Citation Nr: 21027353 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-17 420 DATE: May 5, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prescription medication Simvastatin is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1963 to December 1963. In February 2020, the Veteran testified before the undersigned Veteran's Law Judge (VLJ) on this issue. A transcript of this hearing has been associated with the claims file. The Veteran's claim was remanded by the Board of Veterans Appeals (Board) in August 2020 for an examination and opinion on the Veteran's claim. Unfortunately, the opinion is inadequate, and another remand is required. 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prescription medication Simvastatin is remanded. The Veteran contends that he has residual side effects from taking the medication Simvastin for his non-service-connected high cholesterol, as prescribed by VA physicians. At his hearing, the Veteran testified that he still has the following conditions: muscle spasms, fatigue, shortness of breath, and memory problems. In compliance with the remand instructions, the Veteran was provided several examinations in connection with his asserted symptoms of muscle spasms, fatigue, shortness of breath, and memory problems. After examination, the VA clinicians who performed the examinations stated that the Veteran did not have any diagnosed conditions related to muscle spasms, fatigue, shortness of breath, and memory problems. Further, the Veteran had no functional limitations related to the symptoms. The clinician who performed the psychiatric examination stated that according to research she cited, statin drugs, such as Simvastin, were not shown to be related to memory loss and that research showed that the prescription improved memory. The clinician stated that the Veteran's memory loss could "easily be attributable to the Veteran's service-connected PTSD and/or his age." Further, the clinician stated as follows: "the veteran does report muscle spasms and sweating due to the Simvastin and his doctor has changed his medications because of that. As I am not a medical doctor, I cannot comment on these symptoms and whether or not they are caused by the Simvastin. In addition, the Veteran's muscle spasms and sweating are not found to cause functional disability for the Veteran." As for the muscle spasms, fatigue, and shortness of breath, another VA clinician gave the opinion that because the Veteran had no additional disability, the clinician answered the questions posed in the negative. After a review of the examinations and record, the Board finds that a remand for an addendum opinion is required. In contrast to the psychiatric opinion, the non-psychiatric opinion did not cite any research in support of their position. Importantly, the Veteran asserts that his symptoms of muscle spasms, fatigue, and shortness of breath were side-effects from taking the medication. Without addressing the known side-effects of the medication, the Board does not have the necessary information to address the Veteran's claim. The Board recognizes that the examiner found no functional impairment related to the Veteran's asserted muscle spasms, fatigue, and shortness of breath disabilities. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (where the evidence shows that symptoms reach the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). However, the Board finds the examiner provided insufficient rationale for why the Veteran's respiratory problems do not rise to the level of functional impairment: the post-bronchodilator values records at the examination are consistent with ratings for 60 percent under Diagnostic 6600, 6603, 6604, 6825-6833, and 6840-6845. The examiner did not address whether the post-bronchodilator values can be attributed to the Veteran's shortness of breath and the cause of the shortness of breath. 38 C.F.R. § 4.96 (d)(5). Given the above, the Veteran's claim must be remanded for another opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran's claim. The file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Attention is invited to the Veteran's description of his symptoms: See document labeled "Correspondence", received January 4, 2013; and document labeled "Hearing Transcript", received February 3, 2020 (e.g., muscle spasms, fatigue, and shortness of breath). No addendum opinion is needed on the Veteran's claim of memory problems. In answering the below questions, the examiner should address the known risk factors of Simvastin, any research on the topic, and any other potential causes for the Veteran's asserted symptoms. Based on a comprehensive review of the claims file, the examiner is asked to opine as to whether: (a) Is it at least as likely as not that the Veteran has an additional disability (side-effects) from taking the medication Simvastin, to include residual symptoms that cause a functional impairment? The clinician should specifically address the post-bronchodilator values of the pulmonary function test from the October 2020 VA examination. (b) Is at least as likely as not that any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? (c) Is at least as likely as not that any additional disability was the result of an event that could not reasonably have been foreseen or anticipated by a competent and prudent health care provider in relation to prescribing and providing adequate warning about the side-effects of Simvastin? (d) Is at least as likely as not that any additional disability was the result of failure on the part of VA to timely diagnose side-effects and/or properly treat the claimed disease or disability, allowing the disease or disability to continue to progress? When considering whether the identified additional disability was caused by an event not reasonably foreseeable, the physician should address whether a "reasonable health care provider" would have considered the Veteran's claimed side-effects from Simvastin to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with such treatment, regardless of what risks the treatment provider actually anticipated and disclosed. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.