Citation Nr: 1103640 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 05-29 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on account of being housebound. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for a low back disorder. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for a bilateral lower extremity (feet and legs) neuropathy. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for bilateral hip disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and J.W. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2008, a travel board hearing was held before the undersigned in Muskogee, Oklahoma. A transcript of the hearing is associated with the Veteran's claims file. The claim was remanded by the Board in January 2009. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran is claiming compensation benefits for residuals of a low back injury, bilateral lower extremity neuropathy, and a hip disability that he asserts are the result of improper treatment rendered by VA in 2002. In January 2009, the issues were remanded for a medical opinion regarding whether it is at least as likely as not that VA failed to timely diagnose and properly treat the Veteran following a twisting injury that was incurred in 2001 and, if so, whether this failure caused additional disability including disc disease in the lower back, additional neuropathy disability of the lower extremities, and/or a bilateral hip disorder and, if so, whether any additional disability was proximately caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing this medical treatment, or was the result of an event that was not reasonably foreseeable. The Veteran was examined by VA in March 2009, with the examiner rendering an opinion that there was no failure on the part of the VAMC to diagnose or treat the Veteran following his reported twisting injury in 2001. The Veteran's representative has argued that this examination report is not adequate for several reasons. It is argued that the opinion was rendered by a physician who was one of those who rendered treatment to the Veteran in 2002, and it is requested that a medical opinion be obtained from a medical care provider who was not involved in the care at question. The representative also points out that the negative medical opinion is based on a conclusion that a specific injury as a result of the incident that reportedly occurred could not be specifically identified. The representative states that this ignores evidence already in the claims file that the Veteran sustained a sprain of the lumbar spine in July 2001 and that VA "could have improved his outcome" following this injury. The Board finds that reliance on a medical opinion that is based on a finding that no specific injury occurred in July 2001, when VA has already acknowledged that the injury occurred, is not appropriate. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for a medical examination from a VA medical care provider who has not previously treated the Veteran. Specifically, the VA medical examiner should be requested to provide an opinion as to: A) whether it is at least as likely as not (a 50 percent or greater probability) that VA failed to timely diagnose and properly treat the veteran following a twisting injury that was incurred in 2001 and, if so, B) whether this failure caused additionally disability, including disc disease in the lower back, and/or any additional neuropathy disability of the lower extremities and/or a bilateral hip disorder, and, if so, C) whether any additional disability was proximately caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing this medical treatment, or was the result of an event that was not reasonably foreseeable. The relevant documents in the claims folder should be reviewed in conjunction with such evaluation, to include X-rays and MRI studies of the Veteran's spine from the time of the injury in 2001, as well as documentation of the Veteran's symptoms prior to the injury in 2001 and thereafter. The examination report should indicate that such review was performed. All opinions expressed should be accompanied by rationales, to include specific references to the evidence of record where appropriate. 2. Thereafter, readjudicate the Veteran's claims of entitlement to compensation under 38 U.S.C.A. § 1151 on appeal and the claim for special monthly compensation that must remain in abeyance pending the completion of this development. If any benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).