Citation Nr: 1420862 Decision Date: 05/08/14 Archive Date: 05/21/14 DOCKET NO. 04-36 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for an eye disorder. 2. Entitlement to service connection for sinusitis, to include as secondary to exposure to jet fuel, jet exhaust, and other known allergens, such as mildew, mold and fungus, during military service. 3. Entitlement to service connection for allergic rhinitis, to include as secondary to exposure to jet fuel, jet exhaust, and other known allergens, such as mildew, mold and fungus, during military service. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the above issues. The Veteran timely appealed those issues to the Board. The Board notes that it initially denied this case in a June 2010 decision. The Veteran's private attorney motioned to vacate that entire decision, to include the issues for which he was apparently not the representative for-as will be discussed below-in a July 2010 motion for vacatur. The Board vacated the June 2010 decision in February 2011, further developed the claim, and again denied the case in a November 2012 Board decision. The Veteran timely appealed the case to the Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Veteran and his private attorney agreed with the Secretary for the Department of Veterans Affairs (Secretary) that the case with regards to the above issues should be vacated and remanded back to the Board for further development. The Court issued an August 2013 Court order vacating the Board's November 2012 decision with respect to the new and material claim for an eye disorder and the claims of service connection for allergic rhinitis and sinusitis. The case has been returned to the Board at this time in compliance with the Court's August 2013 remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As an initial matter, the Joint Motion for Remand indicated that the Board failed to properly discern that the Veteran's private attorney had limited representation to only the issues for asthma and nasal polyps. While the Board acknowledges that June 2008 letter and the fee agreement appear to limit representation to those two issues, the Board notes that such limitation was never noted on the VA Form 21-22a form, which failed to note any limitation of representation and, in fact, noted that the private attorney was the representative for all issues before VA. Moreover, the private attorney acted as if he were the representative with respect to all issues, particularly when he motioned to vacate all five of the issues decided in the June 2010 Board decision, not merely the two issues that he was supposedly limited in representation of. He further failed to object to or to inform VA of any limitation of representation when he received notice of adjudication as to all five issues in October 2009 and August 2012 supplemental statements of the case, and June 2010 and February 2011 Board decisions; additionally, the private attorney did not object in August 2009, when VA specifically sent the Veteran and the private attorney appropriate VCAA notice on the issues that he argued-apparently successfully-before the Court that he did not represent the Veteran. Finally, while the private attorney was apparently arguing that he was limited in representation to solely the issues of asthma and nasal polyps to the Court, the private attorney was sending a January 2013 Freedom of Information Act (FOIA) request to the St. Louis RO for VA records pertinent to the asthma and nasal polyps claims, and the sinusitis, allergic rhinitis, and eye disorder claims, as the Veteran's representative as all of those issues. Regardless, the Board now finds-in compliance with the Joint Motion for Remand and the August 2013 Court order-that the Veteran's representative with respect to the eye, sinusitis and allergic rhinitis claims is his pre-June 2008 Veteran's Service Organization (VSO) representative, Vietnam Veterans of America (VVA). On remand, the RO/AMC should send the Veteran and VVA the appropriate notice with regards to his 3 claims the subject of this decision, in compliance with the Joint Motion for Remand and the August 2013 Court order. If the Veteran does not wish to have VVA represent him with regards to those issues, then the Veteran should submit the appropriate VA Form 21-22 or 21-22a, denoting different representation. The Board and VA will, in compliance with the Court's August 2013, only recognize VVA or any other future-chosen representative as the valid representative in this case. Finally, the Joint Motion for Remand specifically noted that the Board should remand for additional VA examinations of his sinusitis and allergic rhinitis, to include opinions as to whether exposure to jet fuel, jet exhaust, and other common allergens, such as mildew, mold and fungus, during military service caused his claimed disorders. The Board remands in order to obtain those an appropriate examination and medical opinion as requested. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative, VVA, appropriate notice with respect to his claims of service connection for sinusitis and allergic rhinitis, as well as his new and material evidence claim to reopen service connection for an eye disorder. Such notice should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. Obtain any relevant VA treatment records from the any VA Medical Center, or any other VA medical facility that may have treated the Veteran, which are not currently of record and associate those documents with the claims file. 3. Ask the Veteran to identify any VA or private treatment that he may have had for his eye, sinusitis and allergic rhinitis disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Schedule the Veteran for a VA examination by an appropriate examiner in order to determine whether any sinusitis or allergic rhinitis is related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted and the results reported in detail. Following review of the claims file and examination and testing, the examiner should identify any sinus/nasal disorders found, including sinusitis and/or allergic rhinitis. The examiner should opine as to whether any sinus disorder found, including sinusitis and/or allergic rhinitis, is more likely, less likely, or at least as likely as not (50 percent or greater probability) related to the Veteran's military service, to include exposure to jet fuel, jet exhaust, and other common allergens, such as mildew, mold and fungus, therein. The examiner should discuss the Veteran's statements regarding the onset of his symptoms, and any lay statements regarding continuity of symptomatology. The examiner should additionally specifically address Dr. S.'s July 2003 opinion/letter in his/her discussion. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for sinusitis and allergic rhinitis, as well as the new and material evidence claim to reopen service connection for an eye disorder. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ J. A. MARKEY 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) (2013).