Citation Nr: 18155858 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-00 489A DATE: December 6, 2018 REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1955 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2015, the Veteran and his spouse appeared with his attorney for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. This matter was remanded by the Board in August 2016, December 2016, October 2017, and again in March 2018 for additional development. Regrettably, a review of the record reflects that further development of this claim is necessary prior to appellate consideration. 1. Entitlement to SMC based on aid and attendance is remanded. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). If an opinion is based on an inaccurate factual premise, then it is correct to discount that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Special monthly compensation is payable for anatomical loss or loss of use of both feet or with such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b) (2018). It is undisputed that the Veteran currently experiences paraplegia of the bilateral lower extremities, a potential basis for grant of SMC. Rather, the key issue in this case concerns the etiology of the Veteran’s paraplegia - whether it is a result of a service-connected disability and/or disabilities. In its March 2018 remand, the Board directed the AOJ to, in pertinent part, schedule the Veteran for VA examination to determine whether he is in need of aid and attendance due to his service connected disabilities. In particular, the Board highlighted the inconsistent evidence of record regarding the nature and etiology of the Veteran’s paraplegia. On one hand, report of the June 2017 VA examination reflects, in pertinent part, the examiner’s opinion that the Veteran’s paraplegia is a result of non-service-connected idiopathic transverse myelitis. This is consistent with VA medical records dated in October 2012, which reflect the physician’s assessment that the Veteran’s symptomatology is most likely due to idiopathic transverse myelitis rather than service-connected lumbar disability with radiculopathy of the lower extremities. On the other hand, a private physician’s correspondence dated in August 2017 indicated that transverse myelitis was initially considered as a differential diagnosis, but that subsequent diagnostic testing, i.e., imaging studies and spinal fluid analysis, did not support this diagnosis. A private physician’s statement dated in July 2017, noted the Veteran’s history of paraplegia since in or around 2011. The physician also noted a history of lumbar disability which progressively worsened since service. She noted that despite significant work-up, a clear determination of the etiology of the Veteran’s symptoms, including paraplegia, has not been ascertainable. In its March 2018 remand directives, the Board explicitly noted that any opinion rendered should address the conflicting evidence of record. A new VA examination and opinion was thus obtained in June 2018. Report of the June 2018 VA examination reflects, in pertinent part, the examiner’s opinion that the Veteran’s paraplegia of the lower extremities is less likely than not proximately due to or a result of transverse myelitis. In doing so, the examiner noted that the initial diagnosis was likely a differential diagnosis, but after an extensive work-up, transverse myelitis was removed as a diagnosis and likely cause of the Veteran’s bilateral lower extremity paraplegia. Rather, the examiner opined that it is at least as likely as not that the Veteran’s paraplegia is proximately due to or a result of his service-connected lumbar disabilities. In doing so, she noted that the Veteran is service-connected for osteoarthritis and degenerative disc disease with radiculopathy of the bilateral lower extremities, which has progressively worsened since approximately 2011 per imaging studies of the Veteran’s spine. For instance, an August 2015 MRI revealed new spinal stenosis and right sided disc protrusion further contributing to the Veteran’s lower extremity symptoms and loss of use of feet. No further opinion or rationale was provided. A new medical opinion was obtained in September 2018. The examiner opined that the Veteran’s paraplegia of the lower extremities is less likely than not proximately due to or a result of his service-connected disabilities. In doing so, the examiner noted a history of neuropathic pain and paresthesias in the lower extremities precipitated by an August 2011 injury. A few days later, the Veteran was hospitalized due to paraplegic symptoms. At that time, the Veteran was diagnosed with acute inflammatory demyelinating polyneuropathy (AIDP). Subsequently, the Veteran has undergone and extensive neurologic work-up which has been unrevealing. A neurologic clinic progress noted dated in October 2012 noted that the symptoms exhibited by the Veteran are most consistent with idiopathic transverse myelitis. At that time, the Veteran was diagnosed with transverse myelitis, a subset of AIDP. The examiner noted that the Veteran’s diagnosis was recently amended to spinal cord injury, rather than transverse myelitis. The examiner noted that varying diagnoses, i.e., AIDP, transverse myelitis, and spinal cord injury, all depict the same signs of paraplegia of the lower extremities stemming from his August 2011 injury. Medical treatment records prior to August 2011 reflect the Veteran was fully ambulatory. The examiner concluded that the Veteran’s paraplegia is caused by the Veteran’s non-service-connected AIDP/idiopathic transverse myelitis/spinal cord injury. No further opinion or rationale was provided. Unfortunately, the medical opinions obtained (even considered as a whole) fail to sufficiently address the Board’s request. First, it appears that the June 2018 examiner’s opinion may be based on an inaccurate factual premise. In particular, the examiner stated that the initial diagnosis of AIDP/transverse myelitis was likely a differential diagnosis, but after an extensive work-up, transverse myelitis was removed as a diagnosis. As indicated above, a private physician’s correspondence dated in August 2017 indicated that transverse myelitis was initially considered as a differential diagnosis, but that subsequent diagnostic testing, i.e., imaging studies and spinal fluid analysis, did not support this diagnosis. However, private medical treatment records dated in September 2011 (during the Veteran’s hospitalization) reflect the Veteran underwent an extensive work-up with varying results. The physician noted that while the electromyography did not provide any definitive evidence to support a diagnosis of AIDP, a lumbar puncture was performed and revealed elevated protein levels at 65, which is more consistent with the diagnosis of AIDP. Ultimately, “it was felt that the process was suggestive of combined myelopathy and peripheral neuropathy, which is atypical of AIDP, but with elevated protein levels, made the diagnosis more likely.” VA medical treatment records dated in October 2011 reflect a diagnosis of AIDP. VA medical treatment records dated in May 2013 reflect a diagnosis of paraplegia due to transverse myelitis. At that time, the physician noted this diagnosis is consistent with similar clinical course that resulted in the same diagnosis. Lastly, the Board notes that VA medical treatment records dated in March and April 2018 indicated that the diagnosis of transverse myelitis was being removed from the Veteran’s records. An attending physician noted that because the diagnosis of transverse myelitis upset the Veteran and the Veteran’s wife, it was being removed and changed to the more generic spinal cord injury. The physician noted that “this will allow him to be seen in SCI Clinic and get some supportive care for his condition.” At that time, the physician noted that the “diagnosis was decided based on examination and history and for a lack of a better term” to describe the Veteran’s symptomatology. He further noted that an individual can have negative lab work and imaging, and still have transverse myelitis based on other objective evidence. He explained that transverse myelitis is a form of myelopathy/spinal cord injury, but like many neurologic disorders, cannot be definitively proven or disproven. There is no evidence that the Veteran was provided diagnosis other than myelopathy/transverse myelitis from Duke Hospital in August 2011. Under the surrounding circumstances, the June 2018 examiner’s failure to provide an adequate rationale for any of the opinions offered is significant. Here, the Board is strained to make assumptions and draw inferences as to the examiners’ reasoning. Moreover, the examiner failed to adequately address the October 2012 and June 2017 VA physician’s opinions that the Veteran’s lower extremity paraplegia is the result of transverse myelitis. Next, the Board turns to the September 2018 medical opinion. The September 2018 VA examiner failed to discuss July 2017 and August 2017 private physician’s statements as requested by the Board. Additionally, the evidence of record suggests that transverse myelitis may be an intermediate step between the Veteran’s service-connected lumbar disability and the Veteran’s paraplegia of the lower extremities. For instance, private medical treatment records dated in April 2005 reflect that many disorders, including herniated intervertebral disc, can cause a secondary demyelinating acute transverse myelitis. Private medical treatment records dated in June 2014 (Dr. CD) referenced an August 2012 MRI, which revealed posterior disc bulges at the levels of L5/S1, L4/L5, L3/L4, L2/L3, and worst at L5/S1. The physician noted that disc bulges can compress these spinal nerves that control legs, feet, reproductive organs, bladder, prostate, large intestine, and muscles of the lower back. The physician opined that the Veteran’s current condition is likely a continuation of the injury the Veteran sustained in service. The Board finds that a medical examination and opinion adequately commenting on all of the evidence of record is necessary in order to adjudicate the claim. The matter is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion from the September 2018 VA examiner, if possible. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The following questions must be answered: (a.) Does the Veteran currently have or has he ever had a diagnosis of myelopathy and/or transverse myelitis during the appeal period? If so, the examiner must address the August 2017 statement by Dr. K. Gable and the June 2018 VA examiner’s opinion that the diagnosis of transverse myelitis was a differential diagnosis, and that subsequent diagnostic testing, i.e., imaging studies and spinal fluid analysis, did not support this diagnosis and the diagnosis was retracted. (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s paraplegia of the bilateral lower extremities is proximately due to or a result of his service-connected lumbar spine osteoarthritis and degenerative disc disease. (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s paraplegia of the bilateral lower extremities is proximately due to or a result of his myelopathy and/or transverse myelitis (also referred to as spinal cord injury). (d.) If, and only if, the requested development establishes a diagnosis of myelopathy and/or transverse myelitis during the appeal period, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disability is proximately due to or aggravated by his service-connected lumbar osteoarthritis and degenerative disc disease. The examiner must fully address the evidence of record, to include the April 2005 private medical evidence suggesting a medical nexus between a herniated disc and the development of demyelinating acute transverse myelitis. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel