Citation Nr: 1630961 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 08-19 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence was received to reopen a claim of entitlement to service connection for sarcoidosis. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for dyslexia. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia. This matter was previously before the Board in October 2011 wherein the Board remanded the case so that the Veteran could be scheduled for a video conference transmitted from the Lawrenceville (Virginia) Correctional Center. In May 2012, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. This matter was then before the Board in August 2012, at which time the issue of service connection for dyslexia was denied, and other issues were remanded for additional development. Subsequently, the Veteran filed a timely appeal of the denial of service connection for dyslexia, and in a January 2014 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial and remanded the matter for compliance with the terms of the Court decision. The case was returned to the Board in April 2015, wherein the issue was remanded for additional development. The issue, along with the previously remanded issues, is now returned to the Board. During the pendency of this appeal, in February 2014, the Veteran submitted an Appointment Of Veterans Service Organization As Claimant's Representative (VA Form 21-22) appointing the National Association for Black Veterans, Inc., as his representative. The Veteran's service treatment records are apparently unavailable. As such, there is a heightened obligation to assist the Veteran in the development of his case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as this, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files associated with the Veteran's claim. All records in such files have been considered by the Board in adjudicating this matter. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, in April 2016, the Veteran submitted an Authorization And Consent To Release Information To The Department Of Veterans Affairs (VA) (VA Form 21-4142) identifying treatment at the Walson Army Hospital in Fort Dix, New Jersey, in 1974 to 1975. In May 2016, the VA Private Medical Records Retrieval Center rejected the medical records request indicating that the provider listed in the request was non-private. It does not appear that the AOJ subsequently undertook any additional efforts to secure any available treatment records form the Walson Army Hospital from any other appropriate sources. VA has a duty to request all available and relevant records from federal agencies. See 38 C.F.R. § 3.159(c)(2), (c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, on remand, efforts to obtain the identified medical records from Walson Army Hospital must be undertaken. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. With specific regard to the issue of service connection for dyslexia, in the April 2015 remand, the Board requested that a VA physician opine as to whether the Veteran's diagnosed dyslexia was a congenital or developmental disorder, and if so, whether it was a congenital or developmental defect or disease. The Board further requested clarification, if a congenital or developmental defect, whether it was at least as likely as not that there was a superimposed injury or disease in service that resulted in additional disability. If a congenital or developmental disease, whether it was clear and unmistakable that such existed prior to active service and not aggravated during service. A VA examination report dated in December 2015 shows that a VA psychologist (not a physician) diagnosed the Veteran with dyslexia. The Board finds that the psychologist, who conferred with a neuropsychologist and reviewed testing appropriate for the examination request, was a satisfactory examiner under the circumstances. However, while the VA examiner opined that the dyslexia was less likely than not a result of a service-connected injury, the examiner did not address whether the dyslexia was a congenital or developmental defect or disease, nor whether there was a superimposed injury or disease in service that resulted in additional disability, or whether it was clear and unmistakable that such existed prior to active service and not aggravated during service. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and the Board itself commits error in failing to ensure this compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board's failure to ensure that the requested medical opinion is obtained would constitute a violation of his due process rights. Dyment v. West, 13 Vet. App 141 (1999). As such, the Board finds that the issue must be remanded for compliance with the prior remand instruction. With regard to all of the issues on appeal, in April 2015, the Board directed that the AOJ take appropriate action to afford the Veteran's representative from the National Association of Black Veterans, Inc., with an opportunity to review the claims file and complete a VA Form 646 or other written argument in support of the current appeal. A review of the Veteran's claims file does not show that the National Association of Black Veterans, Inc., was provided with the opportunity to complete a VA Form 646 or other written argument in support of all issues on appeal. Therefore, in order to preserve the Veteran's due process rights, the National Association for Black Veterans, Inc., must be given an opportunity to review the record and provide argument in response to the claims on appeal. See VA Adjudication Manual M21-1 MR, Part I, Chapter 5, Section F, Topic 2 (2016). Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). The Board notes that during the pendency of this appeal, the Veteran notified the AOJ of a change in his mailing address. Thereafter, however, a Supplemental Statement of the Case dated in January 2016 was sent to his former mailing address and returned as undeliverable. In correspondence dated in March 2016, the Veteran indicated that he was provided a copy of the Supplemental Statement of the Case from his representative. Nonetheless, as this matter is being remanded for the reasons set forth above, the Board finds that the Veteran must be provided with an updated Supplemental Statement of the Case at his updated mailing address. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The AOJ shall undertake efforts to obtain the identified medical records from Walson Army Hospital for all appropriate federal sources. If no records are obtained, the AOJ must prepare a Memorandum of Formal Finding of Unavailability of Service Treatment Records outlining the steps taken to retrieve the identified treatment records, and notify the Veteran and his representative in accordance with VA regulations, giving the Veteran and his representative adequate time to respond. 3. The AOJ shall refer the claims file and a copy of this remand to the VA psychologist who conducted the December 2015 examination for an addendum opinion. The examiner is requested to address each of the following: (a) Indicate whether or not dyslexia is a congenital or developmental disorder, and if so, whether it is a congenital or developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990)]. (b) If it is a congenital or developmental defect, please opine whether it is at least as likely as not that there was a superimposed injury or disease in service that resulted in additional disability. (c) If it is a congenital or developmental disease or is not a congenital or developmental disorder, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that such existed prior to active service. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing dyslexia WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress. (d) If dyslexia is not congenital or developmental, state whether it is at least as likely as not that the diagnosed dyslexia had its onset in service, or is otherwise related to service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects such reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for dyslexia during service in the Veteran's claim file cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. The AOJ will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case at the most recent mailing address of record. An appropriate period of time must be allowed for response. 5. After the above-cited development has been accomplished, the AOJ must take all indicated action to afford the Veteran's representative from the National Association of Black Veterans, Inc., with an opportunity to review the claims file and complete a VA Form 646 or other written argument in support of the current appeal. If the representative cannot be contacted, the Veteran shall be so notified to ensure that his due process rights are protected. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).