The Board specifically instructed the RO to afford the Veteran an examination by an orthopedist. The orthopedist was requested to opine as to whether it was at least as likely as not that any identified knee disabilities had their onset during service or were otherwise related to the Veteran's service, to include participation in rigorous training exercises. The Veteran was afforded a VA examination in March 2015. The examiner provided diagnoses of a right knee meniscal tear in 2000, bilateral knee degenerative arthritis in the 2000s, and calcium pyrophosphate deposition disease of the bilateral knees in 2000. The examiner noted the Veteran's report that the onset of his bilateral knee pain was about 10 years prior to the examination, and that he believed his symptoms were related to duck walking, deep knee bends, and squat jumps during service. The Veteran was noted to have recalled pain in service, but not at separation or shortly after service. The Veteran reported he saw a physician for knee pain for a number of years. Regarding the etiology of the Veteran's knee disabilities, the examiner stated he was unable to provide an opinion without resort to mere speculation. In this regard, the examiner stated the Veteran had not asserted he experienced ongoing knee problems since service, but rather that he had bilateral knee pain in service and developed increasing knee pain beginning 10 years prior to the examination. The examiner stated he found the Veteran's assertion of knee symptoms in association with rigorous basic training in service to be entirely plausible. However, the examiner stated, the Veteran's knee pain itself did not suggest or permit a specific diagnosis. The examiner further noted the Veteran had chondrocalcinosis, also known as pseudogout or pyrophosphate deposition disease, affecting both knees, and had a history of a torn medial meniscus and some degenerative changes. The examiner stated the most common site of these symptoms is in the knees, and that the Veteran's pyrophosphate deposition disease was also known to cause medial meniscus degeneration and early joint degeneration in patients. As such, the examiner stated the Veteran's diagnosed condition did explain the examination findings. The examiner stated it was certainly possible that the Veteran's condition could have rendered his knees more susceptible to the traumatic influence of rigorous training in service. However, the examiner stated that unfortunately, incidence data for this disease in the younger population remained unknown, and the medical literature suggested it was primarily a disease found in older patients. The examiner further stated that if the knees were being affected by the condition, one would expect that the condition would come to medical attention either in or shortly after service, and this was not found in the Veteran's records. Ultimately, the examiner concluded that the combination of lacking in-service data, lacking early post-service data, and the unknowns regarding the expression of chondocalcinosis in younger patients rendered a medical opinion impossible. The Board notes that, although the VA examination report shows the examiner was a physician, there is no indication he was an orthopedist, as instructed by the Board in the August 2013 remand. Instead, an internet search indicates the examiner's specialization was in emergency medicine. For this reason, and due to the significant lack of clarity provided by the March 2015 examination report regarding the etiology of the Veteran's bilateral knee disabilities, the Board finds a remand is warranted in order to ensure the Veteran is afforded an examination by a specialist in orthopedic medicine, as contemplated by the Board's August 2013 remand. Compensation under 38 U.S.C.A. § 1151 The Board notes that when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2016). To substantiate a claim for disability compensation under 38 U.S.C. § 1151 filed on or after October 1, 1997, as here, it must be shown that the VA treatment in question resulted in additional disability or death and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability or death was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2016). To establish actual causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that he had additional disability or died does not establish cause. 38 C.F.R. § 3.361(c) (2016). To establish that fault on the part of VA caused the additional disability or death, it must be shown that VA hospital care, medical or surgical treatment or examination caused a veteran's additional disability and that VA failed to exercise the degree of care expected of a reasonable health care provider, or furnished the hospital care, medical treatment, or surgery without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have seen. 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. 38 C.F.R. § 3.361(d)(2) (2016). The Veteran contends he has bilateral lower extremity peripheral neuropathy which was caused by Amlodipine, a blood pressure medication, prescribed to him at a VA facility in 2010. He has asserted he took the medication for a month or so, at which point he noticed his feet had swollen so badly that his shoes no longer fit. He then made an appointment at the VA Medical Center (VAMC) in Lexington, Kentucky, and was told he had peripheral neuropathy. Once he stopped taking Amlodipine, the swelling went away, but other symptoms, including nerve damage and cold, hot, prickly, and dead areas in both feet have remained. In part, the Veteran contends that, because 8.3 percent of patients are allergic to Amlodipine, an allergy test should have been performed prior to prescribing him the medication. VA treatment records show Amlodipine was listed among the Veteran's allergies after discontinuance of the medication in 2010. A VA medical opinion was obtained in November 2014 to address the Veteran's claim. The examiner first cited medical literature for the proposition that peripheral neuropathy or paresthesia occurred in less than 1 percent but greater than 0.1 percent of patients in controlled clinical trials using Amlodipine. The examiner stated that a causal relationship between Amlodipine and peripheral neuropathy was uncertain after decades of use in the general population. The examiner stated that this fact "made a nexus in the case of this medical opinion less likely than not." The examiner then cited medical records showing the Veteran denied numbness and tingling in his lower extremities in May 2011, and reported normal sensation in September 2013. The examiner stated that the Veteran's transient lower extremity edema and peripheral neuropathy symptoms were at least as likely as not caused by his Amlodipine, but that there were no further complaints of symptoms following discontinuance of the medication. The examiner stated that, in short, the Veteran had transient neuropathic symptoms that appeared to have resolved after stopping Amlodipine, and there did not appear to have been any residual effect. The examiner further stated it was less likely than not that the Veteran's transient lower extremity edema and peripheral neuropathy were the result of negligence on the part of VA. In this regard, the examiner stated that any medication can have a side effect, and the fact that the Veteran suffered transient symptoms from Amlodipine was not an example of negligence, incompetence, or poor treatment. The examiner further stated that Amlodipine is a generally safe medication that has been on the market for decades, and it was not considered a risky or unsafe choice in most patients. The examiner stated there was nothing about the Veteran's medical situation prior to prescription of the medication that would have indicated the medication should not be used. The examiner stated the Veteran had a side effect that was not permanent, and that resolved when he stopped the medication. The examiner further stated that if the Veteran were to have ongoing edema or neurologic symptoms, it would be less likely than not due to Amlodipine, since he no longer took the medication, and an online Google Scholar search showed no information to support permanency of edema or neurologic symptoms after discontinuance of Amlodipine. The Board first notes that the November 2014 examiner's findings followed a review of the Veteran's records, but not a physical examination. The Board notes the examiner's finding that the Veteran no longer had bilateral lower extremity peripheral neuropathy is directly contradicted by abnormal electromyogram (EMG) testing conducted in December 2014, which resulted in a recommendation of a neurologic consult and a diagnosis of peripheral polyneuropathy in February 2015. The examiner's finding is also contradicted by the Veteran's statements throughout the period of the claim to the effect that his lower extremity neurologic symptoms never subsided. In this regard, the Veteran clarified in statements submitted in February 2015 that his prior reports of normal sensation and a lack of numbness and tingling relied on by the examiner referred only to symptoms caused by a lower back disability. Furthermore, the Veteran was afforded a VA peripheral nerves examination in May 2015, and the examiner provided a diagnosis, in pertinent part, of bilateral lower extremity peripheral neuropathy. The examiner noted the Veteran's assertion that his symptoms had their onset when he began taking Amlodipine, but the examiner provided no medical opinion on the matter. The Board notes the November 2014 examiner's opinion was based on his finding that the Veteran no longer had bilateral lower extremity peripheral neuropathy, a finding which is contradicted by the weight of the medical evidence of record. To the extent the examiner opined that any ongoing neurologic symptoms were unrelated to Amlodipine, the Board finds the opinion to be inadequate because the examiner failed to propose any alternate etiology for the Veteran's symptoms. The Board further notes that although the examiner offered an opinion as to whether the Veteran's neurologic symptoms were due to VA negligence, he provided no opinion as to whether the symptoms were a reasonably foreseeable result of prescribing Amlodipine. Due to the significant lack of clarity regarding the etiology of the Veteran's bilateral lower extremity peripheral neuropathy, and the inadequacies in the VA examination report noted above, the Board finds a remand is warranted in order to afford the Veteran an additional VA examination by a neurologist, who may be able to offer more specialized insight into these questions. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by an orthopedist. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner should first confirm he or she is an orthopedist. Following a review of the record and an examination of the Veteran, the examiner should identify all right and left knee disabilities present throughout the period of the claim. For any right or left knee disability present during the period of the claim, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability had its clinical onset during service or is otherwise related to the Veteran's military service, to include his participation in rigorous basic training exercises during service. In providing his or her opinion, the examiner must address the Veteran's competent lay statements to the effect that he experienced bilateral knee pain during service. The examiner must provide a rationale for any proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, afford the Veteran a VA examination by a neurologist to determine the nature and etiology of his bilateral lower extremity peripheral neuropathy. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner should first confirm that he or she is a neurologist. Following a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral lower extremity peripheral neuropathy is proximately due to use of Amlodipine in 2010 as directed by a VA physician. In providing his or her opinion, the examiner must address the Veteran's lay statements to the effect that prior to his 2010 use of Amlodipine, he never experienced any bilateral lower extremity neurologic symptoms, but that these symptoms have persisted from his 2010 use of the medication to the present day. If the examiner determines the Veteran's bilateral lower extremity peripheral neuropathy is due to Amlodipine usage, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the bilateral lower extremity peripheral neuropathy is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in providing medical treatment. In providing his or her opinion, the examiner must address the Veteran's lay statements to the effect that approximately 8 percent of the population is allergic to Amlodipine, and an allergy test should have been performed prior to prescribing him the medication. The examiner must also determine whether the Veteran's bilateral lower extremity peripheral neuropathy was a reasonably foreseeable result of the 2010 prescription of Amlodipine. In providing his or her opinion, the examiner must address the medical literature cited by the November 2014 VA examiner to the effect that less than 1 percent, but more than 0.1 percent of patients using Amlodipine experience peripheral neuropathy. The examiner is advised that in determining whether an event is unforeseeable, 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. The examiner must provide a rationale for any proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Undertake any other development determined to be warranted. 5. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).