Citation Nr: 1502453 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 07-10 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right arm disability. 2. Entitlement to service connection for a left arm disability. 3. Entitlement to service connection for a bilateral shoulder disability with impairment of arm function. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976 and from August 1977 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board adjudicated this appeal in an April 2013 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2014, the Court issued a decision in which it vacated the Board's decision and remanded the matter for further proceedings consistent with the Court's decision. The Veteran's claims as to entitlement to higher ratings for his left and right foot disabilities are not presently before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ), which is the RO. VA will notify the appellant if further action is required. REMAND Right Arm Claim In the May 2014 decision, the Court vacated the Board's finding that the March 1995 denied the Veteran's right arm claim. The Court remanded the right arm claim for the Secretary to adjudicate the claim on the merits, including whether the duty to assist has been satisfied and whether any additional development is necessary. The Court also remanded the left arm and shoulder claims, noting that the Secretary agreed that the Board had not ensured compliance with its 2010 Remand instruction. In the following paragraphs the Board provides a highlight of the procedural background in an effort to avoid faults on remand: In January 1992, the Veteran filed a claim of entitlement to service connection for a right arm condition. The AOJ denied the claim in a July 1992 decision. The Veteran appealed that decision to the Board. In a March 1995 decision, the Board issued a decision in which it dismissed the claim on the basis that it was not well grounded. In June 1995, the Veteran filed a claim of entitlement to service connection for a bilateral arm condition that he characterized as bursitis. The AOJ denied that claim in a May 1997 decision. On appeal, the Board remanded the claims and stated that the right arm portion of the claim was denied in a final March 1995 Board decision and must be considered on a new and material basis. Since that time, including in the April 2013 Board decision, both the AOJ and the Board have determined that there has been no new and material evidence submitted to reopen the right arm claim. In the May 2014 decision, the Court reversed the Board's finding that the March 1995 Board dismissal of the Veteran's right arm claim was a denial of the right arm claim and remanded that claim for further development. The Court directed that on remand, the Secretary must adjudicate the Veteran's right arm claim on the merits, including whether the duty to assist has been satisfied and whether any additional development is necessary. As explained by the Court, its reversal of the Board's determination that the March 1995 Board decision was a final denial depends on the timing of the March 1995 Board decision with regard to two cases, Grottviet v. Brown, 5 Vet. App. 91 (1993) and Edenfield v. Brown, 8 Vet. App. 384 (1995). In Grottviet, the Court held as follows: It is necessary to ensure that the Board's decision in this is not deemed a final one. If it were, new and material evidence would be needed for reopening the claim and a readjudication instead of a decision on an original claim would follow. While in this case, competent medical evidence as to the cause of the quadriplegia could be viewed as new and material, the inertia created by a final denial in the calculus for readjudication is quite something else. We conclude that it is more appropriate to recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate. Grottviet, 5 Vet. App. at 93. In March 1995, the Board issued its decision dismissing the right arm appeal on the basis that the claim was not well grounded. In November 1995, the Court issued Edenfield v. Brown, 8 Vet. App. 384 (1995), overruling Grottviet as to the effect of a not well grounded claim. The Court provided the following explanation: It may be argued, based on Grottveit, that a claimant may incur possible and potential prejudice from any such error (disallowance on the merits) in a future submission of the same claim. This "prejudice" to the claimant stems, so the argument goes, from not having a "clean slate" when he attempts to file a new claim based on the same general facts. It is true that a veteran, who elects to file a claim without sufficient evidence to "ground" it, and consequently has it disallowed, will, should he attempt to file a claim based on the same facts, have to produce new and material evidence before the adjudicators have authority to reopen and allow the previously disallowed claim. Edenfield, 8 Vet. App. at 390. After Edenfield, new and material evidence was required to reopen a claim that had been the subject of a final decision determining that it was not well grounded. As indicated above, the law on this issue during the time period in question was in what can be described as a "state of flux". In the May 2014 decision, the Court stated that the Board's characterizations of the March 1995 dismissal as a denial are clearly erroneous. It also stated that because the March 1995 Board decision dismissed the Veteran's right arm claim, that claim has never been the subject of a merits adjudication and that rather than the stricter new and material evidence standard to which the Veteran has been held, the Veteran is entitled to the Secretary's full duty to assist in the initial adjudication on the merits. Of record is a March 1992 Medical Certificate documenting the Veteran's report of tingling in his arms and hands. Next to an "O" designation in that certificate is that there was a lump on the right deltoid since inoculation in military. In an examination section there is a reference to a "cyst" of the right deltoid secondary to a shot since the military. July 1973 service treatment records not reported pain of right shoulder. In a December 2014 letter, the Veteran's representative pointed to this evidence arguing that the Board should remand this issue to afford the Veteran a VA examination with regard to the right arm claim. The representative also argued that a remand is necessary to provide him with notice as to how to substantiate his claim (notwithstanding the fact that the representative is lawyer with extensive experience), absent the need for new and material evidence. Given these facts the Board agrees that a remand is necessary as to the right arm issue. Left Arm and Bilateral Shoulders Claims As to the left arm claim and shoulder claims, the Secretary agreed that the Board did not ensure substantial compliance with its 2010 Remand instructions as it appears that examiner who conducted the 2010 examination did not review the Veteran's claims file. The Court vacated the April 2013 Board decision on those matters and directed that the Board must ensure compliance with its February 2010 Remand instructions. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran informing him of VA's duties to notify and assist with regard to the right arm claim. The AOJ is directed that the Veteran does not need to "reopen" a claim of entitlement to service connection for a right arm disorder and therefore the letter should not include any reference to reopening the claim or any mention of new and material evidence. 2. Ensure that the Veteran is scheduled for a compensation and pension examination of both arms and both shoulders. The claims file must be reviewed by the examiner in conjunction with the examination and the examiner must note in the examination report whether the claims file was reviewed. The examiner must provide a complete rationale for all conclusions reached and is asked to accomplish the following: (a) Identify any and all chronic disorders of each arm and each shoulder (if any) that have been present at any time since 1995. In particular, identify whether the Veteran has a chronic right arm or right shoulder disorder involving an in-service inoculation at this time or since 1995. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified chronic disorder of either arm or either shoulder had onset during the Veteran's active service or was caused or aggravated by his active service. 3. Then, adjudicate the issues of entitlement to service connection for a right arm disorder, a left arm disorder, and a bilateral shoulder disorder. All issues must be adjudicated on the merits and no issue requires new and material evidence reopen. If any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).