Citation Nr: 1611801 Decision Date: 03/23/16 Archive Date: 03/29/16 DOCKET NO. 09-32 967 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a left eye disability, claimed as residual to left eye injury. 2. Entitlement to service connection for a chronic right arm disability. 3. Entitlement to service connection for a chronic left arm disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1973 to October 1974. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2008 rating decision in which the RO, inter alia, denied service connection for a left eye injury, a disability of the right and left arms, a right knee disability and a neck condition. In October 2008, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in August 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. In January 2011, the Veteran and her husband testified during a Board hearing before a Veterans Law Judge at the RO. A transcript of that hearing is of record. Thereafter, in August 2011, the Board remanded the claims on appeal, among others, to the agency of original jurisdiction (AOJ) for further development. Subsequently, in a June 2012 rating decision, the AOJ granted service connection for neck and right knee disabilities. Hence, those claims are no longer on appeal. In November 2013, the Veteran was informed that the Veterans Law Judge who presided over the January 2011 hearing had retired from Federal service, and she was offered the opportunity to be scheduled for another hearing before an active Veterans Law Judge. 38 C.F.R. § 20.717 (2013) [(2015)]. Later that month, the Veteran responded in the affirmative. Accordingly, in December 2013, the Board remanded the claims on appeal to afford the Veteran another Board hearing. In July 2014, the Veteran and her husband testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. This appeal has been processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS, there is a separate paperless, electronic Virtual VA file associated with the Veteran. A review of the documents in Virtual VA reveals that, with the exception of the transcript of the July 2014 hearing, the documents therein are either duplicative of those contained in VBMS or irrelevant to the claims on appeal. For the reasons expressed below, the matters on appeal are, again, being remanded to the AOJ. VA will notify the Veteran when further action, on her part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. Regarding the claimed residuals of a left eye injury, the Veteran has asserted that she sustained an injury to her left eye in a 1974 in-service motor vehicle accident, and that she has developed a left eye disability as a result. Service treatment records reflect that the Veteran was in such an accident in April 1974 and, as a result, was treated for a laceration of the left eye. Therefore, while it is clear that the Veteran suffered an in-service injury to her eye during service, it is not clear whether she suffers from a residual disability as a result of this injury. In a January 2011 letter, the Veteran's optometrist noted that the she consistently experienced excessive tearing in the left eye. On examination, the Veteran was found to have a blockage in the lacrimal canalicular system of her left eye. At that time, without further testing, the optometrist was unable to determine whether there was a physical object obstructing the canal, or if it was somehow severed or crushed by the Veteran's in-service car accident. He opined, however, that it was likely caused by the accident. In August 2011, the Board found the January 2011 letter inadequate as to the question of medical nexus and remanded the Veteran's claim for examination. The examiner was asked to diagnose any disabilities present in the Veteran's left eye and provide an opinion as to whether any such disabilities were related to her military service, to include the motor vehicle accident. In February 2012, the Veteran underwent a VA eye optometry examination. The examiner noted that the Veteran experienced constant eye watering of the left eye, blurriness, occasional misdirected eyelashes, and an increasing sensitivity to light. On examination, the VA optometrist found two misdirected lashes on the Veteran's lower eyelid which did not touch the globe of the eye. He was unable to appreciate or feel scarring at that time. The optometrist diagnosed astigmatism with presbyopia, which he determined was naturally occurring and not related to military service. He noted that, while the Veteran had a history of lid laceration on the left eye, there were no significant residuals noted and the Veteran's visual acuity and lid function were unaffected. Unfortunately, the optometrist did not discuss the blockage found in the Veteran's left eye lacrimal canalicular system, as indicated by the January 2011 record. 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); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essentially for a proper appellate decision"). In addition, at the July 2014 hearing, both the Veteran and her husband testified as to the presence of scars on the Veteran's eyelid, due to the accident. Accordingly, the Board finds that further medical findings/opinions-based on full consideration of the Veteran's documented medical history and assertions, and supported by complete clearly-stated rationale-are needed to resolve her claim for service connection. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the claims for service connection for right and left arm disabilities, the Veteran has asserted that she sustained an injury in the 1974 accident which resulted in bilateral upper extremity symptomatology, to include numbness and pain. In a May 2007 letter, the Veteran's chiropractor indicated that, based on the nature of the injuries the Veteran sustained in the automobile accident, it was her opinion that such injuries would cause injury to the cervical spine which would result in degeneration of the spine. This degeneration, the chiropractor opined, would contribute to cervical spine complaints that would manifest as bilateral hand and arm symptoms later in life. In August 2011, the Board found this opinion inadequate and remanded the Veteran's claim for examination. The examiner was asked to diagnose any disabilities of the Veteran's bilateral upper extremities and provide an opinion as to whether any such disabilities were related to her military service, to include the motor vehicle accident. In January 2012, the Veteran underwent a VA peripheral nerves examination. At that time, the Veteran was diagnosed with peripheral nerve disease, affecting her hands. She was found to have moderate pain, severe paresthesias and/or dysesthesias, and severe numbness in the bilateral upper extremities. Strength, senses and nerves were normal, and no muscle atrophy was noted. No scars were noted. The VA physician determined that the Veteran's peripheral nerve disease had the hallmarks of carpal tunnel disease. However, after consulting with a physiatrist, it was determined that further testing would better determine whether or not this was the case. In February 2012, the VA physician provided an addendum report, and determined that the Veteran's bilateral wrist and hand numbness, tingling and weakness was related to carpal tunnel syndrome and not to the in-service accident. As stated rationale, the physician noted that testing indicated no right cervical motor radiculopathy, making the Veteran's complaints more consistent with carpal tunnel syndrome. Although there were no tests to rule out cervical spine involvement, the physician indicated that, given the 30 years since the Veteran's injury, it was not likely that the motor nerves exiting her cervical spine would be intact. The Board finds that the VA opinions rendered by the January 2012 examiner, to include the February 2012 addendum, are inadequate, and they fail to reflect consideration of the Veteran's lay statements concerning the onset and continuity of symptomatology of her disabilities. Specifically, the Veteran testified during the July 2014 Board hearing that she had experienced numbness and tingling in her arms since the 1974 accident, and that such symptoms had worsened in recent years. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Accordingly, the Board finds that further medical findings/opinions-based on full consideration of the Veteran's documented medical history and assertions, and supported by complete clearly-stated rationale-are needed to resolve her claims for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra. Prior to arranging to obtain further medical opinions in connection with these claims, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file includes records from the Los Angeles VA Medical Center (VAMC) and associated clinics, dated through February 2012; however, more recent records likely exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the AOJ should obtain all outstanding VA records from February 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards private treatment), explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014)); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Los Angeles VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since February 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA ophthalmology examination, by an appropriate physician . The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. For the Veteran's left eye, the physician should clearly identify all disability/ies currently present, or present at any point pertinent to the current appeal, to include blockage in the lacrimal canalicular system and scarring (even if currently asymptomatic or resolved),. Then, for each such diagnosed disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is medically related to in-service injury or disease, to include as a residual of injury from the 1974 motor vehicle accident, as alleged. In addressing the above, the examiner must specifically consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions of record-to include the Veteran's competent assertions as to in-service eye injury, and as to the nature, onset and continuity of eye symptoms. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the January/February 2012 VA examiner. If that examiner is no longer employed by VA, or is otherwise unavailable, document that fact for the claims file, and obtain an addendum opinion from another appropriate physician based on claims file review, if possible. Only arrange for the Veteran to undergo VA examination if deemed necessary in the judgment of a competent medical professional. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should clearly identify all disability/ies of each arm (upper extremity) currently present, or present at any point pertinent to the current appeal (even if currently asymptomatic or resolved). Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically-related to service, to include as a residual of injury from the 1974 in-service car accident. In addressing the above, the examiner must specifically consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions of record-to include the Veteran's competent assertions as to the nature, onset and continuity of right and left arm (upper extremity) symptoms. All examination findings/testing results (if any), to include complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have 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. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence (to include all that and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).