Citation Nr: 20007490 Decision Date: 03/19/20 Archive Date: 03/19/20 DOCKET NO. 17-08 510 DATE: March 19, 2020 REMANDED Entitlement to service connection for lupus is remanded. Entitlement to service connection for loss of eyesight, secondary to lupus is remanded. Entitlement to service connection for chest pain, secondary to lupus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1964 to November 1966, with additional periods of service in the Army National Guard. This case comes on appeal of an October 2016 rating decision. In January 2018, the Veteran testified before the Board at a videoconference hearing. These matters were previously before the March 2018. At that time, the Board remanded these issues for further development, as will be discussed below. Additionally, the Board remanded the issue of entitlement to service connection for hearing loss of the left ear. Upon remand and further examination, the agency of original jurisdiction (AOJ) granted entitlement to service connection for hearing loss of the left ear in a November 2019 rating decision, effective the date of the Veteran’s claim. That issue is now considered to be granted in full. 1. Entitlement to service connection for lupus is remanded. 2. Entitlement to service connection for loss of eyesight, secondary to lupus is remanded. 3. Entitlement to service connection for chest pain, secondary to lupus is remanded. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in its March 2018 remand, the Board acknowledged the Veteran’s claims that he had suffered insect bites during a National Guard training period in 1968, subsequent to active duty service, and that he had been told these insect bites were the cause of his currently-diagnosed lupus. As a result, the Board instructed the AOJ on remand to verify the Veteran’s periods of active duty, active duty for training, and inactive duty training in the Army National Guard following the Veteran’s November 1966 discharge from active duty. Subsequent to such action, the AOJ was instructed to request all National Guard service treatment records and associate them with the record, with any negative responses properly documented in the record. Subsequent to the Board’s remand, on September 24, 2018, it appears that the agency of original jurisdiction (AOJ) submitted a request to the National Personnel Records Center (NPRC) for the Veteran’s complete service treatment records and personnel file. The request only identified the Veteran’s active duty service periods (1964 to 1966), and did not address the Veteran’s National Guard service. Among the records associated with the file post-remand are a report of active duty for training at Fort Campbell, Kentucky from June 16, 1967 to June 30, 1967, as well as a notice that the Veteran was discharged from the United States Army Reserve on December 10, 1970, with service in the standby reserve beginning December 12, 1969. The AOJ did not verify all periods of active duty for training or inactive duty for training, and there is no indication that efforts were made to identify and obtain medical records specifically from this post-active duty period. Moreover, if such efforts were made, there is no evidence of a negative response, or that the records added to the file represent all available records through 1970. Accordingly, on remand, the AOJ should fulfill the prior remand’s instruction by making all reasonable efforts to verify service dates, and obtain outstanding records related to the Veteran’s service after separation from active duty. Additionally, in October 2019, the Veteran underwent a VA examination for lupus. The examiner provided a negative nexus opinion regarding an in-service etiology of lupus. As was noted by the Veteran’s representative in a January 2020 brief, this opinion, however, was based in part on medical findings located in the Veteran’s active duty service treatment records dated through 1966, prior to the alleged injury. Indeed, although the Veteran had testified that he suffered from insect bites during Guard service in 1968, the examiner based his opinion in part on the premise that there was nothing in service treatment records through 1966 to indicate an in-service onset or causation of lupus. On remand, a new opinion must be obtained—after all reasonable efforts have been made to obtain the Veteran’s post-active duty service treatment records—in which the examiner considers the Veteran’s claim that the insect bites he suffered in 1968 led to the development of lupus. The remaining matters are inextricably intertwined with service connection for lupus, therefore they must be remanded as well. On remand, if further development indicates that lupus was caused by or incurred in service, medical examination should be provided to determine whether there is a causal nexus between the Veteran’s loss of vision as well as chest pain and any service-connected condition. The matters are REMANDED for the following action: 1. Verify all of the Veteran’s periods of active duty for training, and inactive duty for training in the Army National Guard following his November 1966 discharge from active duty. Request all National Guard or Army Reserve service treatment records for the period from November 1966 through December 1970 and associate them with the record. Any negative responses should be properly documented in the record. 2. After exhausting all reasonable efforts to obtain the Veteran’s National Guard or Army Reserve treatment records, arrange for an appropriate medical examiner to provide an opinion regarding the Veteran’s diagnosed lupus. The entire claims file must be made available to the examiner, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that lupus is the result of disease or injury incurred in or aggravated by insect bites incurred during a National Guard training period. Specifically, the examiner should address the Veteran’s contention that he incurred insect bites during training at Fort Campbell in 1968 that later developed into recurring rashes and sores, and eventually pain, stiffness, and swelling. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 3. If, and only if, the opinion requested in directive #2 finds that it is at least as likely as not that lupus is the result of disease or injury incurred in or aggravated by service, arrange to have the Veteran scheduled for a VA eye examination. The entire claims file, must be made available to the examiner, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and made available prior to the completion of the examiner’s report, and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities associated with loss of eyesight, to include cataracts and plaquenil maculopathy of the left eye. Then, with respect to each such diagnosed disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is caused or aggravated beyond its natural progression by lupus, and/or medication the Veteran has taken for the treatment of lupus. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 4. If, and only if, the opinion requested in directive #2 finds that it is at least as likely as not that lupus is the result of disease or injury incurred in or aggravated by service, arrange to have the Veteran scheduled for a VA examination of cardiopulmonary conditions. The entire claims file must be made available to the examiner, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and made available prior to the completion of the examiner’s report, and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities associated with the Veteran’s claims of chest pain, to include sinus bradycardia, left ventricular hypertrophy, pleurisy, and pleural effusion. Then, with respect to each such disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is caused or aggravated beyond its natural progression by lupus or medication the Veteran has taken for the treatment of lupus. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 5. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.