Citation Nr: 1038176 Decision Date: 10/08/10 Archive Date: 10/15/10 DOCKET NO. 07-03 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a right wrist disorder. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 through January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that denied the benefits sought on appeal. In October 2008 and in August 2009 the Board remanded these matters for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claims can be properly adjudicated. These claims were remanded by the Board in August 2009 for, in pertinent part, a VA examination. Specifically, the Board stated that if the VA examiner determined that the Veteran had a current diagnosis, then the VA examiner should also provide a medical opinion regarding the etiology of the Veteran's current diagnosis. In regards to the Veteran's right wrist disorder claim, the December 2009 VA examiner, following a physical examination of the Veteran and a review of the Veteran's claims file, diagnosed the Veteran with: (1) carpel tunnel syndrome, (2) complex chronic pain syndrome, and (3) fibromyalgia. The VA examiner then determined that the Veteran currently has wrist arthralgia associated with the above three diagnoses. However, the VA examiner stated that the Veteran "does not have specific right wrist joint pathology that would be attributable to his military service with currently available information." The record is without any rationale for this conclusion. Therefore, a new medical opinion is required from an appropriate VA physician. In regards to the Veteran's right knee disorder claim, the December 2009 VA examiner, following a physical examination of the Veteran and a review of the Veteran's claims file, diagnosed the Veteran with a right knee exertional strain with chronic pain syndrome and fibromyalgia. The VA examiner then determined that the Veteran did not have any right knee pathology that the examiner was able to attribute to the Veteran's military service. The record is completely devoid of any rationale for this conclusion. Therefore, a new medical opinion is required from an appropriate VA physician. Additionally, a review of the claims file shows that the Veteran is receiving disability benefits from the Social Security Administration (SSA). The Veteran submitted a copy of his favorable decision, showing that the Veteran was unable to work because of, in pertinent part, his "arthritis." The decision does not clarify the specific joint(s) affected by the arthritis. The records considered by that agency in deciding the Veteran's claim for disability benefits are not currently in the claims file and should be obtained since they may be relevant to the Veteran's claims. See Martin v. Brown, 4 Vet. App. 136 (1993) (not only must the final SSA decision be obtained, but all records upon which that decision was based must be obtained as well); 38 C.F.R. § 3.159(c)(2) (2009). Accordingly, the case is REMANDED for the following actions: 1. Obtain the SSA records pertinent to the decision that granted the Veteran Social Security disability benefits, including copies of the medical records relied upon concerning that claim. 2. After obtaining the above records, the RO/AMC shall schedule the Veteran for an appropriate VA examination to ascertain the etiology of his currently diagnosed right wrist disorders, to include (1) carpel tunnel syndrome, (2) complex chronic pain syndrome, and (3) fibromyalgia. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment records, and offer comments and opinions addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's currently diagnosed right wrist disorders had their onset during service or are in any other way causally related to his active service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must provide rationale for any opinion given and should consider the information gleaned from the Veteran's service treatment records, post service treatment records, and any statements by the Veteran as they relate to post service symptoms or treatment. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disabilities, or whether the actual causes are due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Jones, 23 Vet. App. at 382. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2009). 3. After obtaining the above records, the RO/AMC shall schedule the Veteran for an appropriate VA examination to ascertain the etiology of his currently diagnosed right knee exertional strain with chronic pain syndrome and fibromyalgia. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment records, and offer comments and opinions addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's currently diagnosed right knee exertional strain with chronic pain syndrome and fibromyalgia had its onset during service or is in any other way causally related to his active service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must provide rationale for any opinion given and should consider the information gleaned from the Veteran's service treatment records, post service treatment records, and any statements by the Veteran as they relate to post service symptoms or treatment. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disability, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Jones, 23 Vet. App. at 382. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655. 4. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2009). _________________________________________________ MARJORIE A. AUER 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) (2009).