Citation Nr: A21020237 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190725-24630 DATE: December 17, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151, for residuals of a traumatic brain injury (TBI) as a result of a July 2016 motor vehicle accident claimed as due to treatment received by VA, is remanded. Entitlement to service connection for disability claimed as balance problems is remanded. Preliminary Matters The Veteran served on active duty from September 1974 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision. The Veteran timely appealed this decision to the Board by requesting the Appeals Modernization Act (AMA) Hearing Review lane. The Veteran testified before a Veterans Law Judge in June 2020; a transcript of the hearing is of record. Under the AMA, when a claimant seeks appellate review through the Board's hearing docket, the Board may consider the evidence of record at the time of the original rating decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted 90 days following the hearing. 38 U.S.C. § 7113 (b). REASONS FOR REMAND Under the AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 189-90 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.802 (a)). For the reasons discussed below, the Board finds that a remand is warranted to correct a pre-decisional duty to assist error. Specially, a VA examination and medical opinion was required prior to adjudication of the claims on appeal in the July 2019 rating decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 38 U.S.C. § 1151 Claim and Balance Problems The Veteran seeks compensation pursuant to 38 U.S.C. § 1151, for residuals of a TBI sustained as a result of a July 2016 motor vehicle accident (MVA) claimed as due to treatment received by VA. Specifically, the Veteran has reported that a few days prior to his MVA, VA changed his blood pressure medication. As a result, the Veteran maintains that the side effects from the new medication could have resulted in the MVA in July 2016. Notably, however, the Veteran could not recall (presumably due to his TBI residuals) the exact nature or details of the MVA. See June 2020 Board Hearing Transcript at pg. 3. Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability was service connected. For purposes of this section, a disability or death is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct (emphasis added); and, (1) the additional disability was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination; or, in the alternative, (B) the event was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1)(A), (B). VA treatment records confirm that the Veteran sustained a TBI as a result of a MVA in July 2016. However, the Board finds that it is unclear, based on the current evidence of record, whether the Veteran's MVA (and resulting TBI) was due to the Veteran's own willful misconduct or as a result of the potential side effects caused by a change of medication prescribed by VA. In this regard, the evidence includes a VA psychology note dated July 27, 2016, approximately 10 days following the MVA. The evaluation was being conducted to determine whether admission to the CLC program for short-stay rehabilitation was warranted "following a motor vehicle collision while not wearing a seatbelt and intoxicated (alcohol)." It was further indicated that, on arrival to the University Medical Center, the Veteran's blood alcohol level was "0.279." It was noted that the Veteran had sustained a TBI as a result of the MVA. See also June 2017 VA treatment record (noting that, following the MVA, and upon EMS arrival at his local hospital, the Veteran had a GCS of 3. He was transported via Air Care to UMMC where his GCS upon arrival was 8 and blood alcohol level was 0.28 g/dL.). A May 2018 VA primary care note also indicated that the Veteran was involved in a MVA and hit a tree; his car was the only vehicle involved in the accident. In the State of Mississippi, where the Veteran's MVA occurred, drivers age 21 years or older are considered legally intoxicated when their blood alcohol level is 0.08 or more. See Mississippi Code Annotated (MCA) § 63-11-30. Mississippi law also requires that front seat operators and passengers are required to wear properly fastened safety belt systems that are manufactured in the vehicle. See MCA § 653-2-1 (1). VA treatment records also show that 3 days prior to the accident (on July 15, 2016), the Veteran's blood pressure medication (Amlodipine) was increased from 12 tablet daily to one (full) tablet daily. See VA medication list. The current evidence of record indicates that the Veteran was well over the legal blood alcohol limit for operating a vehicle and was not wearing his seat belt at the time of the accident. However, there is also evidence that the Veteran's blood pressure medication was increased only days prior to the MVA. The Veteran has not been afforded a VA examination or medical opinion regarding his claim for compensation under 38 U.S.C. § 1151. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the Veteran should be afforded a medical examination and opinion in order to assist VA in determining whether the Veteran's MVA and resulting TBI was at least as likely as not due to his own willful misconduct or caused by VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment; or, in the alternative, the event was not reasonably foreseeable. The examiner should also indicate whether the Veteran's claimed "balance problems" are a residual of the TBI or a separate diagnosis. The Board further notes that the Veteran's Social Security Administration disability records were added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims for further development, this additional evidence will be considered by the AOJ in the readjudication of the claims. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA TBI examination to obtain an opinion as to the nature and etiology of his head injury residuals. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examiner must address the following: (a.) Indicate whether the Veteran's balance problems are a residual symptoms of the Veteran's TBI. (b.) If the Veteran's balance problems are not a residual symptom of his TBI, opine as to whether it is at least as likely as not that (50 percent or greater probability) that his balance problems are caused by a change in blood pressure medication. **VA treatment records (on July 15, 2016, the Veteran's blood pressure medication (Amlodipine) was increased from 12 tablet daily to one (full) tablet daily). (c.) Provide an opinion as to whether it is at least as likely as not that (50 percent or greater probability) that the Veteran's MVA and resulting TBI was: i. The result of the Veteran's willful misconduct; or ii. Caused by hospital care, medical or surgical treatment, or examination furnished by VA; and iii. The proximate cause of the Veteran's death was either: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care or treatment, or examination; or (2) an event not reasonably foreseeable. iv. Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider and whether the Veteran received informed consent pursuant to 38 C.F.R. § 17.32 for all applicable VA care. (d.) All opinions should include a rationale consistent with the evidence of record. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.