Citation Nr: 1326340 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 04-39 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for loss of use of the left arm, claimed to have resulted from medical treatment received at a Department of Veterans Affairs Medical Center (VAMC) in Palo Alto, California, in October 2001. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right arm disability, claimed as secondary to loss of use of the left arm. 3. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for depression, claimed as secondary to loss of use of the left arm. REPRESENTATION Appellant represented by: Mr. Thomas Higgins, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1965 to November 1967. These matters come to the Board of Veterans' Appeals (Board) from a November 2012 Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court), which vacated a July 2011 Board decision, denying claims for compensation pursuant to 38 U.S.C.A. § 1151 for loss of use of left arm and for secondary claims for loss of use of right arm and for depression. The Court remanded these matters to the Board for actions consistent with its opinion. As a matter of background, these matters originally appealed from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In April 2007, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In a July 2007 decision, the Board denied the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2008, while the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for partial remand, requesting that the Court vacate and remand the Board's July 2007 decision. In June 2008, the Court granted the joint motion, vacating the Board's July 2007 decision and remanding the claim to the Board for compliance with directives that were specified by the joint motion. The secondary issues of entitlement to 38 U.S.C.A. § 1151 benefits for the right shoulder disorder and depression were considered intertwined with the left shoulder disorder claim. In October 2010, the Board sought an Independent Medical Expert (IME) opinion in connection with the left shoulder claim. An opinion was rendered in December 2010, and the case has been returned to the Board for further appellant review. Thereafter, the Board denied the claims in the July 2011 decision, and the Veteran appealed, giving raise to the November 2012 Memorandum Decision from the Court Order. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the November 2012 Memorandum Decision, the Court found, in part, that the Board failed to comply with the June 2008 joint motion for remand instructions, which were endorsed by the Court remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Court is not complied with, the Board itself errs in failing to insure compliance. Id. Specifically, the Court noted that the Board failed to take appropriate actions to ascertain whether VA had made efforts to obtain records from the identified VA Patient Representative's Office. In reference to the VA Patient Representative's Office records, the parties to the June 2008 Joint Motion for Remand noted that "Appellant has identified these records on numerous occasions - stating that this office should substantiate his claim that he contacted his VAMC to schedule physical therapy. While the record and claims file contain numerous VAMRs, they are purely medical in nature. By contrast, Appellant has identified situational evidence that might be on record in the VA Patient Representative's correspondence records." Although, in the July 2011 decision, the Board previously found that it was unlikely based on the Veteran's statements that any pertinent outstanding records existed in the VA Patient Representative's Office, the Board must abide by the Court's 2012 memorandum instruction to attempt to obtain any available documents on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide additional information regarding any conversations, statements and correspondences with the VA Patients Representative's Office, including the date, time, means of interaction (e.g. in person, or via phone or email), and the VA personnel with whom he spoke. 2. Attempts should be made to obtain any pertinent records or correspondences from the identified VA's Patient Representative's Office regarding the Veteran's attempts to obtain authorization for post-operation physical therapy following his October 2001 surgery. 3. All efforts to locate these records or correspondences should be documented for the file. If it is determined that no such reports were generated or that they are unavailable, a Memorandum should be prepared for the file, explaining all actions taken and the reasons for the conclusion that the records are unavailable. In addition, notify the Veteran of the unsuccessful attempts and ask him provide any additional relevant copies of correspondence from the VA Patient Representative's Office that he has in his possession. 4. Then, readjudicate the issues of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for loss of use of left arm and for secondary loss of use of right arm and depression. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).