Citation Nr: 21026359 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 20-25 996 DATE: April 30, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a fall, to include memory loss, missing teeth, blood loss, neck problems, and cut above left eye is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to April 1987, and January 1991 to June 1991, to include service in Southwest Asia. Regrettably, the Veteran died in October 2018. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Montgomery, Alabama. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a fall The appellant seeks compensation for additional disability the Veteran incurred by a fall due to side effects of negligently prescribed medication by a VA medical provider. Specifically, she asserts that the Veteran was essentially predisposed to dizziness, and that his prescription of Xarelto was negligent medical care that resulted in the fall and its resulting additional disabilities. The Board notes the Veteran had a history of dizziness, syncope, lightheadedness, neck disorders, tooth disorders, and memory loss. Notably, the Veteran previously claimed entitlement to service connection for memory loss, to include as due to his service in Southwest Asia. Additionally, he previously contended that he had memory loss due to mercury in his teeth. A VA opinion was obtained in July 2018. At that time, the examiner was unable to opine as to the Veteran’s claimed disability of residuals of fall. Specifically, she noted the Veteran had been diagnosed with syncope associated with vertigo of unknown origin, and then diagnosed with vestibulopathy secondary to benign paroxysmal positional vertigo (BPPV); and noted the Veteran had a history of atrial fibrillation and atrial flutter, which may cause lightheadedness and dizziness. Additionally, she noted the Veteran had a history of syncope of nine years. The examiner noted that the medication prescribed (Xarelto) had syncope, lightheadedness, and dizziness as possible listed side effects. However, the examiner stated she was unable to opine as to whether the claimed disability of residuals of fall were due to the medication or were caused by or became worse as a result of VA treatment because the Veteran did not report to the emergency room until several days after having syncope episodes. Therefore, providing an opinion would be based on mere speculation. Moreover, the examiner opined that she did not see where VA personnel failed to follow the appropriate standard of care; and that the documentation did not indicate that VA was untimely in diagnosing or treating any claimed disability. The Board finds that the July 2018 VA medical opinion is insufficient to decide the claim. In this regard, the examiner essentially opined that she could not provide an opinion without resorting to mere speculation, and did not indicate nor discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Additionally, the examiner did not address the Veteran’s claimed additional disabilities, did not identify nor diagnose any additional disabilities, and reconcile such diagnoses with the prior disabilities and medical history of record. Accordingly, the Board concludes that the July 2018 VA opinion is incomplete to decide the claim, and a new VA opinion should be obtained to determine the nature and etiology of the appellant’s claim. This matter is REMANDED for the following action: Obtain a medical opinion from a physician, to provide an opinion regarding the questions below. If, in the opinion of a specialist is necessary, arrange the claims file to be forwarded to such a specialist to obtain the necessary opinion. The examiner should be provided a complete copy of the claims file for review and should provide an opinion and a complete rationale regarding the following: (A) Did the Veteran experience any additional disability caused by a fall that occurred in December 2017? In answering this question, the examiner should specifically consider his December 2017 and January 2018 reports of dizziness and syncope resulting in a fall, to include memory loss, missing teeth, blood loss, neck problems, and a cut above the left eye. The examiner should also consider the Veteran’s medical history showing diagnoses of, complaints of, and treatment for dementia, memory loss, mercury in his teeth, a tooth disorder, and a neck disorder. The examiner is reminded that, to determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the medical care or treatment in question to the veteran’s condition after such care has stopped. (B) If it is found that additional disability was caused by the fall that occurred in December 2017, the examiner should opine whether any such additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the therapy in question. When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (C) If it is found that additional disability was caused by the fall that occurred in December 2017 and/or the prescribed Xarelto, the examiner should also provide an opinion as to whether any identified additional disability was an event that was reasonably foreseeable or an event not reasonably foreseeable, to include consideration of the Veteran’s contention that his fall occurring in December 2017 was due to misconduct or negligence of his therapist, including due to the prescribed Xarelto. That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.