Citation Nr: 1332881	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  10-11 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for spinal cord injury at C5 with quadriplegia.

2.  Entitlement to a rating in excess of 20 percent (from November 1, 2006) for prostate cancer, status post brachytherapy.

3.  Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A & A) or on housebound status.


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

Veteran, Veteran's wife, and H.F.
ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from July 1967 to July 1969.  These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2007 and April 2009 rating decisions of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO).  In September 2012, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304 (2013).

The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered.

The issues of service connection for erectile dysfunction, and for "petrified" prostate and urethral tissues, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.

The issues seeking service connection for spinal cord injury at C5 with quadriplegia (on de novo review), and an increased rating for prostate cancer, are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if action on his part is required.




FINDINGS OF FACT

1.  An unappealed November 2006 rating decision denied the Veteran service connection for spinal cord injury at C5 with quadriplegia, finding in essence that there was no evidence of a relationship between such disability and either his service or a service-connected disability.

2.  Evidence received since the November 2006 rating decision suggests that the fall which caused his spinal cord injury at C5 with quadriplegia was caused by his service-connected knee disability (i.e., that the fall occurred because his knee gave out); relates to an unestablished fact necessary to substantiate the claim of service connection for spinal cord injury at C5 with quadriplegia; and raises a reasonable possibility of substantiating such claim.

3.  At a September 2012 hearing, prior to the promulgation of a decision in the appeal in the matter, the Veteran expressed his intent to withdraw his appeal seeking SMC based on the need for A&A or on housebound status.


CONCLUSIONS OF LAW

1.  New and material evidence has been received, and the claim of service connection for spinal cord injury at C5 with quadriplegia may be reopened.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2013).

2.  The criteria for withdrawal of an appeal are met as to the matter of SMC based on the need for A&A or on housebound status; the Board has no further jurisdiction in the matter.  38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim to reopen.  However, inasmuch as this decision reopens the claim, there is no need to belabor the impact of the VCAA on this matter (as any notice or duty to assist omission is harmless).

Legal Criteria, Factual Background, and Analysis

A November 2006 rating decision denied the Veteran service connection for spinal cord injury at C5 with quadriplegia.  He was furnished notice of that determination and of his appellate rights.  He did not appeal that decision, nor did he submit new and material evidence within one year following notice; therefore it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.

A claim which is the subject of a prior final decision may be reopened if new and material evidence is received.  38 U.S.C.A. § 5108.

New and material evidence is defined by regulation.  See 38 C.F.R. § 3.156.  New evidence means evidence not previously submitted to agency decision-makers.  Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of establishing the claim.  38 C.F.R. § 3.156(a).

The Court has held that the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Veteran's claim of service connection for spinal cord injury at C5 with quadriplegia was denied by a November 2006 RO rating decision essentially on the basis that there was no evidence of a relationship between such disability and either his service or a service-connected disability.

Evidence received since the November 2006 rating decision includes, most significantly, affidavits dated in September 2012 from the Veteran's daughters and stepson.  In all four affidavits, each family member asserted the following: "[The Veteran] has repeatedly told me that his knee gave out on him and caused his fall which resulted in his broken neck and quadriplegia....I am aware that [the Veteran's] medical records report various reasons for his fall....I have repeatedly seen [the Veteran] stumble when his knees would lock up on him.  He had a great deal of pain with both knees and legs.  He would say that his knees just wouldn't hold him up at times."

As the claim of service connection for spinal cord injury at C5 with quadriplegia was previously denied on the basis that there was no evidence of a relationship between such disability and either his service or a service-connected disability, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show that his spinal cord injury at C5 with quadriplegia was incurred or aggravated in service or caused or aggravated by a service-connected disability.  The aforementioned affidavits from the Veteran's family members suggest that the fall which caused his spinal cord injury at C5 with quadriplegia was caused by his service-connected knee disability (i.e., that the fall occurred because his knee gave out).  For purposes of reopening, they are deemed to be credible.  They relate to an unestablished fact necessary to substantiate the claim of service connection for spinal cord injury at C5 with quadriplegia and raise a reasonable possibility of substantiating that claim (particularly in light of the low threshold standard endorsed by the Court in Shade, supra).  Therefore, such evidence is new and material, and this claim may be reopened.  38 U.S.C.A. § 5108.

De novo review of this claim is addressed in the remand below.

Withdrawal of an Appeal

The Board has jurisdiction in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary.  38 U.S.C.A. § 7104.  The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105(b)(5) (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.

At the September 2012 Travel Board hearing, the Veteran testified that he wished to withdraw his appeal seeking special SMC based on the need for A&A or on housebound status.  There remain no allegations of errors of fact or law for appellate consideration with regard to this issue.  Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal in the matter must be dismissed.


ORDER

The appeal to reopen a claim of service connection for spinal cord injury at C5 with quadriplegia is granted.

The appeal seeking SMC based on the need for A&A and on housebound status is dismissed.


REMAND

On review of the record the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA.

Service Connection - Spinal Cord Injury at C5 with Quadriplegia

The Veteran contends that his fall on December 13, 2005 which caused his spinal cord injury at C5 with quadriplegia occurred as a result of his service-connected left knee, left leg, right knee, and lumbar spine disabilities.  He has specifically contended that the fall occurred because his left knee gave out.

A June 2005 VA treatment record notes that the Veteran requested replacement knee braces because he had had his current set for a while and they were just about worn out.

The evidence of record contains differing accounts of the circumstances surrounding the Veteran's December 2005 fall.  Private treatment records dated in December 2005 and January 2006, as well as a May 2006 VA hospital discharge summary, provide several versions of an account wherein the Veteran became flushed after taking Niacin, went to the bathroom to rinse his face, and experienced a syncopal episode and passed out, awakening on the floor unable to move his arms or legs; these records note that the Veteran had amnesia to the event.  In a March 2006 statement (and at the September 2012 Travel Board hearing), the Veteran's wife asserted that the Veteran had gotten up in the middle of the night to use the bathroom and fell, that he was alert and aware immediately after the fall that he had broken his neck, and that he alleged that his leg had given out on him.  She noted that he had bad knees and legs and would stumble sometimes.  In a July 2006 statement (and at the September 2012 Travel Board hearing), the Veteran asserted that he had never passed out, that he was awake after the incident, and that he fell because his leg gave out on him (not because he was flushed from Niacin).

An August 2006 VA treatment record notes that the Veteran "fell about seven months ago.  The fall was a result of a leg injury that he had suffered in Vietnam.  He sustained a C4 incomplete injury and now is an incomplete C4 tetraplegic."

In November 2011, a VA physician opined that "[i]t would be speculation to state that the fall in question relates to his left leg wound."

In September 2012, the Veteran's daughters and stepson submitted affidavits asserting the following: "[The Veteran] has repeatedly told me that his knee gave out on him and caused his fall which resulted in his broken neck and quadriplegia....I am aware that [the Veteran's] medical records report various reasons for his fall....I have repeatedly seen [the Veteran] stumble when his knees would lock up on him.  He had a great deal of pain with both knees and legs.  He would say that his knees just wouldn't hold him up at times."

At the September 2012 Travel Board hearing, the Veteran, his wife, and another witness (H.F.) testified that the Veteran had a history of falls (due to his left knee giving out) prior to the December 2005 accident.

In light of the above, a medical opinion regarding the fall which caused the Veteran's spinal cord injury at C5 with quadriplegia (and whether such fall was caused or aggravated by his service-connected left knee, left leg, right knee, and/or lumbar spine disabilities) is needed.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).

Increased Rating - Prostate Cancer

The Veteran seeks an increase in the rating for his service-connected prostate cancer disability, rated as 20 percent from November 1, 2006.  [Such disability is rated as 100 percent disabling prior to November 1, 2006.]

VA treatment records dating after November 2006 document treatment for multiple urinary disabilities, including neurogenic bladder, urethral stricture, urosepsis, chronic urinary tract infections (UTIs), and incontinence of bladder with continuous catheterization.  Such records also document treatment for kidney stones.  In May 2007, the Veteran underwent a transurethral resection (TUR) of the bladder neck and prostate at a VA hospital.  It was noted in a June 2007 VA aid and attendance/housebound examination report that he had scar tissue formation from his brachytherapy prostate cancer treatment.

On June 2010 VA genitourinary examination, the VA examiner opined that the Veteran's recurrent UTIs and indwelling supra-pubic catheter were not secondary to his service-connected prostate cancer or the brachytherapy or TUR procedures which followed.  The examiner opined that the far more likely etiology of the recurrent UTIs and supra-pubic catheter was the neurogenic bladder condition which followed cervical vertebrae and spinal cord injury after a fall in 2005.  The examiner also noted that there was a less than likely chance that renal stones could be related to the irritation of an indwelling supra-pubic catheter.

Following a May 2011 VA genitourinary examination, in a June 2011 addendum, a VA physician opined that the Veteran's neurogenic bladder and need for permanent urinary catheter were more likely than not related to his traumatic quadriplegia injury to the cervical cord and that such injury "almost invariably" caused those medical problems.

The Veteran has not been afforded a VA examination for his prostate cancer disability (and any urinary or renal disabilities) since May 2011, more than two years ago.  Given the allegations of worsening at his September 2012 hearing, a contemporaneous examination to assess the severity of this disability and any residuals thereof is necessary.

In addition, any reports of ongoing VA treatment are constructively of record (and are likely to contain pertinent information), and must be obtained.  See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following:

1.  The RO should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation.  The RO should secure for the record complete records of all such treatment and evaluation from all sources identified.  If any records sought are unavailable, the reason must be explained for the record.  In addition, the RO should secure for the record complete copies of records (which are not already associated with the record on appeal) of all VA treatment the Veteran has received for his claimed disabilities.  If any records sought are unavailable, the reason must be explained for the record.

2.  After the development sought above is completed, the RO should forward the claims file to an appropriate physician for a medical opinion regarding the December 2005 fall which caused the Veteran's spinal cord injury at C5 with quadriplegia.  The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the physician in conjunction with rendering the opinion.  Based on review of the record, the physician must opine as to whether it is at least as likely as not (a 50% or better probability) that such fall was caused or aggravated by the Veteran's service-connected left knee, left leg, right knee, and/or lumbar spine disabilities.  The physician must explain the rationale for all opinions, citing to supporting clinical data, as appropriate.

3.  After the development sought in Instruction #1 is completed, the RO should arrange for a urology examination of the Veteran to determine the nature and severity of his prostate cancer disability and any residuals thereof.  The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the physician in conjunction with the examination.  The examiner should be provided a copy of the criteria under 38 C.F.R. §§ 4.115b, Code 7528 and 4.115a.  Based on review of the record and examination of the Veteran, the examiner should provide an opinion that specifically notes whether there has been local reoccurrence or metastasis of the Veteran's prostate cancer since April 2005; and identifies and describes in detail the post-brachytherapy residuals of the Veteran's prostate cancer in terms of the criteria for rating renal dysfunction or voiding dysfunction.  The examiner must explain the rationale for all opinions.

4.  The RO should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claims remaining on appeal.  If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs