On appeal from the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A.§ 1151
(West 1991 & Supp. 1997) for additional disability resultant
from VA hospitalization and treatment.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service from January 1951 to July
1953. This is an appeal from an August 1995 rating action by
the VA Regional Office, Sioux Falls, South Dakota, which
denied entitlement to compensation under 38 U.S.C.A. § 1151
for anterior spinal artery stenosis. The case was initially
before the Board of Veterans' Appeals (Board) in September
1998 when it was remanded to obtain all volumes of the
veteran's VA medical records. The records were obtained and
have been associated with the claims file. In June 1999 the
Board obtained an opinion from a VA medical expert. Later in
June 1999 the Board referred the opinion to the veteran's
representative for review and comment. The veteran's
representative responded in September 1999. The case is
again before the Board for further appellate consideration.
REMAND
The record indicates that the veteran incurred acute
transverse myelitis at C6 - C7 of the cervical spine cord
from a vascular insult following a viral syndrome or
autoimmune phenomenon, while hospitalized by the VA from
August 27 to September 20, 1991. This caused incomplete
quadriplegia with loss of bowel and bladder function.
A June 1997 opinion of a VA physician was obtained by the
regional office. The physician indicated that signs of
paresis had been present as early as September 17, 1991, and
there was a failure to make the diagnosis until September 20,
1991. It was stated that there was a failure to examine the
veteran on September 19, 1991 and that there was no
documentation that nurses or aids notified a physician or
anyone else of neurologic deterioration. It was indicated
that early treatment with steroids and possibly Cytoxan could
in some patients result in reversal of paresis and/or
paralysis according to current medical literature.
Following issuance of a May 1998 supplemental statement of
the case and after the veteran's records were transferred to
the Board during that month, the veteran's representative
submitted a June 1998 medical opinion by Craig N. Bash, M.D.,
who reviewed the claims file and the June 1997 VA physician's
opinion. Dr. Bash concluded that the veteran did suffer
additional disability as a result of treatment at the VA
medical center: Anterior spinal artery stenosis with loss of
anal and bladder sphincter control.
In his June 1999 opinion, the VA medical expert indicated
that he did not agree with Dr. Bash that the anterior spinal
artery stenosis resulted from the August 27 to September 20,
1991, VA hospitalization. He indicated that the correct
statement was that the anterior spinal artery stenosis
occurred during that period of hospitalization. He further
indicated that he disagreed with the VA physician and Dr.
Bash that the use of steroids and possibly Cytoxan could have
had a beneficial effect. He stated that those treatment
modalities were helpful in transverse myelitis but not
anterior spinal artery syndrome as the veteran had.
In his September 1999 response, the veteran's accredited
representative indicated that the veteran had not waived
initial regional office consideration of the June 1998
statement by Dr. Bash under the provisions of 38 C.F.R.
§ 20.1304(c). The representative further requested that the
veteran be afforded an opportunity to have a hearing in
connection with his appeal. There was also submitted a July
1999 statement by Dr. Bash in which he indicated his opinion
was the same as his previous opinion in June 1998. He also
indicated that it was likely that the veteran received
suboptimal care at the VA medical center which delayed an
accurate diagnostic evaluation treatment being promptly made.
He stated that that would definitely increase the risk that
any underlying neurological or vascular problems would
progress to a more severe state.
In view of the foregoing, the case is REMANDED to the
regional office for the following action:
1. The veteran should be contacted and
asked to advise whether he wishes a
hearing in connection with his appeal.
If so, one should be scheduled for him.
2. The veteran's claim should then be
reviewed by the regional office. In
particular, consideration should be
afforded the June 1998 opinion by Dr.
Bash, the June 1999 opinion by the VA
medical expert, and the July 1999
statement by Dr. Bash. If the
determination remains adverse to the
veteran, he and his representative should
be sent a supplemental statement of the
case and be afforded the appropriate time
in which to respond.
When the above action has been completed the case should be
returned to the Board for further appellate consideration, if
otherwise in order. No action is required of the veteran
until he receives further notice.
The purpose of this REMAND is to ensure that the requirements
of due process of law are satisfied. The Board intimates no
opinion as to the disposition warranted in this case pending
completion of the requested action.
ROBERT D. PHILIPP
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)
(1999).
