Citation Nr: 9917822 Decision Date: 06/28/99 Archive Date: 07/07/99 DOCKET NO. 94-17 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for additional disability caused by surgery rendered by the Department of Veterans Affairs during hospitalization in April 1981. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and appellant's wife ATTORNEY FOR THE BOARD Nadine W. Benjamin INTRODUCTION The veteran served on active duty from July 1950 to January 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 1990, the RO denied the veteran's claim of entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for additional disability caused by surgery rendered by the Department of Veterans Affairs during hospitalization in April 1981. Subsequently in June 1996, the claim was reconsidered by the RO in accordance with Gardner v. Brown 5 F.3d. 1456 (Fed.Cir. 1993). In March 1997, the Board remanded the veteran's claim to the RO for additional development. The case has been returned to the Board and is ready for further review. REMAND The veteran contends that following an April 1981 surgery at a VA facility, he experienced worsening symptoms of his residuals of a spine injury which occurred in 1962. He states that after the 1981 surgery, he experienced loss of bladder and bowel control, an inability to walk, impotence and right arm neurological problems. Pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998), VA is required to pay disability compensation for disability, aggravation of disability or death, to a veteran "in the same manner as if such disability, aggravation or death were service-connected," under the following circumstances: Where any veteran shall have suffered an injury, or aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation awarded under any of the laws administered by VA, or as the result of having submitted to an examination under any such law, and not the result of the veteran's own willful misconduct, and any such injury or aggravation results in additional disability to or the death of the veteran. As noted above the Board remanded the veteran's claim to the RO in March 1997. At that time the Board offered a discussion on the veteran's claim as follows:. A review of the record reveals that in August 1962, the veteran was in an automobile accident and was apparently initially treated at private facilities. In September 1962, he was admitted to a VA facility. It was noticed by way of history that he had suffered a compression fracture of the D- 2 to D-10 with subsequent paralysis of the right lower extremity and partial paralysis of the left lower extremity following a laminectomy. On examination by VA in 1965, it was noted that he was able to walk with only a slight limp. A January 1966 VA examination report shows that he had no control over his bowels, was ambulatory on a limited basis, had limited function in the left arm, and had urinary problems. On private examination in March 1966, it was reported that he had 75 percent numbness on the right side and 10 percent on the left. It was noted that he had almost normal bladder control but that he did not have bowel control. In an April 1966 statement, the veteran reported that he had to carry a chair with him and if walking were involved, he took a wheel chair. He also stated that he had occasional loss of control of his bowels. The veteran was examined by VA in April 1980 for aid and attendance, and he reported that he fell frequently, could walk only with assistance a few steps and that he was incontinent of bladder and bowel at times. It was noted that he had T-9 paresthesia, with left extremity muscles fair in strength. He was noted to be wheelchair bound and might ambulate with crutches later. In June 1980, the veteran complained of an inability to walk. He stated that over the past two years there had been a gradual and progressive deterioration of his gait, with progressive dragging of the foot and progressive numbness. He reported that in May he stumbled and fractured his hip, and that since then, he had not walked. He reported that he also lost bladder control and needed a Foley catheter. The examiner found post traumatic paraparesis with progressive lower extremity weakness, even antedating the recent fall. A June 1980 physical therapy report shows two-year history of lower leg spasticity getting worse and bowel and bladder incontinence. At that time, he was using a wheelchair. From that time until his April 1981 VA surgery, he had complaints of inability to walk, progressive leg weakness, loss of bowel and bladder control, dribbling of urine, and numbness in his hips and arms. In April 1981, the veteran entered a VA facility, and it was noted by way of history that in 1979, he began to have increased weakness in both legs. He reported that he presently had back pain, inability to use the right leg and difficulty sustaining erections. He was in a wheelchair and used a leg brace. The operative report shows that he had suffered progressive paraparesis which had accelerated over the past 3 months so that he was wheelchair bound. He was taken to the operating room for decompression of his anterior thoracic cord which was compressed by slight instability at the T-3 level according to myelography and tomography. Thereafter it was reported in the record that he appeared initially to have increased muscle strength; however increased weakness of the legs was noted after a few weeks. He experienced and was treated for depression in August 1981. In August 1981, the veteran was transferred to another VA facility for work up and rehabilitation. The veteran reported that during 1979 and 1980, he developed new weakness in both legs, which was progressive. He stated that he fell several times in 1980, injuring his left hip and requiring an open reduction and fixation. He reported being confined to a wheelchair, but eventually being able to ambulate with a walker and platform crutches. It was noted that in April 1981, he was admitted to a VA hospital with increasing back pain, inability to use the right leg and impotence. It was indicated that after his April 1981 surgery, he experienced continued increased weakness in his legs and an ascending sensory loss post-operatively. On examination, an in dwelling catheter was in use and there was angulation of the upper thoracic spine with minimal vertebral tenderness. Muscle strength was normal in the upper extremities and there was marked weakness of the hip flexors and marked weakness of all of the muscles below the knee on the right side and 3/5 strength on the left side. On consultation by the endocrine service it was opined that the veteran had idiopathic osteoporosis which led to the collapse of vertebra and progressive cord compression which occurred subsequent to trauma in 1962. He underwent a revision transthoracic decompression of T2-T5 with a rib graft in October 1981. A check of his neurologic condition showed no worsening, and it was reported that healing occurred satisfactorily. It was reported that he had a neurogenic bladder. It was reported that his general condition improved and he was up and about in a wheelchair and as healing continued was able to go on weekend passes. It was documented that urinary tract infections continued and that the veteran did not follow instructions of the intermittent catheterization process. The veteran took and completed driver's training, and was found to be emotionally well compensated. A bone scan was reported to confirm severe osteoporosis, in particular at the L1 and femur on the left side. He was placed on medication for bowel care, and supplied with an electric wheelchair at discharge. Subsequently, he underwent a revision transthoracic decompression T2 to T5 with autogenous rib graft in October 1981, and application of halo-femoral traction in November 1981. In an April 1982 statement, the veteran reported that he did not have bowel or bladder control, and had lost control of his legs. He reported that his condition had worsened since May 1980 when he had been approved for aid and attendance. He underwent private medical treatment and care by Kelly Health Care where the veteran was assisted with bowel and bladder problems, and with activities of daily living from 1983 to 1986. The veteran was hospitalized at a VA facility in January 1991, for removal of bilateral staghorn caliculi. He and his wife testified at a personal hearing in July 1991, and stated generally that after his 1962 injury, he improved and that after his April 1981 surgery he developed worsening conditions including impotence, loss of bowel and bladder control and an inability to walk. In May 1994, the veteran was hospitalized for scrotal swelling. It was noted that a Foley catheter was in place, and that he had good muscle strength in the upper extremities and that plantar reflexes were lacking. In March 1997, the Board's remand requested that the veteran's claims file be referred to a VA board certified neurologist for review and expression of an opinion in answer to the following questions: (a) was the decompression of the veteran's anterior thoracic cord performed at a VA hospital in April 1981, properly undertaken, based on the clinical findings of record at the time. That is, was the surgery necessary or unnecessary; (b) did the decompression performed in April 1981 cause the veteran's underlying condition to improve, have no effect at all, or cause the underlying condition to increase in severity; (c) considering the pertinent clinical findings prior to and subsequent to the April 1981 surgery, what were the necessary consequences of the surgery. That is, what consequences were certain to result from or intended to result from the surgical treatment; (d) did the April 1981 surgery cause post operative residual disability which was not certain to result from or intended to result from it, and if so, what did such post operative residual disability consist of; (e) if an increase in disability is found, did any increase in disability result from VA's improper medical treatment, or from the continuance and natural progress of the underlying condition; (f) did VA treatment affect the natural progress of the underlying condition, and if so, in what manner. It was noted that if these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the physician. In addition the RO was informed that if any development was incomplete, including if the requested opinion did not address in full all questions presented, the report had to be returned to the specialist for corrective action. A VA examiner reviewed the veteran's claims file in August 1997. Among other things, he stated that postoperative in April 1981, the veteran had some improvement followed by an increase in weakness. The examiner offered an assessment of the veteran's case. He stated that the medical records showed that after initial fairly successful improvement in functions the veteran developed symptoms referable to compression of the spinal cord around 1980 and after a proper examination the veteran had the operation of April 1981. The examiner stated that it was not common to have a second operation for decompression for an old injury of the spinal cord, but that the circumstances and appearance of myelography provided a reasonable indication for the operation. It was stated that such an operation did not necessarily lead to improvement of the veteran's neurological deficit and that its consequences might be improvement, no change, or some deterioration. The examiner reported that it could not be clearly envisioned prior to the treatment what the consequence might be. He stated that the exception would be if a discrete new disease were found that could be surgically ameliorated, but that this was not the case here. It was reported that postoperative initial deterioration was often followed by gradual improvement and therefore it was doubtful the later spinal surgery would affect the natural progress of the underlying condition which was largely stationary of spinal cord compression and attendant neurological deficit. In a May 1999 statement, Craig Bash, M. D. reported that he had reviewed the medical examination of the veteran and that it was his opinion that the examiner failed to specifically answer the BVA questions. It was argued that the most important question which was not specifically answered was whether or not the veteran incurred additional disability as a sequela of his surgery in April 1981. It was opined that the clinical history inferred additional disability. In a May 1999 written argument, the veteran's representative pointed out that in Stegall v West, 11 Vet. App. 268 it was determined that if a report did not contain sufficient detail it must be returned as inadequate. The representative requested that the case again be remanded to the RO for an opinion which adequately addresses the specific questions of the Board. VA has a statutory duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). If the medical evidence of record is insufficient, the Board may supplement the record by seeking an advisory opinion. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). In view of the foregoing, the case is hereby REMANDED to the RO for the following development: 1. The veteran's claims file should again be referred to a VA board certified neurologist for review and expression of an opinion in answer to the following questions: did the decompression performed in April 1981 cause the veteran's underlying condition to improve, have no effect at all, or cause the underlying condition to increase in severity; considering the pertinent clinical findings prior to and subsequent to the April 1981 surgery, what were the necessary consequences of the surgery. That is, what consequences were certain to result from or intended to result from the surgical treatment; did the April 1981 surgery cause post operative residual disability which was not certain to result from or intended to result from it, and if so, what did such post operative residual disability consist of; if an increase in disability is found, did any increase in disability result from VA's improper medical treatment, or from the continuance and natural progress of the underlying condition; did VA treatment affect the natural progress of the underlying condition, and if so, in what manner. If these matters cannot be medically determined without resort to mere conjecture, this should be specifically commented upon by the physician. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested opinion does not address in full all questions presented, the report must be returned to the specialist for corrective action. 3. Thereafter, the RO should take any other necessary action, and readjudicate the issue on appeal. 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 Appeals for Veterans Claims 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. 1999) (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. If the benefit sought on appeal is not granted to the satisfaction of the veteran, a Supplemental Statement of the Case should be issued, and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. F. JUDGE FLOWERS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), 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) (1998).