Citation Nr: 1103511 Decision Date: 01/27/11 Archive Date: 02/08/11 DOCKET NO. 09-06 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for joint pain. 2. Whether new and material evidence has been received to reopen a claim of service connection for a disability manifested by muscle pain, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a disability manifested by muscle pain, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1988 to May 1991, including service in the Persian Gulf. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in pertinent part, denied the Veteran's claim for an increased rating for joint pain. This rating decision also denied his request to reopen his claim for service connection for muscle pain. Jurisdiction over these matters returned to the Winston-Salem, North Carolina RO subsequent to the issuance of the February 2008 rating decision. The Veteran withdrew his request for a Board hearing in April 2010. The issue of entitlement to an increased rating for joint pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a March 2003 decision, the Board denied the Veteran's claim for service connection of service connection for muscle pain, to include as due to an undiagnosed illness, because the record was negative for objective evidence of chronic muscle pain. 2. Evidence received since the March 2003 Board decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran has objective indications of muscle pain as a chronic disability that has been present to a compensable degree for more than six months. CONCLUSIONS OF LAW 1. The March 2003 Board decision that denied entitlement to service connection for muscle pain to include as due to an undiagnosed illness was final when issued. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2010). 2. Evidence received since the March 2003 Board decision denying service connection for muscle pain to include as due to an undiagnosed illness is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. The criteria for service connection for a disability manifested by muscle pain as due to an undiagnosed illness have been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the fourth requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The VCAA is not applicable where further assistance would not aid a veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decisions, further assistance is unnecessary to aid the Veteran in substantiating his claim. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Grober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Certain chronic disabilities such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). For veterans with service in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Under this law and regulation, service connection will be granted for a Persian Gulf veteran who exhibits objective indications of "a qualifying chronic disability" that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. The criteria for an undiagnosed illness and medically unexplained chronic multisymptom illnesses was revised, effective October 7, 2010, and applicable to all claims pending before VA on that date. 38 U.S.C.A. § 3.317(a)(2)(i)(B); see 75 Fed. Reg. 61,995- 97 (Oct. 7, 2010). Medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms include, but are not limited to, chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. Id. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered to be medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The following diseases will be service-connected if they become manifest in a veteran with a qualifying period of service: brucellosis, campylobacter jejuni, coxiella burnetii (Q fever), malaria, mycobacterium tuberculosis, nontyphoid salmonella, shigella, visceral leishmaniasis and West Nile virus. 75 Fed. Reg. 61,995-97 (to be codified at 38 C.F.R. § 3.317(c)(3)(ii)). The diseases previously listed will be considered to have been incurred in or aggravated by service under the circumstances outlined above even though there is no evidence of such disease during the period of service. If a veteran is presumed to be service connected for one of the diseases listed in paragraph (c)(2) above and is diagnosed with one of the diseases listed below in the time period specified for the disease, if specified, VA will request a medical opinion as to whether it was at least as likely as not that the condition was caused by the veteran having had the associated disease. Such an opinion is required for brucellosis if arthritis or infections of the cardiovascular, nervous and respiratory systems are diagnosed. For campylobacter jejuni, such an opinion is required if reactive arthritis becomes manifest within three months of infection. Such an opinion is required for nontyphoid salmonella if reactive arthritis becomes manifest within three of the infection. For shigella, such an opinion is required if reactive arthritis becomes manifest within three months of the infection. 75 Fed. Reg. 61,995-97 (to be codified at 38 C.F.R. § 3.317(d)(2)). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). New and Material Evidence Criteria A finally adjudicated claim may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The newly presented evidence is presumed to be credible for purposes of determining whether or not it is new and material. Savage, supra. For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis, and not only since the last time it was disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Muscle Pain The Veteran's claim of service connection for muscle pain was last denied in March 2003, when the Board determined the record was negative for objective evidence of chronic muscle pain. This decision was not appealed and is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. §§ 20.1100, 20.1104. The evidence considered in this March 2003 Board decision includes the Veteran's service treatment records, VA treatment records, VA examination reports and statements submitted by the Veteran's mother, brother and sister. The service treatment records were negative for any complaints, treatment or diagnoses related to muscle pains. In an April 1991 Medical Examination for Separation Statement of Option, the Veteran indicated that he did not desire a separation medical examination and such an examination was not conducted. A September 1997 letter from the Veteran's brother indicated that the Veteran's wrists and elbows would ache after they played racquetball together. He also noticed that the Veteran would favor one side of his body due to pain in the hip or ankle. It took him almost an hour in the morning before his "muscles relax[ed]." A September 1997 letter from the Veteran's mother described a recent incident in which the Veteran lost strength in his arm. At a September 1997 VA neurologic examination, the Veteran reported that he had developed weakness in his right arm at the shoulder in June 1997. This weakness had lasted about three months and had almost returned to normal, although he continued to experience some pain in his right shoulder. Upon physical examination, all muscle groups exhibited normal strength. A diagnosis of cephalgia, myosfascial in type, was made. There was no neurologic disability. Similar symptoms related to the right shoulder were reported in a September 1997 VA psychiatric examination. A September 1997 VA General Medicine examination reflected complaints of intermittent discomfort in multiple joints with primary discomfort in the elbows, hips, wrists and knees. Physical examination revealed tenderness over the left medial epicondyle, left posterior shoulder girdle without muscle spasm and the medial aspect of the right knee. The Veteran complained of pain in the left sacroiliac area with Patrick's maneuver. An accompanying bone scan revealed mild to moderately increased tracer activity in the left carpus probably in the lunate and scaphoid bone regions as well as slightly increased activity in the distal and phalangeal joint of the left middle finger. These findings were "felt to be most likely posttraumatic." The impression was "multiple joint pain, no cause found." A December 1997 VA Gulf War Registry examination identified non- specific right shoulder musculo-skeletal strain versus resolved brachial plexopathy, an anxiety reaction and chronic daily headaches. A March 1998 VA treatment note reflects the Veteran's complaints of right shoulder pain. This pain was noted to likely be brachial plexopathy that had resolved. Evidence received since the March 2003 Board decision includes a December 2007 VA orthopedic examination and various private treatment records and opinions. An August 2006 treatment summary from Dr. J. Y. reflects the Veteran's reports of progressive muscle weakness and intermittent "waxing and waning" exanthema, which he described as macular- papular and diffuse. Physical examination was negative for point-tenderness of the back and extremities. The provider opined that the Veteran's symptoms, including oral ulcerations and skin lesions, in the context of diffuse arthalgias, neuralgias and myalgias made him suspicious for a rheumatological disorder. Such disorders included Behcet's disease, lupus erythematosus and Reiters syndrome. Assessments of chronic back, shoulder, and wrist pain were made in an August 2006 private treatment note. Physical examination revealed some tenderness along the soft tissues on the right shoulder. An August 2006 private lumbar Magnetic Resonance Imaging (MRI) scan revealed severe osteoarthritis of the L5-S1 intervertebral disc space and severe degenerative changes of the L5-S1 intervertebral disc with transaction of the disc in its anterior third. An August 2006 private right shoulder MRI scan revealed findings highly suggestive of a complete tear and degeneration of the supraspinatus tendon. In addition, the increased signal identified to the biceps tendon sheath was consistent with tendinosis. An August 2006 private right wrist arthrogram revealed evidence of an immediate extravasation at the level of the angular fibrocartilage complex indicating the presence of a triangular fibrocartilage complex (TFCC) tear as well as an abruption at the level of the ulnar radial joint. A September 2006 private treatment note reflects complaints of intermittent episodes of back discomfort and bilateral lower extremity discomfort. Physical examination revealed minimal palpable tenderness at the back without spasms. There was no sciatic notch tenderness in the lower extremities. Assessments of a possible severe chronic musculoskeletal sprain/strain syndrome and a possible mechanical component to his symptoms were made. Impressions of bilateral rotator cuff tendinosis/bursitis, right greater than the left, greater trochanteric bursitis of the right hip and low back pain/degenerative disc disease at L5-S1 were reported in a September 2006 private treatment note. Follow-up in approximately four to six weeks was recommended. An October 2006 treatment summary from Dr. D. P., a private rheumatologist, noted the Veteran's complaints of a prominent degree of temporomandibular (TMJ) pain as well as pain in the hands, wrists, low back, right ankle and bilateral plantar fascia. A work-up had revealed abnormalities in the musculoskeletal system. Extensive imaging data obtained on the right wrist, lumbar spine, bilateral shoulders and TMJ regions revealed findings more in keeping with degenerative changes that have possibly resulted from chronic inflammatory disease. Physical examination revealed diffuse tenderness over some of the affected areas including the TMJ region, right shoulder and right wrist. There was some mild tenderness in the left anterior ankle. An impression of arthalgias with "HLAB27" positivity with questionable significance was made. The provider was unsure of the cause of the Veteran's symptoms, as the findings on the imaging data were somewhat nonspecific for chronic inflammatory disease. It was possible that he suffered from synovitis in multiple joints in the past which had led to cartilaginous, ligamentous and tendinous disruptions in abnormalities noted in the studies. Otherwise, the provider saw little evidence of active inflammatory disease as the Veteran did not fulfill the criteria for specific spondyloarthropathy. An October 2006 private treatment note indicated a positive HLA- B27 test. The provider believed that most of the Veteran's pain stemmed from an immunologic-type inflammatory process. There was no active synovitis at that time. A November 2006 private treatment summary from Dr. J. Y. detailed the Veteran's complaints of severe back pain, right shoulder pain and right wrist pain. MRI studies of the back, wrist and shoulder revealed evidence of multiple ligamentous injuries and enthesiopathies as well as extensive degenerative disc disease in the spine, which was "most unusual given his age and lack of acute trauma." The provider noted that he was concerned about the possibility of an autoimmune disorder or spondyloarthropathy and preceded with a medical work-up. A sizeable number of these disorders might be seronegative and therefore "essentially a clinical diagnosis." Testing for genetic tissue markers was positive for HLA-B27 which was strongly suggestive of Reiter's syndrome. The provider noted that he was "highly suspicious" of this clinically-based diagnosis, due to the Veteran's constellation of symptoms and this diagnostic work-up. A rheumatology referral noted that the Veteran's symptoms and extent of joint involvement was highly unusual for a patient of his age and general health. His treating hand surgeon was noted to agree with the diagnosis of Reiter's syndrome. In a December 2006 statement, the Veteran reported that he had tested positive for HLA-B27, which had a strong association with spondyloarthropathies such as Reiter's syndrome. He had been informed that his condition and symptoms were compatible with such a diagnosis. He continued to experience severe pain in multiple joints and in his low back, despite medication and physical therapy. A December 2007 VA orthopedic examiner noted that a positive HLA- B27 was not conclusive for diagnosis, as such a finding was positive in 60 to 80 percent of patients with Reiter's syndrome. On clinical examination, the Veteran had full range of motion of joints with some tenderness to palpation, normal strength and normal deep tendon reflexes. There was a history of normal nerve conduction studies. The examiner explained that Reiter's syndrome was a condition of reactive arthritis characterized by the inflammation of the joints from infections, which was not mentioned in any of the numerous clinic visits to private physicians. In addition, such a condition was an asymmetric arthritis usually affecting the knees, ankle and metatarsophalangeal (MTP) joints. There was no clinical evidence of arthritis in the shoulders, wrists, hip or ankle and the nature of bilateral joints which were affected was not asymmetric. The examiner noted that the Veteran's private physician had made no definite diagnosis of Reiter's syndrome. The Veteran did not want to be labeled with a connective tissue disorder due to anticipated complications with insurability. Following this examination and a review of the claims file, including the private treatment notes, the examiner opined that it was less likely than not that the Veteran's complaints of joint pain, fatigue/sleepiness, muscle pain, canker sores, and lichen simplex chronicus constituted a diagnosis of Reiter's syndrome. The Veteran reported bilateral wrist pain, bilateral shoulder pain and lumbar spine pain at a December 2007 VA orthopedic examination. Following a physical examination and a review of the Veteran's claims file, including the various private treatment notes and diagnostic studies, diagnoses of a bilateral shoulder rotator cuff tear, bilateral wrist internal derangement including the scapholunate ligament and degenerative disc disease of the spine were made. Again, the Veteran's claim of service connection for muscle pain to include as due to an undiagnosed illness was previously denied in a March 2003 Board decision as the record was negative for objective evidence of chronic muscle pain. As such, objective evidence of chronic muscle pain is required to reopen his claim. Muscle tenderness to palpation was found during the December 2007 VA orthopedic examination and diffuse tenderness in the right shoulder and right wrist were noted in an October 2006 private treatment summary, representing objective evidence of muscle pain. Thus, such evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. The requirements under 38 C.F.R. § 3.156 have thus been met and the Veteran's claim of service connection for a disability manifested by muscle pain is therefore reopened. The evidence of record is conflicting as to whether the Veteran's reported symptoms constitute a diagnosed disability. Although his complaints of muscle pain in November 2006 were "strongly suggestive" of Reiter's syndrome, the December 2007 VA orthopedic examiner declined to find such a diagnosis and provided a detailed explanation as to why this diagnosis was not appropriate for the Veteran's symptoms. Therefore, it cannot be said that the Veteran's complaints of muscle pain have been attributed to a diagnosed illness. Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2010), degenerative arthritis established by X-ray findings with limitation of motion that was noncompensable warrants a 10 percent rating. The record establishes Veteran degenerative changes in multiple joints, including in his right wrist, lumbar spine, bilateral shoulders and TMJ region. His disability has been present to a degree of 10 percent or more since at least October 2006. Based on the above, chronic qualifying disability has been shown and the claimed muscle pain meets the criteria for service connection under the provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Accordingly, service connection is granted. ORDER New and material evidence having been received, the claim for service connection for a disability manifested by muscle pain due to an undiagnosed illness is reopened. Service connection for a disability manifested by muscle pain due to an undiagnosed illness is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND In a February 2009 letter, the Veteran alleged that his joint pain and symptoms had significantly worsened since his last VA examination. He specifically indicated that he had been diagnosed with severe progressive arthropathy in multiple smaller joints, including his right hip, ankles, right acromioclavicular (AC ) joint, bilateral feet and TMJ joints. The December 2007 VA examination, the last VA examination of record, did not address these joints. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In light of the February 2009 letter, a new VA examination is required to determine the current severity of the Veteran's service-connected joint pain. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current nature and severity of his service-connected joint pain disability. The claims file must be made available to the examiner, and the examiner should indicate in the report or addendum that the file was reviewed. All indicated diagnostic testing and diagnostic studies should be undertaken. The examiner should identify all current manifestations of the service connected joint pain to include all affected joints. The examiner should report the current ranges of motion. The examiner should also determine whether the joint pain disability is manifested by weakened movement, excess fatigability, pain, incoordination or flare- ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, pain, incoordination or flare-ups. The examiner should further report the point, if any, in the ranges of motion when pain is evident. 2. Review the examination reports to ensure that they contain all information and opinions requested in this remand. 3. If any claim on appeal remains denied, the RO should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2010). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs