Citation Nr: 21073991 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-30 259 DATE: December 13, 2021 REMANDED Entitlement to compensation under 38 U.S.C. §1151 for residuals of a February 10, 2014 fall that occurred during treatment at VA, to include a head injury and headaches, on the basis of substitution is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to February 1969. The Veteran passed away in October 2019, and the Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision. In October 2018, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the Veteran's claims file. In June 2020, the Board remanded the claim for further development. Specifically, the Board directed that the RO request any necessary authorization and obtain any outstanding treatment records, to include any Vista Imaging records; obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran; and request an advisory opinion pursuant to 38 U.S.C. §5109 that addresses the claim for compensation under 38U.S.C. §1151 for residuals of a February 10, 2014 fall that occurred during the Veteran's treatment at VA, to include a head injury and headaches. The RO provided the Appellant with a General Release for Medical Provider Information to the Department of Veterans Affairs in July 2020. In a July 2020 Report of General Information, the Appellant stated that she had no further information to give pertaining to the July 2020 notification letter and advised that she would like to move forward with the claim. In August 2020, the SSA National Records Center reported that there were no medical records. Also, variously dated SSA Profile and Benefit Data reports show that no SSI disability determination had been made. Additionally, a medical opinion and addendum medical opinion were obtained in November 2020 and May 2021, respectively. In an August 2021 remand, the Board found those opinions inadequate, and remanded the matter for further development, pursuant to which an advisory medical opinion was obtained in October 2021. The matter now returns to the Board for appellate review. 1. Entitlement to compensation under 38 U.S.C. §1151 for residuals of a February 10, 2014 fall that occurred during treatment at VA, to include a head injury and headaches is remanded. Although it regrets the additional delay, the Board must again remand this matter in order to secure compliance with previous remand directives. The Board made it plain in its August 2021 remand that the VA opinions of record were inadequate due to the failure explicitly to address the enumerated questions posed in previous remand directives, including with regard to an August 2019 Veteran's statement; statements made by the Veteran and his wife at an October 2018 Board hearing; a July 2014 VA treatment record reflecting worsening headache symptoms; and the representative's assertion with regard to nummular headaches and their association with facial and specifically TMJ trauma at the Board hearing. The October 2021 advisory opinion obtained pursuant to the most recent Board remand again asserts only in general terms that the Veteran's February 2014 fall following surgery at the Indianapolis VAMC was not causative for subsequent headaches and memory loss, nor an aggravating factor in the worsening of those conditions, without addressing explicitly the enumerated questions from prior remands. The failure to address specifically these questions renders the opinion inadequate. The Board cannot adjudicate this matter absent compliance with its remand directives, and the matter must again be remanded in order to secure an adequate medical opinion. The matters are REMANDED for the following action: 1. Return the medical file to the examiner who submitted the October 2021 advisory opinion, or to another qualified examiner if necessary. The examiner is again advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this explicitly with a fully reasoned explanation. The examiner should provide an opinion as to the following questions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran had any additional disability, to include headaches and a head injury, that was caused by his February 10, 2014 fall. (b) For each identified additional disability, the examiner should state whether the additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. (c) Notwithstanding any informed consent documents, the examiner should also state whether any additional disability was a reasonably foreseeable outcome of the February 10, 2014 treatment at VA based upon the specific facts and circumstances of this Veteran's case. In providing an opinion the examiner must address explicitly each of the following: a. the Veteran's August 2019 statement indicating that he was still sedated when he attempted to dress himself prior to the fall, and the siderails of the bed were down when he transferred from the bed; b. the Veteran's October 2018 Board hearing testimony indicating that prior to the fall, he was still experiencing the effects of his anesthesia and felt groggy; c. the October 2018 Board hearing testimony from the Veteran's wife stating that he fell directly to the floor on February 10, 2014, indicating that his fall was not broken by a wall; d. the October 2018 Board hearing testimony from the Veteran and his wife indicating that he felt "out of it" after the fall, and the Veteran might have lost consciousness; e. the October 2018 Board hearing testimony and statements from the Veteran and his wife dated in April 2014 and April 2015 indicating that after the fall, the Veteran slept more, experienced swelling in his right cheek; suffered from headaches, had chronic dizziness, and experienced problems with his neck and shoulders; f. the July 18, 2014 VA treatment record that stated that although the Veteran had experienced some problems with headaches in the past, those headaches had not been like his current headaches; g. the March 17, 2017 VA treatment record in which the Veteran reported having migraine headaches 3 to 4 times a month; and h. he representative's assertion from the October 2018 Board hearing transcript that nummular headaches have an association with facial trauma, particularly dental trauma and temporomandibular joint dysfunction (TMJ); and the Veteran had hit his face close to the area where TMJ occurs on February 10, 2014. The examiner is again reminded that each of the above-enumerated lay statements have been identified as competent evidence in this matter, and each must be addressed individually. 2. Then re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.