Citation Nr: 21010830 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-42 626A DATE: February 25, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for impaired cognition and brain damage from anoxic injury, on an accrued or substituted basis, is remanded. REASONS FOR REMAND The Veteran had active service from November 1965 to October 1969. He died in April 2020. The appellant is the Veteran’s widow who has been substituted for the Veteran in this appeal. This claim was previously remanded in November 2020. 1. Entitlement to compensation under 38 U.S.C. § 1151 for impaired cognition and brain damage from anoxic injury on an accrued or substituted basis is remanded. The appellant contends that the Veteran had an anoxic brain injury due to treatment at the VA Medical Center in Dallas in May 2012. Treatment records reflect that the Veteran was admitted to the VA Medical Center in Dallas in May 2012. A history and physical noted that the Veteran presented to the hospital in May 2012 after one week of hallucinations. Prior to his admission, the Veteran was given Halcion at a dental appointment and was acting increasingly paranoid and was having hallucinations. He was admitted to the ward service in April 2012 but left against medical advice. The Veteran was seen for a neurology consultation in May 2012. He was transferred from mental health after having altered mental status. ICU was asked to evaluate him for transfer after increasing respiratory distress and unresponsiveness. He was subsequently intubated. A July 2012 VA respiratory treatment record noted that the respiratory failure was believed to be associated with serotonin syndrome. A VA treatment record dated in July 2014 noted that the Veteran had motor apraxia that may be secondary to anoxic brain injury and/or underlying degenerative brain disorder. In a November 2014 progress note, a VA neurologist from the Stockton VA noted that the Veteran had baseline cognitive impairment and then developed acute worsening after hospitalization that required intubation. The record noted a probable additional anoxic brain injury as well as mild Parkinsonism most likely secondary to brain injury. The November 2014 medical opinion record did not address whether probable anoxic brain injury was due to carelessness, negligence, or an event that was not reasonably foreseeable in the VA treatment. In order to establish entitlement to benefits under 38 U.S.C. § 1151, the evidence must show "additional disability" as a result of the treatment in question due to carelessness, negligence, lack of proper skill, error in judgment or an unforeseen event. A VA treatment record dated in April 2017 noted cognitive dysfunction status post anoxic brain damage. A VA medical examination and opinion was obtained in May 2017. The examiner opined that there is no definite evidence that the Veteran suffered an anoxic brain damage from his hospitalization at the VA in May 2012. The examiner noted that the neurologist who followed the Veteran at the Dallas VA did not diagnose anoxic brain damage. It was noted that treatment records dated in June 2015 from the Sacramento VA noted Lewy Body dementia, but it was unclear if the Veteran had anoxic brain injury. Medical records from UC Davis noted cognitive decline since 2007. The examiner noted that a private physician opined that the Veteran’s cognitive decline was due to Lewy Body dementia The May 2017 opinion concluded that the Veteran did not have a clear diagnosis of anoxic brain injury. A remand for an addendum medical opinion is necessary. The examiner must consider the VA treatment records reflecting a diagnosis of anoxic brain injury. The examiner must address whether anoxic brain injury was due to carelessness, negligence, or an event that was not reasonably foreseeable in the VA treatment in May 2012. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate physician. The examiner should opine whether the VA medical treatment at the Dallas VAMC in May 2012 caused the additional disability of anoxic brain injury. If the examiner determines that the May 2012 treatment caused anoxic brain injury, the examiner should offer an opinion as to whether the proximate cause of any such disability was the result of either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment or (ii) an event not reasonably foreseeable. • The examiner should consider the appellant’s contentions that the Veteran’s memory problems began after his VA hospitalization in May 2012. See May 2017 VA examination. • The examiner should consider the appellant’s contention that the Veteran had a bad reaction to medication and had respiratory arrest. The examiner should address the appellant’s contention that the Veteran had an anoxic brain injury due to VA’s delay in intubating him during his hospitalization in May 2012. See July 2017 statement. • The examiner should provide a detailed rationale for the opinion. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.