Citation Nr: 21023397 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-43 827 DATE: April 20, 2021 REMANDED Entitlement to compensation under 38U.S.C. §1151 for bilateral lower extremity peripheral neuropathy resulting from prescription of Amlodipine for high blood pressure at a Department of Veterans Affairs (VA) facility is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from September 1962 to December 1965. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2008, July 2009, and November 2014 rating decisions of a VA Regional Office (RO). The case was most recently before the Board in March 2017 and May 2020. The Board remanded the issues for further development. The issues have returned to the Board. The Board notes that following the return of this matter to the Board, the case has not been forwarded to Disabled American Veterans (DAV), the Veteran’s representative, for the preparation of an informal hearing presentation (IHP). However, all claims on appeal are being remanded below; thus, the Veteran’s representative will have an opportunity to submit additional argument on remand. Therefore, the Veteran is not prejudiced by the Board proceeding with the claims in this regard, at this juncture. 1. Entitlement to compensation under 38U.S.C. §1151 for bilateral lower extremity peripheral neuropathy resulting from prescription of Amlodipine for high blood pressure at a VA facility is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with an in-person VA examination with a licensed neurologist to determine whether the Veteran’s bilateral lower extremity peripheral neuropathy was at least as likely as not proximately due to the use of Amlodipine in 2010 as directed by a VA physician. The Board discussed the inadequacy of previous opinions, as they did not substantially comply with the Board’s March 2017 remand directives. Specifically, a September 2017 VA opinion of a licensed neurologist stated that the Veteran’s condition was caused by his use of the prescribed Amlodipine, but there was no carelessness on behalf of VA. The examiner failed to comment on the Veteran’s lay statements and the medical literature cited by a November 2014 VA examiner. An April 2019 VA examination was also deemed inadequate, as it was conducted by a nurse practitioner and not a licensed neurologist. Likewise, a January 2020 VA addendum opinion was also deemed inadequate, as it was provided by a family medicine specialist and not a neurologist. In light of the deficiencies of the previous VA opinions, the May 2020 remand directed that the new examination must be conducted by a licensed neurologist, as was required by the March 2017 remand directives. Furthermore, in providing his or her opinion, the examiner was advised that the Veteran’s competent lay statements must be discussed. Specifically, the examiner was required to discuss the Veteran’s assertion that his bilateral lower extremity neurologic symptoms arose when he started using Amlodipine, and that he did not suffer such symptoms prior to 2010, or the beginning of him taking this medication. Pursuant to the May 2020 Board remand instructions, a VA peripheral nerves conditions examination was conducted in January 2021 by a licensed neurologist, the same neurologist who conducted the September 2017 VA examination. As previously indicated, during the September 2017 examination, the examiner opined that the Veteran’s peripheral neuropathy was caused by his use of the prescribed Amlodipine, but found that there was no carelessness on behalf of VA. The examiner failed to comment on the Veteran’s lay statements and the medical literature cited by a November 2014 VA examiner. In the January 2021 opinion, in direct contradiction to his September 2017 opinion, the examiner opined that the Veteran’s condition was less likely than not due to the use of Amlodipine, as Amlodipine rarely cause neuropathy. The examiner stated that other cases of neuropathy could have been related to gastrointestinal disturbances, history of parathyroidectomy, and also being idiopathic. Just as the examiner failed to discuss the Veteran’s lay statements in September 2017, the January 2021 opinion fails to provide any discussion reconciling such opinion with the noted lay and medical evidence of record, to include his own contradicting findings from the earlier examination in 2017. As such, the January 2021 opinion is inadequate because it did not consider all relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, to ensure compliance with the directives of the May 2020 remand, a VA addendum medical opinion should be obtained, which includes adequate supporting rationale. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. In May 2020, the Board remanded the issues of entitlement to service connection for a right knee disability and a left knee disability to afford the Veteran a new VA knee examination, as the previous examinations of record were inadequate. See March 2017 and May 2020 Board remands. Accordingly, the Veteran was scheduled for a VA knee examination in February 2021, for which he did not report. It does not appear that the Veteran provided a statement as to the reason for missing the examination. As the case requires remand anyway, and as the etiology of the claimed knee disorders are unclear due to the inadequacy of the previous opinions of record, the Board finds that extending him the benefit of another opportunity to appear for the required examination is warranted. The Veteran is advised that any findings reported during this new VA examination will be critical to the evaluation of his claimed disabilities, and that VA’s duty to assist is not a one-way street. He also has an obligation to cooperate with VA in ensuring that duty is satisfied. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). Furthermore, any failure to report for any scheduled examination without good cause may result in an adverse determination. 38 C.F.R. § 3.655. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, obtain an addendum opinion from a different neurologist who did not provide the September 2017 and January 2021 VA opinions as to the Veteran’s bilateral lower extremity peripheral neuropathy. The Veteran’s claims file and a copy of this remand should be provided to the neurologist and the examination report should reflect that these items were reviewed. The neurologist is to provide an opinion as to the following: (a) Did the Veteran incur an additional disability of bilateral lower extremity peripheral neuropathy proximately caused by the use of Amlodipine in 2010 as directed by a VA physician? The examiner must address the Veteran’s competent lay statements. Specifically, the examiner must address the Veteran’s statements to the effect that prior to his 2010 use of Amlodipine, he never experienced any bilateral lower extremity neurologic symptoms, but that these symptoms have persisted from his 2010 use of this medication to the present day. Also, the examiner is requested to address any and all conflicting opinions explicitly, to include the September 2017 and January 2021 VA opinions. (b) If an additional disability is found, was this additional disability, proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment or examination? The examiner must address the Veteran’s lay statements to the effect that approximately 8 percent of the population is allergic to Amlodipine and an allergy test should have been performed prior to prescribing him the medication. (c) Was any additional disability, (identified above) proximately caused by VA treatment an event not reasonably foreseeable? Further, was the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, schedule the Veteran for an examination by a licensed orthopedist to determine the nature and etiology of any knee disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner must take a history from the Veteran regarding observable symptomatology, and consider such lay statements as competent. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner should identify all disabilities of the knees. For each diagnosed disability of the right and left knees, the examiner must offer an opinion as to whether it is at least as likely as not that the disorder manifested during, or as a result of active military service, to include his participation in rigorous basic training exercises during service. The examiner must address all of the Veteran’s statements and reports in relation to the claimed disabilities, specifically the Veteran’s statements regarding experiencing bilateral knee pain during service. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.