Citation Nr: 23016372 Decision Date: 03/17/23 Archive Date: 03/17/23 DOCKET NO. 19-12 403A DATE: March 17, 2023 REMANDED Entitlement to compensation under 38 U.S.C. §1151 for lumbar spine condition is remanded. Entitlement to compensation under 38 U.S.C. §1151 for right lower extremity muscle atrophy is remanded. Entitlement to compensation under 38 U.S.C. §1151 for right lower extremity neurological condition to include peripheral neuropathy and sciatica is remanded. Entitlement to compensation under 38 U.S.C. §1151 for left lower extremity neurological condition to include peripheral neuropathy and sciatica is remanded. Entitlement to compensation under 38 U.S.C. §1151 for left lower extremity muscle atrophy is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1962 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. The Board remanded this matter in July 2020 and March 2020 for further development. In July 2021, the Board denied the issues on appeal. The Veteran appealed the July 2021 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In a May 2022 Joint Motion for Remand (JMR), the Court remanded this matter for readjudication consistent with the JMR. This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.800 (c). 1. Entitlement to compensation under 38 U.S.C. §1151 for lumbar spine condition is remanded. 2. Entitlement to compensation under 38 U.S.C. §1151 for right lower extremity muscle atrophy is remanded. 3. Entitlement to compensation under 38 U.S.C. §1151 for right lower extremity neurological condition to include peripheral neuropathy and sciatica is remanded. 4. Entitlement to compensation under 38 U.S.C. §1151 for left lower extremity neurological condition to include peripheral neuropathy and sciatica is remanded. 5. Entitlement to compensation under 38 U.S.C. §1151 for left lower extremity muscle atrophy is remanded. The Veteran contends that the Memphis, Tennessee Veterans Administration Medical Center (VAMC) was negligent, failed to exercise proper judgment, and failed to provide adequate care in prescribing the drug Simvastatin to treat his high cholesterol. He further contends the risk of degenerative disc disease with sciatica and radiculopathy resulting from the drug Simvastatin was not the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. §17.32 or considered to be an ordinary risk of such treatment. In the May 2022 JMR, the Court found the April 2021 VA addendum opinions did not contain a reasoned medical explanation connecting the supporting data and conclusions regarding the Veteran's conditions necessary for adequate opinions under 38 U.S.C. §5103A. Specifically, the Court found the April 2021 opinions ultimately constitute a restatement of facts followed by a conclusion without a sufficient connection between the two. The Court also found it was unclear what the examiner meant when he repeatedly referenced 'leg pain that [Appellant] claimed[ed] goes up the level of pain.' In compliance with the August 2022 Board remand directives, addendum opinions were obtained in September 2022. The Board finds the September 2022 addendum opinions require clarification. First, the Board notes that the September 2022 examiner continued to note 'leg pain that [Appellant] claim[ed] goes up the level of pain.' However, the September 2022 addendum opinions do not reflect clarification of what the clinician means by this repeated reference. Additionally, the examiner indicated that simvastatin affects muscle but is not known to cause degeneration affecting the vertebra. While this suggests that use of Simvastatin would not cause the type of lumbar spine disorders the Veteran has, the examiner did not fully explain this finding. Accordingly, on remand, an addendum opinion further explaining this finding must be obtained. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician (and if at all possible, a clinician other than the clinician who provided the April 2021 and September 2022 opinions) regarding the Veteran's claims for compensation benefits under the provisions of 38 U.S.C. § 1151. The need for an in-person examination is left to the examiner's discretion. (a.) The examiner should opine whether the Veteran has any disabilities, including spinal stenosis, lumbar scoliosis, disc protrusion with mass effect at the L4 to L5 level, peripheral nerve impairment, sciatica, radiculopathy, and/or muscle atrophy because of VA hospital care, medical or surgical treatment, or examination, to specifically include being treated with Simvastatin. Please explain why or why not. In doing so, the examiner is asked to further explain the September 2022 examiner's statement that simvastatin affects muscle but is not known to cause degeneration affecting the vertebra. (b.) If the Veteran has any additional disabilities due to his prior use of Simvastatin, then the examiner must provide an opinion as to whether the additional disabilities are proximately the result of VA's failure to properly diagnose and/or treat, or proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA. Please explain why or why not. (c.) If the Veteran does not have any additional back or lower extremity disabilities proximately due to VA's failure to properly diagnose and/or treat; or carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part, then are any of the additional disabilities due to an event not reasonably foreseeable? That is, was the development of any of the additional disabilities the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38C.F.R. §17.32? Please explain why or why not. The examiner must provide a fully explained rationale for each of the proffered opinions. In formation of the opinions, the examiner should consider the Veteran's February 2017, November 2020, and March 2021 lay statements and the January 2020 hearing testimony which provides additional detail about his contentions. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Aoughsten, Mamie G. 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.