Citation Nr: 0006898 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-04 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an increased evaluation for chronic right epididymitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. INTRODUCTION The veteran had a period of active duty for training from March to June 1976, and served on active duty from June 1978 to July 1979. This appeal arises from a June 1997 rating decision of the Department of Veterans Affairs (VA), North Little Rock, Arkansas, regional office (RO). In June 1999, the Board of Veterans' Appeals remanded the case for additional development. Subsequently, a November 1999 continued the prior denial. REMAND As noted in the previous remand, the veteran is service connected for chronic right epididymitis, and a 10 percent evaluation is in effect under Diagnostic Code 7525. Under that code, the disability is rated as a urinary tract infection. The veteran's representative has argued that the veteran's disability should be related based on voiding dysfunction under Code 7515. The record shows that the veteran suffered a spinal cord injury at C-7 in a motor vehicle accident in May 1996. This resulted in incomplete quadriplegia and Brown-Sequard syndrome. The veteran is able to walk short distances, but uses a wheelchair most of the time. On VA examination in October 1996, the veteran complained of tenderness of the right testicle, burning on urination, marked urgency of urination, and wetting his pants once or twice per month. The examiner did not note which, if any, of these symptoms were attributable to the veteran's partial paralysis as opposed to the service connected right epididymitis. At a VA examination in May 1997, the examiner found scrotal tenderness but no objective signs of epididymitis. The veteran denied dysuria, urinary frequency or difficulty in voiding. In light of the unclear disability picture, the Board remanded the case in June 1999 for a medical opinion from a VA urologist who was to review the medical record and examine the veteran. The veteran's representative has pointed out that the examining urologist, Dr. Goodson, did not review the file prior to the examination and was thus unable to compare the pre- and post- motor vehicle accident symptoms. The RO had another physician, Dr. Miller, review the examination report and provide an opinion, however, as noted by the representative, that opinion was ambiguous, and was of little value since Dr. Miller had not in fact examined the veteran. Dr. Goodson's opinion noted that the symptoms present could possibly be attributed to benign prostatic hypertrophy or neurologic consequences of the veteran's spinal cord injury. However, there was no indication that Dr. Goodson in fact examined the veteran's prostate, and he did not comment on the finding on the October 1996 VA examination of record that the veteran's prostate was of normal size and nontender. The Board agrees with the representative's argument that Dr. Goodson's opinion is inadequate for ratings purposes since it was not based on consideration of the record, did not respond to prior finding of a normal prostate, did not demonstrate that an examination of the prostate was performed, and failed to explain the basis for the statement related to benign prostatic hypertrophy. The Board is responsible for entering the final decision on behalf of the Secretary in claims for entitlement to veterans' benefits, see 38 U.S.C.A. § 7104(a), and as such, remand instructions to the RO in an appealed case are neither optional nor discretionary. See e.g. Stegall v. West, 11 Vet. App. 268 (1998) (The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") vacated and remanded a Board's decision because it failed to ensure that the regional office achieved full compliance with specific instructions contained in a Board remand). In view of the above discussion, the veteran should be scheduled for an examination by a VA urologist who will review the entire record, then ascertain the current urological picture and express an opinion as to which of the symptoms found, if any, are attributable to the service connected epididymitis as opposed to residuals of his motor vehicle accident with partial paralysis. In view of the foregoing, the case is again remanded to the RO for the following: 1. The RO should schedule the veteran for an examination by a VA urologist to determine the nature and extent of his chronic right epididymitis. The entire claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. Such a review is required to enable the examiner to compare, to the extent necessary, symptomatology of epididymitis prior to the veteran's motor vehicle accident resulting in paralysis with symptomatology subsequent to that accident. All necessary tests should be conducted and the examiner should review the results of the testing prior to completion of the report. All urologic pathology and symptomatology, including pain, the need for drug therapy, urinary frequency and voiding dysfunction should be noted. If any such symptomatology is found, the examiner must express an opinion as to which of the symptoms are attributable to the service connected right epididymitis as opposed to the partial paralysis or any other cause. The report of examination should include a complete rationale for the conclusions reached. 2. Following completion of the foregoing, the RO must review the claims folder. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, or if the examiner does not document that the claims folder was reviewed, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Following completion of the above, the RO should readjudicate the veteran's claim. A supplemental statement of the case should be furnished to the veteran and his representative. They should be given a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. M. G. MAZZUCCHELLI Acting 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) (1999).