Citation Nr: 21015612 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-40 295 DATE: March 17, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity neuropathy is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1968 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the appeal in April 2019. Remand is necessary for additional development. In this regard, the October 2019 VA examiner opined that the Veteran’s neuropathy was more likely due to his back disability instead of Avelox use and stated that several other providers did as well. However, Avelox-induced neuropathy has been consistently noted throughout the treatment records and the examiner did not reconcile these findings. Therefore, an independent medical opinion is needed on remand, and any outstanding treatment records should be secured. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Then request an independent medical opinion pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328 addressing the etiology of the Veteran’s lower extremity neuropathy. The entire claims file should be made available to the examiner. After a review of the entire claims file, including the December 2018 Board Hearing Transcript, the examiner is asked to address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include lower extremity axonal motor sensory neuropathy and/or peripheral neuropathy and/or arthralgias, as a result of Avelox prescribed by VA in March 2013? If so, please identify the additional disability. In addressing this question, please consider and discuss the onset of the Veteran’s neuropathy, as well as VA treatment notes specifically attributing axonal polyneuropathy to Avelox use. See May 2013, June 2013, July 2013, September 2014, and April 2016 VA treatment records. Specifically, please consider Dr. Griffith’s July 2013 treatment records relating neuropathy to Avelox use, and Dr. Keenan’s June 2013 statement that “it may be that the neuropathy and the arthralgias are both related to the Avelox,” as well as Dr. Mulligan’s April 2014 statement that “autoimmune phenomenon possibly related to the drug reaction and/or lower back conditions appears to be more likely the cause at hand.” (b) If additional disability exists, based upon the specific facts and circumstances of this Veteran’s case, is it at least as likely as not (50 percent probability or greater) that such additional disability: (1) was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing care? Please thoroughly explain why or why not. (2) was a reasonably foreseeable outcome of Avelox use? That is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the medication prescribed and would have disclosed such risk in connection with such treatment, regardless of what risks the treatment provider actually anticipated and disclosed? In addressing this question, please consider and discuss the precautions for Avelox cited by the Veteran’s representative in March 2021. https://www.mayoclinic.org/drugs-supplements/moxifloxacin-oral-route/precautions/drg-20072313 (last accessed March 16, 2021). A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a thorough rationale for reaching that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.