Citation Nr: 20043089 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 15-24 909 DATE: June 25, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity peripheral neuropathy is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to October 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is also of record. In a February 2019 decision, the Board denied entitlement to service connection for bilateral lower extremity peripheral neuropathy. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the February 2019 decision. As such, the matters now return to the Board for appellate consideration. 1. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity peripheral neuropathy is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity peripheral neuropathy is remanded. The Parties agreed in the January 2020 JMR that the Board failed to obtain an adequate medical opinion. The Parties noted that in the December 2013 opinion the VA examiner noted that the Veteran’s lithium level was “appropriately checked on initial psychiatric assessment.” However, in June 2015, Dr. E.L., a VA medical center staff physician, opined that the Veteran’s lithium levels should have been checked upon the presentation of his symptoms in June 2007. There is no opinion of record addressing whether in failing to check the Veteran’s lithium levels in June 2007 when the Veteran presented with symptoms of slurred speech and falls, VA was negligent or failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(d)(1). As such, the Parties agreed that on remand VA should obtain an opinion addressing the adequacy and frequency of testing Appellant’s lithium levels, and whether there was any negligence on the part of VA. The matters are REMANDED for the following action: 1. Refer the claims file to an appropriate VA physician to obtain an opinion regarding the Veteran’s 38 U.S.C. § § 1151 claim concerning right and left lower extremity peripheral neuropathy. The physician must review the claims file, including a copy of this REMAND. The physician should discuss the Veteran’s statements in support of his claim and prior VA medical evidence of record. The examiner should address the following: (a.) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bilateral lower extremity peripheral neuropathy was caused by the adequacy and frequency of testing the Veteran’s lithium levels, specifically to include failing to check the Veteran’s lithium levels in June 2007 when the Veteran presented with symptoms of slurred speech and falls; and was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (b.) If the response to question (a) is negative, is the Veteran’s bilateral lower extremity peripheral neuropathy caused by VA treatment that is due to an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a “reasonable health care provider” would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. 2. Finally, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and his attorney with a supplemental statement of the case and allow them an opportunity to respond. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.