Citation Nr: 21072195 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 20-25 996 DATE: December 2, 2021 REMAND Entitlement to compensation for an additional disability, to include residuals of fall (memory loss, missing teeth, blood loss, neck problems, cut above left eye), under 38 U.S.C. § 1151 is remanded REASONS FOR REMAND The Veteran served on active duty from September 1980 to April 1987 and January 1991 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran regrettably passed away in October 2018; the Appellant is his surviving spouse and has been recognized as a valid substitute for this appeal. See April 17, 2020, VA Letter. Thus, the Appellant now stands in place of the Veteran for adjudicating this claim to completion. In April 2021, the Board remanded this claim, finding that a previous July 2018 medical opinion was inadequate and requiring the agency of original jurisdiction (AOJ) to secure a new, adequate opinion. That opinion was obtained in July 2021; however, despite the AOJ's substantial compliance, see D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998), remand still is required as will be discussed below. The Veteran claimed during his lifetime benefits under 38 U.S.C. § 1151. Specifically, he claimed that his VA prescribed medication of Xarelto caused him to sustain on December 30, 2017, a fall, whereby he struck his head, injured his neck, knocked out two teeth, leaving him with memory problems. Throughout various points, however, the Appellant has alleged that the Veteran's fall was due to various medications, namely Xarelto, Warfarin, and Pradaxa. May 18, 2020, VA Form 9; Nov. 1, 2018, Notice of Disagreement (NOD). The Board's most recent remand asked only for a medical opinion regarding the Veteran's Xarelto prescription. It failed to discuss the Appellant's specifically raised theory regarding Warfarin and Pradaxa. Thus, remand is required to secure an addendum medical opinion. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The matter is REMANDED for the following action: 1. Obtain an addendum to the July 2021 VA opinion. The addendum shall answer the following: (a.) Did the Veteran experience any additional disability caused by a fall that occurred in December 2017? In answering this question, the examiner must consider his December 2017 and January 2018 reports of dizziness and syncope resulting in a fall, to include memory loss, missing teeth, blood loss, neck problems, and a cut above the left eye. The examiner also must consider the Veteran's medical history showing diagnoses of, complaints of, and treatment for dementia, memory loss, mercury in his teeth, a tooth disorder, and a neck disorder. The examiner is reminded that, to determine whether a veteran has an "additional disability," VA compares the Veteran's condition immediately before the medical care or treatment in question to the Veteran's condition after such care has stopped. (b.) If it is found that an additional disability was caused by the fall that occurred in December 2017, the examiner should opine whether any such additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the therapy in question. When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c.) If it is found that an additional disability was caused by the fall that occurred in December 2017 and/or the Veteran's prescribed Warfarin or Pradaxa, the examiner should also provide an opinion as to whether any identified additional disability was an event that was reasonably foreseeable or an event not reasonably foreseeable, to include consideration of the Veteran's contention that his fall occurring in December 2017 was due to misconduct or negligence of his therapist, including due to the prescribed Xarelto, Warfarin, and/or Pradaxa. That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. 2. Conduct any other development deemed necessary and then readjudicate the Appellant's claim. The Appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.