Citation Nr: 1126819 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 06-31 677 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for viral conjunctivitis. 2. Entitlement to service connection for a skin disorder of the back and neck. 3. Entitlement to service connection for a seizure disorder. 4. Entitlement to service connection for a right foot disability. 5. Entitlement to service connection for a right elbow disability. 6. Entitlement to service connection for a right shoulder disability. 7. Entitlement to service connection for residuals of a head injury, to include a left eyebrow scar. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from September 1998 to September 2002. This appeal to the Board of Veterans Appeals (Board) arises from an April 2006 rating action that denied service connection for viral conjunctivitis, a skin disorder of the back and neck, a seizure disorder, right foot, right elbow, and right shoulder disabilities, and residuals of a head injury, to include a left eyebrow scar. In February 2008, the Veteran at the RO testified at a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. By decision of May 2008, the Board remanded this case to the RO for further development of the evidence and for due process development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify the appellant when further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) (See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010)) includes enhanced duties to notify and assist claimants. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notice and development action needed to fairly adjudicate the claims on appeal has not been accomplished. In May 2008, the Board remanded this case to the RO to afford the Veteran VA examinations and to obtain medical nexus opinions, accompanied by a discussion of the clinical evidence on file in the claims folder, and a clear explanation of the reasons and bases for the opinions provided. In mid-July 2008, the Veteran was furnished notice to his address of record in Rudolph, Ohio of the date, time, and place of the examinations scheduled for dates in late July, but he failed to report for the examinations. A late July 2008 VA Contact Report indicates that the Veteran notified the VA of a change of address to Wayne, Ohio. In June 2011 written argument, the veteran's representative stated that the Veteran had changed his address sometime between May and July 2008, and requested that he be re-scheduled for the VA examinations, with notice to report sent to his new address of record. Under the circumstances, the Board finds that due process of law requires that the RO should give the Veteran another opportunity to report for the VA examinations to resolve the claims on appeal, and notify him of the date, time, and place of the examinations at his current address of record. The Veteran is hereby advised that failure to report for any scheduled VA examination, without good cause, may result in denial of the claims. See 38 C.F.R. § 3.655(a), (b) (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran does not report for any scheduled examination, the RO must obtain and associate with the claims folder a copy of any notice of the date and time of such examinations sent to him by the VA medical facility at which they were to have been conducted. The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, to ensure that all due process requirements imposed by the VCAA are met, this case is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should arrange for the Veteran to undergo a VA neurological examination to determine the nature and etiology of any current seizure disorder and its relationship, if any, to his military service. The entire claims folder must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of his documented medical history and assertions. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examining physician should review the service and post-service medical records and the claims folder and render an opinion for the record as to whether it is at least as likely as not (i.e., is there at least a 50% probability), or is not at least as likely as not (i.e., there is less than a 50% probability) that any currently-diagnosed seizure disorder (a) is related to any incident of the veteran's military service, to include a December 2001 head injury, or (b) is directly related to any symptoms that the Veteran identifies as having had in service that might not be reflected in the service medical records. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 2. The RO should arrange for the Veteran to undergo a VA orthopedic examination to determine the nature and etiology of any current right shoulder, elbow, and foot disorder and its relationship, if any, to his military service. The entire claims folder must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of his documented medical history and assertions. All indicated studies and tests (including X-rays) should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examining physician should review the service and post-service medical records and the claims folder and render an opinion for the record as to whether it is at least as likely as not (i.e., is there at least a 50% probability), or is not at least as likely as not (i.e., there is less than a 50% probability) that any currently-diagnosed right shoulder, elbow, and foot disorder (a) is related to any inservice complaint or injury, including right shoulder pain, right elbow popping, and right foot tendinitis, or (b) is directly related to any symptoms that the Veteran identifies as having had in service that might not be reflected in the service medical records. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 3. The RO should arrange for the Veteran to undergo a VA dermatological examination to determine the nature and etiology of any current skin disorder of the back and neck, left eyebrow scar, and viral conjunctivitis and its relationship, if any, to his military service. The entire claims folder must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of his documented medical history and assertions. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examining physician should review the service and post-service medical records and the claims folder and render an opinion for the record as to whether it is at least as likely as not (i.e., is there at least a 50% probability), or is not at least as likely as not (i.e., there is less than a 50% probability) that any currently-diagnosed skin disorder of the back and neck, left eyebrow scar, and viral conjunctivitis (a) is related to the veteran's military service, to include a December 2001 head injury, or (b) is directly related to any symptoms that the Veteran identifies as having had in service that might not be reflected in the service medical records. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 4. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271. 5. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish the appellant and his representative an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The appellant needs take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).