Citation Nr: 1117751 Decision Date: 05/09/11 Archive Date: 05/17/11 DOCKET NO. 06-24 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a brain disorder requiring surgery, to include as secondary to a fall in service. 2. Entitlement to service connection for a paralyzing disorder, to include as secondary to a fall in service. 3. Entitlement to service connection for a spinal cord disorder, to include as secondary to a fall in service. 4. Entitlement to service connection for headaches, to include as secondary to a fall in service. 5. Entitlement to service connection for hemorrhoids, to include as secondary to a fall in service. 6. Entitlement to service connection for stomach ulcers, to include as secondary to a fall in service. 7. Entitlement to special monthly compensation (SMC) based on the Veteran's need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Katrina J. Eagle, Esquire WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to September 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Veteran testified at the RO before a Decision Review Officer (DRO). A copy of the transcript is of record. In December 2008, the Veteran testified at a travel board before the undersigned Veterans Law Judge. A copy of the transcript is of record. At the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304 (c) (2010). In February 2009, the Board remanded the Veteran's claims for additional development and adjudicative action. The case was returned to the Board for further appellate review. In September 2009, the Board denied the Veteran's service connection claims and entitlement to SMC based on the need for regular aid attendance of another person. The Veteran appealed the Board's September 2009 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated November 2010, the Court granted a Joint Motion for Remand, vacated the September 2009 Board decision, and remanded the case for compliance with the terms of the joint motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Pursuant to the November 2010 Joint Motion for Remand, and upon preliminary review of the record with respect to the Veteran's claims on appeal, further development is required prior to final appellate review. The Veteran contends that in May 1971, he fell from a cliff while he was taking photographs of airmen during a day off in Guam. He explained that he lost his balance, fell backwards, hit his head, and rolled down a coral embankment. He incurred bruises and scratches due to the fall, and was hospitalized at sick bay for approximately one month. After his discharge from service, the Veteran indicated that he began to incur what he believed to be prostate-related problems, including difficulty urinating, balance problems, weakness in his legs, and elevated liver function tests. In August 1996 and September 1996, the Veteran underwent a series of laboratory testing, including a neurological multi-system evaluation, which resulted in a diagnosis of intracranial arteriovenous malformation (AVM). Thereafter, the Veteran underwent two brain surgeries in 1996 and 1997, which resulted in paraplegia. The Veteran asserts that the in-service fall caused his intracranial AVM, paralyzing disorder, spinal disorder, headaches, hemorrhoids, and stomach ulcers. In a December 2004 rating decision, the RO denied service connection for brain surgeries, as residuals of an in-service fall. The RO noted that service treatment records failed to show complaints or treatment due to a fall in 1971. The RO acknowledged post-service treatment records showing that the Veteran was paraplegic and wheelchair bound, but determined that without in-service evidence of the claimed fall, service connection must be denied for brain surgeries, as residuals of an in-service fall. The Veteran submitted a timely notice of disagreement (NOD), a statement of the case (SOC) was issued in May 2006, and the Veteran appealed therefrom in June 2006. In February 2009, the Board determined that the claims were not ripe for appellate adjudication on the merits. According to the February 2009 remand, the Board noted that service treatment records contain multiple references to a fall during the Veteran's pre-teen years, which resulted in a concussion. Although the Veteran did not report the claimed in-service fall at separation, his in-service roommate admitted to witnessing the Veteran having scratches and wearing bandages after returning from a temporary assignment. See the May 2007 statement. Additionally, in a January 2007 private medical statement, Dr. Sultan concluded that he could not completely rule out the relationship between the claimed head injury and the current hemorrhagic AVM. Due to the notations in the Veteran's service treatment records of a pre-service fall, the May 2007 roommate statement, as well as the January 2007 private medical statement, the Board determined that a remand was warranted to afford the Veteran a special VA neurological examination to determine the nature and etiology of his claimed disorders. Specifically, it was requested that the VA examiner determine whether the Veteran's intracranial AVM is a "congenital or developmental defect or disease." As such, in May 2009, the Veteran underwent a VA neurological VA examination. The VA examiner indicated that both the claims file and medical records were reviewed. After review of the records and physical examination of the Veteran, the VA examiner opined that the intracranial arteriovenous malformation status post brain surgery in 1996 and 1997 is "less likely than not" secondary to an injury incurred or aggravated during service. She explained that AVM is a "congenital condition," and based on a review of literature from the Mayo Clinic, AVM is an abnormal connection between the arteries and veins in the brain that develops during fetal development. In the September 2009 decision, the Board determined that service connection was not warranted for the Veteran's brain disorder requiring surgery, to include as secondary to a fall in service. It was concluded that based upon the service treatment records showing that the Veteran had a history of a head injury prior to service, and the April 2009 VA examiner's conclusion that AVM was a congenital condition, the Veteran's AVM clearly and unmistakably pre-existed his active service, but was not aggravated during service resulting in the current brain disorder. This assertion was supported by the April 2009 VA examiner's opinion that the intracranial AVM status post brain surgery in 1996 and 1997 is less likely than not secondary to an injury incurred in or aggravated during service. The Board acknowledged the January 2007 private medical statement, which concluded that there is a "probability that his head trauma . . . resulted in [AVM] . . . . [,]" but assigned greater weight to the April 2009 VA examiner's opinion because the private physician's opinion appeared speculative in nature, did not have access to the Veteran's claims file, and failed to provide supportive rationale for the conclusion reached. With regard to the remaining claims for service connection for a paralyzing disorder, spinal cord disorder, headaches, hemorrhoids, and stomach ulcers, all due as secondary to the fall in service, the Board denied the claims on the basis that AVM was deemed a congenital condition that had not been aggravated during military service. Finally, the Board denied special monthly compensation based on the need for the regular aid and attendance of another person because the Veteran was not service-connected for any disabilities. In the November 2010 Joint Motion for Remand, the Court found that the Board failed to provide adequate statement of reasons or bases for the denial of the claims and failed to ensure compliance with the previous February 2009 Board remand. As previously noted, the Board ordered that the VA examiner determine whether the Veteran's intracranial AVM is a "congenital or developmental defect or disease." The April 2009 VA examiner opined that such disability is a "congenital condition," which the Board noted and relied upon as well in the September 2009 decision. The Court concluded that the April 2009 VA examination report was inadequate as it did not discern whether the Veteran's congenital AVM is a congenital disease or a congenital defect. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)). The VA General Counsel in a precedent opinion indicated that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes, in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), is not subject to service connection in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. In light of the Court's discussion in the Joint Motion for Remand, the Board finds that the Veteran's claim for service connection for a brain disorder requiring surgery, to include as secondary to a fall in service, should be remanded back to the RO for an additional VA examination and medical opinion. The Veterans Claims Assistance Act of 2000 (VCAA) requires that the VA assist a claimant in obtaining evidence needed to substantiate the claim. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). As to the Veteran's remaining claims for service connection and SMC based on the need for regular aid attendance of another person, the Board notes that they must be held in abeyance, as they are inextricably intertwined with the claim for service connection for a brain disorder requiring surgery, to include as secondary to a fall in service. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, these claims cannot be adjudicated at the present time. Finally, in an April 2011 statement, the Veteran's private attorney indicates that the Veteran has continued to receive medical care by both VA and private medical providers for his claimed disabilities since the September 2009 Board decision. The RO should obtain the Veteran's updated medical treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Contact the Veteran and obtain the names and addresses of all health care providers where he has received recent treatment for his brain disorder, paralyzing disorder, spinal cord disorder, headaches, hemorrhoids, and stomach ulcers. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of all related medical records (unless the identified records are already associated with the claims file). Regardless of whether or not the Veteran responds, obtain his most recent VA treatment records. 2. Afford the Veteran a VA examination to determine the nature and etiology of his claimed disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records. The examiner should specifically answer the following questions: a. Is the Veteran's intracranial arterial venous malformation (AVM) a congenital defect or disease? The Board requests that the VA examiner specifically use the word defect or disease when classifying the Veteran's AVM. See VAOPGCPREC 82-90 (July 18, 1990) (which stipulates that a congenital abnormality that is subject to improvement or deterioration is considered a "disease"). b. If it is determined that the Veteran's intracranial AVM is a congenital "defect," provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) there is any superimposed disease or injury in connection with the congenital defect and, if so, whether it is at least as likely as not that the identified superimposed disease or injury is related to the Veteran's active military service. c. If it is determined that the Veteran's intracranial AVM is a congenital "disease," provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such disease was incurred in, or aggravated by (e.g., a worsening of the underlying condition as compared to an increase in symptoms), the Veteran's active military service. The examiner should explain whether the evidence clearly and unmistakably demonstrates that the disease pre-existed service and was not aggravated thereby. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation (e.g., whether the evidence clearly and unmistakably demonstrates that the disease did not worsen beyond natural progression during service). d. In the alternative, if the Veteran was neurologically normal and demonstrated no vascular deficiencies at the time of his service enlistment, with no pre-existing or congenital disabilities, provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) his intracranial AVM had its onset in service or are otherwise related to active service. e. Is it at least as likely as not that the Veteran's claimed paralyzing disorder, spinal cord disorder, headaches, hemorrhoids, and stomach ulcers are caused by the intracranial AVM? In providing an opinion, the VA examiner is requested to specifically comment on the Veteran's service and post service treatment records, and the January 2007 private medical statement from Dr. Sultan. A rationale for any opinion reached must be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then she/he should indicate this. 3. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). _________________________________________________ K.J. ALIBRANDO 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).