Citation Nr: 0809766 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-24 935A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right wrist disability. 3. Entitlement to service connection for a right hand disability. 4. Entitlement to service connection for a right arm disability. 5. Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The veteran served on active duty from March 1967 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This case was previously before the Board in January 2007. The issues presently on appeal were remanded for additional development. The Board's present decision is limited to an adjudication of issues 1 and 3, above. For the reasons set forth below, the other issues on appeal are being REMANDED. FINDINGS OF FACT 1. The veteran has tendonitis of the right shoulder that can reasonably be attributed to service-connected diabetes mellitus. 2. The veteran has tendonitis of the right hand that can reasonably be attributed to service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the veteran's favor, right shoulder tendonitis is proximately due to or the result of service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2006). 2. Resolving reasonable doubt in the veteran's favor, right hand tendonitis is proximately due to or the result of service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks to establish service connection for disabilities of the right shoulder and hand as secondary to diabetes mellitus. Under the law, secondary service connection is warranted where the evidence of record shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995). The record shows that the veteran has been diagnosed with rheumatoid arthritis and tendonitis of the right shoulder and hand. With respect to rheumatoid arthritis, the Board notes that a VA examiner opined in March 2007 that the condition was not caused by diabetes mellitus. Similarly, the veteran's private physician, in June 2004, stated that diabetes mellitus was not a risk factor for rheumatoid arthritis. In light of the competent evidence, it is the Board's conclusion that the veteran's service-connected diabetes mellitus has not caused any rheumatoid arthritis of the right shoulder or hand. With respect to aggravation, the March 2007 VA examiner opined that diabetes mellitus did not aggravate rheumatoid arthritis. Although a private examiner noted in June 2004 that diabetes mellitus type II limited the use of systemic steroids for treatment of rheumatoid arthritis, the March 2007 VA examiner opined that the use of steroid treatment in diabetes mellitus type II individuals was not contraindicated. In addition, it appears from the private examiner's more recent report, dated in October 2006, that the examiner now believes that treatment for rheumatoid arthritis, including aggressive immunosuppression, would do nothing to change the veteran's shoulder and hand symptoms. Under the circumstances, it is the Board's conclusion that the veteran's service-connected diabetes mellitus has not aggravated (i.e., caused a chronic or permanent worsening of) any rheumatoid arthritis of the right shoulder or right hand. However, the Board's consideration of the veteran's claim is not limited to rheumatoid arthritis. When this case was remanded in January 2007, the Board specifically requested that a medical opinion be obtained not only as to rheumatoid arthritis, but also with respect to any other right shoulder or hand disability that was identified. The March 2007 VA examination report shows that x-rays of the right shoulder revealed calcification foccus in the soft tissues consistent with calcareous tendonosis subscapularis. No nexus opinion was provided as to those findings. Nor was any opinion provided as to past findings relating to limited mobility of the right hand. See Stegall v. West, 11 Vet. App. 268 (1998). In an opinion received in March 2007, however, a private examiner attributed the veteran's right shoulder and hand symptoms to a diagnosis of tendonitis (apparently separate and apart from rheumatoid arthritis) secondary to diabetes mellitus. The Board finds the private opinion reasonably probative and persuasive. At a minimum, it gives rise to a reasonable doubt on the question of secondary service connection. 38 C.F.R. § 3.102 (2006). Service connection for tendonitis of the right shoulder and hand is therefore granted. Because the Board is granting these claims, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)), have been satisfied with respect to question of service connection. That matter is moot. ORDER Service connection is granted for tendonitis of the right shoulder. Service connection is granted for tendonitis of the right hand. REMAND When this case was remanded in January 2007, the Board requested, among other things, that the examiner offer an opinion as to whether the veteran had a disability of the right arm, right wrist, and/or right leg separate and apart from rheumatoid arthritis and, if so, whether any such disability had been caused or aggravated by service-connected diabetes mellitus. The record shows that the veteran was examined in March 2007. Abnormalities of his right wrist and right leg were described, including synovitis of the right wrist and osteophytic degenerative changes of the right knee. The report of the examination did not make clear whether the noted abnormalities were separate and apart from rheumatoid arthritis and, if so, whether they had been caused or aggravated by service-connected diabetes mellitus. In addition, there was no mention of tendonitis in the left elbow, noted on private examination in October 2006. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now required. 38 C.F.R. § 19.9 (2007). For the reasons stated, this case is REMANDED for the following actions: 1. Arrange to have the veteran scheduled for an orthopedic examination. After reviewing the claims file, examining the veteran, and conducting any testing deemed necessary, the examiner should provide a diagnosis for each and every disabling condition affecting the veteran's right arm, right wrist, and right leg. The examiner should then provide an opinion, with respect to each diagnosed disability (to include any identified rheumatoid arthritis and/or tendonitis), as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability was caused by, or chronically or permanently worsened by, the veteran's service-connected diabetes mellitus. A complete rationale should be provided. 2. Thereafter, take adjudicatory action on the claims remaining on appeal. If any benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the veteran and his representative. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The remanded claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 Supp. 2007). ______________________________________________ DAVID A. BRENNINGMEYER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs