Citation Nr: 1329469 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-06 372A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of a surgical procedure performed at a VA Medical Center (VAMC) on February 9, 2005, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to April 1969 and from January 1971 to April 1974. This matter originally came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 2006 rating action, by the Decatur, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a surgical procedure performed at a VA Medical Center (VAMC) on February 9, 2005. The Veteran perfected a timely appeal to that decision. The Board notes that jurisdiction of this claim was subsequently transferred from the Decatur, Georgia, RO to the St. Petersburg, Florida, RO in July 2006, when the appellant relocated. In November 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of this hearing has been prepared and associated with the claims folder. In April 2009, the Board requested an outside medical opinion (OMO) with regard to the Veteran's claim; the opinion was received at the Board in August 2009. Subsequently, the appellant submitted a statement from his VA physician in September 2009. In the September 2009 Informal Brief Presentation prepared by the appellant's representative, it was noted that "[t]here is no waiver of Regional Office consideration, neither implied nor intended." Accordingly, in October 2009, the Board remanded this claim back to the RO for review and adjudication. Following the requested development, a supplemental statement of the case (SSOC) was issued in December 2010. By a decision issued in September 2011, the Board denied the claim for compensation under the provisions of 38 U.S.C.A. § 1151 , for residuals of a surgical procedure performed at a VA Medical Center (VAMC) on February 9, 2005. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Joint Motion for Remand of BVA Decision on Appeal (Joint Motion), the parties asked that the Board's September 2011 decision be vacated and the matter be remanded to the Board for readjudication and disposition consistent with the Joint Motion. On July 9, 2012, the Court granted the Joint Motion and vacated the September 2011 decision, remanding the case to the Board for readjudication and disposition consistent with that motion. The Board remanded this matter to the RO in February 2013 for additional development to comply with the directives of the Joint Motion. Following such development by the RO, this matter has been returned to the Board for further appellate consideration. 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 Unfortunately the Board finds that it is again necessary to remand this matter for additional development. After this matter was returned to the Board following the RO's readjudication after having obtained a VA medical examination with opinion, the Veteran's representative raised an argument in an August 2013 brief, alleging the development of this matter continues to be incomplete. Specifically it was noted that the Board in its prior decision of September 2011 had referenced a history of the Veteran having had a series of falls following his C 6 corpectomy surgery that took place on February 9, 2005. The representative has argued that the examiner addressing his 1151 claim for additional disability as a result of the February 9, 2005 surgery should also address whether any of the series of falls while transferring between his bed and wheelchair while recovering from this surgery contributed to additional disabilities and if so, were caused by VA negligence. A review of the post surgery records from the VA Medical Center (VAMC) in Gainesville Florida, following the February 9, 2005 surgery document falls said to have taken place on February 11, 2005 and on February 16, 2005, with no apparent injuries reported. A hospital discharge report dated February 17, 2005, pursuant to transferring him from the Gainesville VAMC to the Tampa Spinal Cord Unit for further rehabilitation, described the Veteran as having had 3 unwitnessed falls from transferring from his bed to his wheelchair. The hospital records from February 2005 also document him as being a known fall risk. Given the arguments raised that the post surgery falls should be as part and parcel of this claim for 1151 benefits for additional disability from residuals of a surgical procedure performed at a VA Medical Center (VAMC) on February 9, 2005, the Board finds that an addendum medical opinion should be obtained addressing the significance of these falls and to afford readjudication of this claim with consideration of these falls during the post surgery recovery at Gainesville VAMC. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned to the VA examiner who provided the April 2013 addressing the claim for 1151 benefits, to obtain the following addendum opinions. If this examiner is no longer available the claims file should be associated with the appropriate medical professional(s). After review of the evidence in the claims file and electronic record, the physician should offer an opinion, consistent with sound medical principles, as to the following: a). Describe any (and all) new or aggravated disability diagnoses to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder the Veteran is shown to have following any falls during his post surgery recovery following the February 9, 2005 C 6 corpectomy surgery, to include the falls documented on February 11, 2005 and February 16, 2005. For each diagnosis found, please identify the new or aggravated disability (by pathology and associated impairment of function). (b). Is any new or aggravated chronic disability shown to be a result of carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA in connection with the falls during his post surgery recovery following the February 9, 2005 C 6 corpectomy surgery, to include the falls documented on February 11, 2005 and February 16, 2005? The explanation of rationale for the response to this question should address the standard of care the Veteran received. (c). If the response to (b) is no, please opine further whether or not any new or aggravated chronic diagnosis from VA treatment is due to an event that was not reasonably foreseeable. The examiner should identify all etiological factors implicated in any new or aggravated disability shown since the Veteran's falls during his post surgery recovery following the February 9, 2005 C 6 corpectomy surgery, to include the falls documented on February 11, 2005 and February 16, 2005. The examiner must explain the rationale for all opinions. 2. The AOJ must ensure that all medical opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the physician for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the AOJ should re- adjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he receives further notice. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this REMAND are to further develop the record and to accord the Veteran due process of law. 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).