BVA9502297 DOCKET NO. 93-01 772 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to special monthly compensation based on loss of use of both feet. 2. Entitlement to assistance in the acquisition of specially adapted housing. 3. Entitlement to a special home adaptation grant. 4. Eligibility for an automobile or other conveyance. 5. Entitlement to adaptive equipment for an automobile. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant, a veteran, served on active duty from May 1967 to January 1971. The Department of Veterans Affairs (VA) Louisville, Kentucky Regional Office (RO) denied the benefits sought. Hearings were held at the RO in November 1989, November 1990, and February 1992. REMAND The RO advised the veteran by letter on July 19, 1991 that eligibility for an automobile or other conveyance was denied and that entitlement to adaptive equipment for an automobile was denied. The veteran then advised that these issues were issues on appeal at his February 1992 RO hearing. The hearing officer's decision in July 1992 covered these issues, but they have not been included in subsequent supplemental statements of the case. They should have been covered because the February 1992 hearing testimony is the equivalent of a notice of disagreement and for the further reason that they are inextricably intertwined with the first issue on the title page of this decision. The veteran has been granted service connection for postoperative residuals of removal of ependymoma of the spinal column, currently evaluated as 60 percent disabling; postoperative residuals of a left knee injury, currently evaluated as 10 percent disabling; bladder dysfunction currently evaluated as 10 percent disabling; and a neurogenic bowel currently evaluated as 10 percent disabling. A total rating for compensation purposes based on individual unemployability has been in effect since October 1987. A question was raised about the adequacy of the transcript of the February 1992 RO hearing by the veteran and his representative in August 1994. This matter may be resolved by placing a copy of the tape of that hearing in the claims folder and by providing the veteran a copy of the tape so that the veteran and his representative may advise the RO and the Board with particularity as to what testimony, if any, was not included in the transcript. It has been indicated that the veteran has already been furnished with a copy of the transcript of the February 1992 hearing. In June and July 1992 a VA field examiner conducted a field investigation to determine whether the veteran is unable to stand, walk or otherwise use his lower extremities. All of the persons interviewed declined to sign any statements, or to make or any declarations of any type, and requested that their names not be used. Additionally, the field examiner's report as to what these people stated indicates that their comments were equivocal and failed to definitively resolve what is essentially a medical question. It appears that the veteran was later made aware of the contents of the field examination by his representative. In February 1994 he submitted a rebuttal to information obtained at the time of the field investigation. The Board finds this rebuttal to be credible and is determined to resolve the essential questions involved in this appeal on a medical basis. The ependymoma existed at the L2 level and was surgically excised in 1974. During VA hospitalization from June to July 1988 a dorsal column stimulator was implanted. It was indicated at the time that a myelogram in September 1987 revealed T12 - L1 arachnoiditis. A subsequent VA hospitalization in November 1991 occurred in order to remove the dorsal column stimulator . In April 1991 the veteran was hospitalized by the VA for evaluation of chronic pain. During VA hospitalization in October 1991 it was noted that the veteran was able to ambulate, but due to pain, he utilized a wheelchair. On a VA examination in March 1992, reported on VA form 21-2680, it was indicated that the veteran lost the use of both lower extremities because he could not bear weight on his feet and had poor balance due to low back pain. On a VA spinal cord examination, also conducted in March 1992 by another VA physician, diagnoses included failed back syndrome, arachnorhinitis, and incapacitating pain of the back and lower extremities. A motor evaluation of the muscles of the lower extremities was not compatible with loss of use of either foot. On the most recent VA neurological examination in August 1992, it was noted that in the lower extremities, the veteran had give away weakness in all muscles tested. The tone of the muscles was well preserved but the veteran was unable to walk for further testing. It was noted that the major problem was pain and that the neurologic examination was difficult to assess due to pain. It was also indicated that the veteran did not give full effort and exhibited an over reaction to the tests being performed. To the extent possible, we need to have a medical determination as to whether the pain in the spine and lower extremities precludes weight bearing, balance or propulsion in either foot. The case is REMANDED to the RO for the following action: 1. The RO should provide the veteran with a copy of a tape the February 1992 RO hearing and also put a copy of the tape in the claims folder. The veteran should be requested to state what testimony was offered at the hearing that was not reflected in the transcript, which he was furnished at an earlier time. 2. The complete VA hospital clinical records folder and complete VA outpatient treatment records folder should be obtained for association with the claims folder. The veteran should be accorded an examination by a board of two physicians consisting of a neurologist and a physiatrist (not a psychiatrist) to ascertain the remaining function of each foot in terms of weight bearing, balance, and propulsion. All VA outpatient treatment records and hospital clinical records should be reviewed in detail by both physicians prior to the examination. Clinical findings on the examination should be reported in detail. To the extent that motor function is limited by reported pain, the physicians should express an opinion as to whether such pain is organically based or whether it represents exaggeration or malingering. As part of the examination, the range of motion of the left knee should be reported, in view of the fact that there is also a service-connected postoperative left knee disorder. Thereafter, if any action remains adverse to the appellant, the case should be returned to this Board in accordance with the usual appellate procedures. This should include, if in order, a supplemental statement of the case covering issues (4) and (5) on the title page of this decision. No action is required of the appellant until he is further informed. The purpose of this REMAND is to provide the appellant with due process of law and to procure clarifying data. BRUCE E. HYMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1993).