Citation Nr: 21041284 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-16 159 DATE: July 8, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities due to a pituitary tumor and its residuals, claimed as due to VA lack of proper care/negligence in treatment for chronic headaches is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for hypertension, claimed as aggravated by VA lack of proper care/negligence in providing treatment for a pituitary tumor is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to February 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge. The Veteran's wife was also present and gave testimony. A transcript of the hearing is available in the record. In May 2021, the Veteran was notified that the Veterans Law Judge who held the April 2018 hearing is no longer available to participate in the decision. The Veteran was provided the opportunity to appear at another hearing before a different Veterans Law Judge and advised that, if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. As more than 30 days have elapsed without response from the Veteran, the Board will assume that he does not want another hearing and will proceed to consider the claims on the evidence of record. The appeal was previously remanded by the Board in July 2018 and August 2020. The appeal has since returned to the Board for further development. 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities due to a pituitary tumor and its residuals, claimed as due to VA lack of proper care/negligence in treatment for chronic headaches is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for hypertension, claimed as aggravated by VA lack of proper care/negligence in providing treatment for a pituitary tumor is remanded. The Veteran contends that he sought VA treatment for chronic headaches and hypertension. He asserts that VA was negligent in not providing appropriate treatment at the time he first sought care, including not providing an MRI to diagnose his pituitary tumor, which was later diagnosed and removed in a September 2010 procedure. The Veteran claims that his undiagnosed pituitary tumor manifested in severe headaches, problems with his vision, and a hormone imbalance. See April 2018 Hearing Transcript. During the April 2018 Board hearing and in a May 2015 statement, the Veteran reported that he had experienced headaches since 1968. The Veteran also reported experiencing decreased sexual function since service. In accordance with the August 2020 Board remand, the Agency of Original Jurisdiction (AOJ), obtained an October 2020 medical opinion. In the October 2020 medical opinion, the examiner concluded that it was less likely than not that the Veteran's pituitary tumor was caused by or worsened as a result of VA treatment, or that additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner also concluded that it was less likely than not that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner indicated that VA's diagnosis and treatment were appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, and that the standard of care was met in this case. In support of the October 2020 opinion, the examiner provided information about pituitary tumors, however, the explanation did not include a clear rationale explaining why, in this particular Veteran's case, his diagnoses of disorders relating to his tumor were not due to a failure by VA to properly diagnose the tumor. Specifically, the examiner noted that the reported incidence of headaches associated with pituitary adenomas varies from 32 to 72 percent and that symptoms caused by the tumor include headaches and decreased sexual function in men, however, he did not address the Veteran's testimony that he had experienced headaches and sexual dysfunction since service. The examiner also noted risk factors for hypertension and renal disease, but did not specifically relate these risk factors to the Veteran. The AOJ also obtained a December 2020 medical opinion from another VA clinician which found that with regard to the Veteran's current ocular health, there is no disability that resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner explained that in a June 2010 VA treatment record, the practitioner believed that headaches were a side effect of blood pressure medication and a change in dosage was suggested, and that considering that the patient was hypertensive, it was not unreasonable to assume that the headaches were related to the blood pressure and/or medication rather than a benign brain tumor. The examiner also explained that headaches are common complaints and not specific for pituitary adenoma, and that the Veteran's current diagnoses are age-related and not related to the development or progression of a pituitary adenoma. However, in a January 2021 VA examination of the thyroid, the Veteran reported that his headaches slightly improved after his tumor resection. The examination also noted a diagnosis of hypothyroidism. January 2021 VA examinations also noted that the Veteran has constipation associated with hypothyroidism and that the progression of renal disease was related to chronic ongoing hypertension. It is unclear from the December 2020 medical opinion which of the Veteran's diagnoses are age-related, and how the examiner reached that conclusion. Given the lack of rationale provided in the October 2020 and January 2020 medical opinions, a remand is required to obtain adequate medical opinions addressing the Veteran's claims. The matters are REMANDED for the following action: Obtain an opinion from a VA examiner other than the October 2020 and December 2020 VA examiners relating to the treatment of the Veteran's headaches. The claims file must be provided to and reviewed by the examiner. After reviewing the claims file, the examiner should respond to the following as clearly as possible: (a.) Identify all currently diagnosed disorders relating to the Veteran's pituitary tumor and its residuals, including hypertension, kidney disease, loss of vision, and hormone imbalance. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; from August 2012 onward. The disorder need not be present at the time of the examination; rather it is sufficient if it existed during the pendency of the claim and resolved prior to this opinion (b.) With respect to each diagnosed disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that such diagnosed disorder was caused or aggravated by a failure on VA's part to properly diagnose or treat the Veteran's pituitary tumor during VA care at the Dallas VA Medical Center prior to his diagnosis in July 2010. Please explain why or why not. If the examiner finds that headaches, hypertension, kidney disease, loss of vision, and hormone imbalances are unrelated to the Veteran's pituitary tumor, he or she must provide a clear rationale explaining why the disorders are unrelated. In providing this opinion, the examiner mut compare the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment provided by VA to that of the Veteran's condition after such care or treatment. Regarding a failure to diagnose and/or treat, the examiner should address as clearly as possible, the Veteran's contentions that his hypertension was aggravated, his vision worsened, and he suffered a hormonal imbalance. The examiner should also specifically address the Veteran's assertions during the April 2018 Board hearing and in a May 2015 statement that he experienced headaches and sexual dysfunction since service. (c.) If a relationship between any of the currently diagnosed disorders and VA treatment (to include misdiagnosis/ failure to treat) is shown, the examiner must then provide an opinion for each as to whether it is at least as likely as not (50 percent probability or greater) that such disabilities and/or additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. In other words, did VA providers fail to exercise the degree of care that would be expected of a reasonable health care provider, either through action or inaction? (d.) If it is found that there are additional disabilities that were caused by or aggravated by a failure on VA's part to properly diagnose or treat the Veteran, was the disability an event that was or was not reasonably foreseeable? When addressing whether the event was an event that was or was not reasonably foreseeable, the examiner must focus on what a reasonable health care provider would have foreseen, and not whether the specific event was actually foreseen. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.