Citation NR: 9730784 Decision Date: 09/08/97 Archive Date: 09/11/97 DOCKET NO. 96-25 664 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for syringomyelia. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W.H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from January 1977 to August 1977. The Board of Veterans’ Appeals (Board) received this case on appeal from a February 1996 RO rating decision. That rating decision granted an increased evaluation for neurogenic bladder, from 20 percent to 60 percent; service connection for a dysthymic disorder as secondary to paraparesis, assigned a 30 percent evaluation; service connection for amputation of the left great toe, with removal of metatarsal head, as secondary to paraparesis, assigned a 30 percent evaluation; and special monthly compensation at the intermediate rate between 38 U.S.C.A. § 1114(l) and 38 U.S.C.A. § 1114(m) on account of loss of use of both feet with additional disabilities independently ratable at 50 percent or more. The rating decision also denied the veteran service connection for syringomyelia, with loss of feeling in the upper extremities and loss of bowel control. The Board first observes that the veteran is in receipt of compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for paraparesis, secondary to centrally located herniated disc at L1-2 and arachnoid cyst surgery which is evaluated as 100 percent disabling. A November 1984 RO rating decision took notice of the grant of a Federal Trot Claim, based on a finding of negligence on the part of VA medical personnel during the veteran’s hospitalization from May to September 1978, where he underwent a total laminectomy from T-12 to L-3 with decompression of arachnoid cyst and removal of ventral disc. The November 1984 RO rating decision granted compensation benefits pursuant to the provisions of 38 U.S.C.A. § 351 (now codified at § 1151) for the low back disability with associated lower extremity impairment. Although the RO developed and certified the issue for appellate consideration as entitlement to service connection for syringomyelia with loss of feeling in the upper extremities and loss of bowel control, the Board notes that the veteran has consistently maintained that this is due to the 1978 VA surgery on his back. Thus, the issue involves a late residual of that surgery and should be considered pursuant to the provisions of 38 U.S.C.A. § 1151, as the Board has set the issue forth on the title page of this decision. REMAND The veteran contends that his syringomyelia is a recently diagnosed disability but a consequence of his 1978 VA low back surgery. The RO considered this issue under the provisions of law and regulations pertaining to direct and presumptive service connection and, by implication, secondary service connection. The analysis should be undertaken in light of the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.358 (1996). Moreover, the medical record should be further developed. The record as currently constituted contains a hospital summary for the period of VA hospitalization at the Syracuse, New York facility from May 10, 1978, to September 6, 1978, and uncertified copies of the hospital clinical records for this period. The Board considers it essential that we have complete VA hospital clinical records and complete VA outpatient treatment records for association with the claims folder. Such records between September 1978 and a period of VA hospitalization from December 1990 to January 1991, to the extent they exist, are not in the claims folder and the medical records prior to 1994 are sketchy at best. In order to render a fully informed decision, the Board believes that it is desirable to obtain a VA medical opinion as to the etiology of the veteran’s syringomyelia and other matters, and that this opinion should be based on a review of the entire medical record. This is particularly important in light of the opinion of C. M. Bash, M.D., expressed in July 1997 in support of the veteran’s claim. This physician, who is associated with the service organization representing the veteran, concluded after a review of the claims file that it is as least as likely as not that the veteran’s previous surgeries (laminectomies to the lower thoracic and lumbar area and removal of an arachnoid cyst) created significant trauma to the arachnoid space and thereby “likely” caused the delayed development of the veteran’s syringomyelia. RO review of this statement has not been waived by the veteran or his representative; accordingly, this statement must be reviewed by the RO prior to a Board decision with respect to the issue currently for appellate consideration. See 38 C.F.R. § 20.1304(c) (1996). In an informal hearing presentation in late July 1997, the veteran’s representative specifically declined to waive RO review of this evidence. Under these circumstances, the case is REMANDED for the following actions: 1. The RO should obtain complete original VA hospital clinical records of all periods of VA hospitalization commencing with the hospitalization from May 10, 1978, to September 6, 1978, and extending to the current time, for association with the claims folder. The RO should also obtain complete original VA outpatient treatment records from the time of the veteran’s discharge from inpatient hospital care in 1978 to the current time, for association with the claims folder. Certified copies of both sets of records may be substituted for the originals. 2. After the above action has been completed, the veteran should be accorded a comprehensive VA examination by a neurologist to ascertain the nature, extent and etiology of his syringomyelia. The examiner should review the claims file and all associated volumes of VA clinical records and so state in his report. All findings should be reported in detail. All indicated studies should be completed. The examiner should comment on the lumbar trauma sustained by the veteran and treated at a private hospital in 1970, prior to the veteran’s entrance onto active duty, and any spinal trauma he sustained as a consequence of the surgery to his spine undertaken at a VA hospital in 1978, as well as the opinion offered by Dr. Bash in July 1997 that the syringomyelia is of traumatic origin and is related to the 1978 VA surgery for the low back disorder. The examiner should express an opinion as to whether it is as least as likely as not that the veteran’s current syringomyelia is a late residual of the 1978 surgery at a VA hospital. Additionally, in order to accord the veteran the benefit of every consideration, the neurologist should also express an opinion as to whether the veteran’s loss of bowel control, classified by the RO as due to syringomyelia, is in fact due to syringomyelia or whether it is due to the spinal cord injury in the low back which is already the subject of an award of compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151. The rationale for these opinions should be set forth. 3. Following completion of the foregoing, the RO should review the claims file and ensure that all of the aforementioned development has been conducted and completed in full. If any development is incomplete, including if all requested medical records have not been obtained, or the requested examinations do not include all comments and opinions requested, appropriate corrective action should be implemented. 4. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished the veteran and his representative, containing an explanation of the RO’s latest deliberations under all of the applicable criteria. Those criteria should be fully set forth. The veteran and his representative should be afforded the requisite 60 days to respond to the supplemental statement of the case. 38 C.F.R. § 20.302(c) (1996). Thereafter, the case should be returned to the Board for further appellate consideration, if in order, following appropriate appellate procedures. No action is required of the veteran until notified. The purpose of this REMAND is to procure clarifying data. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1996). - 2 -