Citation Nr: 1311228	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  06-13 656	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina



THE ISSUES

1.  Whether the Board's May 2010 decision denying the claim of service connection for a left shoulder condition should be vacated?

2.  Entitlement to service connection for a claimed left shoulder condition.

3.  Entitlement to service connection for a claimed bilateral eye disorder, to include a pinguecula.



REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The appellant served on active duty for training from September 1978 to December 1978.  He had subsequent National Guard service to July 1990, including periods of inactive and active duty for training.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the RO.

In May 2010, the Board issued a decision that ostensibly denied the claim of service connection for a left shoulder disorder.  A review of that document shows that the order noted that the claim of service connection for a left shoulder disorder was denied, but there was no finding of fact, conclusion of law, or specific discussion relevant to the denial of that claim.  

Accordingly, the Board will vacate its prior decision to the extent that it denied the claim of service connection for a left shoulder condition and remand this unresolved matter to the RO for further development.

In May 2010 and March 2012, the Board remanded the claim of service connection for a claimed bilateral eye condition to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The claim of service connection for a bilateral eye disorder also is being remanded to the RO via the AMC, in Washington, DC.  VA will notify the appellant if further action is required on his part.


FINDINGS OF FACT

1.  In May 2010, the Board issued a decision that contained an order indicating that the pending claim of service connection for a left shoulder condition had been denied.

2.  To the extent that the May 2010 decision of the Board denied the appellant due process of law with respect to the claim of service connection for a left shoulder condition, this action must be voided so that the claim can be fully addressed on the merits.  



CONCLUSION OF LAW

The criteria for vacating the Board's May 2010 decision that denied service connection for a left shoulder condition have been met.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Based on a careful review of the record, the Board finds that the May 2010 decision that denied service connection for a left shoulder condition must be vacated. 

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, as here, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). 

A review of the May 2010 Board decision shows an order denying service connection for a left shoulder condition; however, there was no specific discussion of the issue or pertinent finding of fact or conclusion of law pertaining to this issue in the document.  

Therefore, the Board finds that the appellant has been denied due process of law with respect to that issue.

As the Board finds that good cause has been demonstrated, the May 2010 decision as to the claim of service connection for a left shoulder condition is rendered void.

Accordingly, as such, the May 2010 decision of the Board that denied the claim of service connection for a left shoulder condition is vacated.



ORDER

The May 2010 decision of the Board denying service connection for a left shoulder condition is vacated and subject to further action as discussed hereinbelow.



REMAND

The Board is bound to ensure compliance with remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  A review of the record shows that some of the prior directives from the March 2012 remand were not completed with regard to the claim of service connection for a bilateral eye disorder.  

In the March 2012 remand, the Board directed the RO to arrange for the appellant's claims folder to be reviewed by the VA examiner who prepared the August 2010 VA examination report and the December 2011 VA examination addendum report (or a suitable substitute if that examiner was unavailable), for the purpose of "providing further comment in the form of a medical opinion that is supported by a fully responsive rationale."  The examiner who prepared the August 2010 and December 2011 VA opinions provided another opinion in December 2012.  

The VA examiner provided opinions with respect to the appellant's claimed bilateral eye disorder in his December 2012 opinion; however, he did not provide all of the opinions requested in the remand directives.  

Specifically, the examiner was requested to "render an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently identified acquired eye disorder is due to an injury as claimed by the [a]ppellant or documented during a period of active duty or inactive duty for training or otherwise due to a disease process that had its clinical onset during a period of active duty for training with the National Guard?"  

In his December 2012 examination report, the examiner diagnosed pinguecula in both eyes, refractive error in both eyes, and hypertension without retinopathy in both eyes.  He provided the following opinion:

At this time as review of [the claims] file in its entirety with previous remands and today's examination, [he saw] no evidence the [appellant's] current eye examination today the patient has any current ocular entity that is due to or result of any weapon cleaning fluids splashed in his eyes during his time in service.  At this time the [appellant's] current level of pingueculae are consistent with his history of subjective burning and stinging and eye irritation as often this is the case that can result in dry eye syndrome because they are elevated.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Here, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any bilateral eye disorder that may be present.

With respect to the appellant's claim of service connection for a left shoulder condition, the Board also finds that further development is needed.

Specifically, the appellant has not been afforded a VA examination pertaining to his claimed left shoulder condition.  VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2)  (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012).

In summary, there are complaints of left shoulder pain in a March 1988 National Guard and a prior history of left shoulder pain, complaints of left arm pain and a history of surgery from a private provider, and current complaints of left shoulder pain.  As such, the Board finds that a VA examination is warranted under the standard articulated in McLendon.

Ongoing medical records should also be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Therefore, in an effort to comply with the prior remand, the Board finds that a VA medical opinion is necessary for the purpose of determining the nature and etiology of the claimed eye disorder.

Accordingly, these matters remaining on appeal are REMANDED to the RO for the following action:

1.  The RO should also take appropriate steps to contact the appellant in order to obtain copies of all outstanding VA and non-VA treatment records referable to the claimed bilateral eye disorder or left shoulder condition.  

The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) in requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.   

The RO should contact the appellant in order to afford him an opportunity to submit a release with the approximate dates of treatment.  He should also be advised that he may submit copies of any outstanding records himself.

2.  The RO should have the appellant scheduled for a VA examination in order to determine the nature and likely etiology of the claimed bilateral eye disorder.  

The examiner should review the claims folder, the May 2010 and March 2012 remands, and the body of this remand, and note such review in the examination report. 

The examiner is advised that the appellant asserts that potentially harmful weapon cleaning fluid was splashed into his eyes during an initial period of active duty for training and that the record shows he suffered a right eye corneal abrasion in June 1989 while apparently participating on active duty for training.  

Following a review of the entire claims folder, the examiner should identify all current eye disorders.

For each diagnosis identified, the VA examiner should opine as to whether it is at least as likely as not that any current eye disability is due to any injury sustained when the appellant reported splashing cleaning fluid into his eyes during his initial period of active duty for training, any injury manifested by a corneal abrasion sustained in connection with training in June 1989, or due to another event or incident of any period of active duty for training or another injury sustained during a period of inactive duty for training.  

If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 

3.  The RO should also have the appellant scheduled the for a VA examination to determine the nature and likely etiology of the claimed left shoulder condition.  

Following a review of the entire claims folder, the examiner should identify all current left shoulder disorders.

For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that any current left shoulder disability had its clinical onset during the appellant's initial period of active duty for training; is due to an event or incident of a period of active duty for training or an injury was sustained during a period of inactive duty for training.

If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 

4.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the appellant and representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  



______________________________________________
STEPHERN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals


Department of Veterans Affairs