Citation Nr: 1757532 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-04 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.§ 1151 for paralysis, bilateral lower extremities, due to cervical spinal plasmacytoma with multiple myeloma. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1944 to May 1946. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking compensation benefits under the provisions of 38 U.S.C. § 1151 for paralysis, bilateral lower extremities, due to cervical spinal plasmacytoma with multiple myeloma. The Veteran claims that he sought treatment for neck pain from the VA in May 2010, at which time he was given pain medication and sent home. In August 2010, due to ongoing and worsening neck pain, the Veteran reported contacting VA to seek additional care. He was then scheduled for an appointment on October 2, 2010. At that appointment, the Veteran was found to have cervical spinal plasmacytoma with multiple myeloma, which was compressing his spinal cord and had caused some paralysis. The Veteran contends that if a proper diagnosis had been made in May 2010, then he would not have been paralyzed and he would be in far better physical condition. Under VA laws and regulations, when a Veteran incurs additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. Since the Veteran filed his claim after that date. The Veteran must show a degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.§ 1151(a)(1); 38 C.F.R. § 3.361. This is a complex situation. After reviewing the Veteran's claims file, the Board finds it necessary to remand this matter to schedule the Veteran for a new VA examination and medical opinion to adequately address whether he has any additional disability as a result of not being diagnosed with cervical spinal plasmacytoma with multiple myeloma in May 2010, and, if so, most importantly, whether any additional disability was the result of some instance of "fault" on the part of VA or was due to an event not reasonably foreseeable. In making this determination, the Board finds the March 2011 VA medical opinion, along with the February 2012 supplemental medical opinion, to be inadequate. Specifically, the VA examiner failed to provide a clear opinion, along with supporting rationale, as to whether the Veteran has any additional disability as a result of his not having been diagnosed with cervical spinal plasmacytoma with multiple myeloma by the VA in May 2010; and/or having not been given a follow up appointment prior to October 2, 2010. In addition, it does not appear that the VA examiner considered the October 22, 2010, comment from the attending ER physician indicating that a different treatment path was indicated for the Veteran based upon his unstable cervical spine. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, by a new examiner, to determine if he has any additional disability as a result of his not having been diagnosed with cervical spinal plasmacytoma with multiple myeloma by VA in May 2010; or by VA's not having scheduled him for a follow up appointment prior to October 2, 2010. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The evidence of record must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. If the examiner finds any additional disability, to include paralysis of the bilateral lower extremities, due VA's failure to diagnose the Veteran earlier, or to schedule him for an earlier follow up appointment, the examiner must provide an opinion as to whether the additional disability proximately was caused by: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in treating the Veteran; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider OR did VA furnish the care without the Veteran's informed consent? OR (2) Was the additional disability proximately caused by an event not reasonably foreseeable? The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with VA's informed consent procedures. 38 C.F.R. § 17.32. A complete rationale for any opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. The appellant has the right to submit additional evidence and argument on the matter 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.§§ 5109B, 7112 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.§ 7252 (West 2014), 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) (2016).