Citation Nr: 1301422 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-28 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability manifested by joint pain. 2. Whether new and material evidence has been received to reopen a claim for service connection for a wound to the left leg resulting in numbness. 3. Whether new and material evidence has been received to reopen a claim for service connection for right fifth finger joint deterioration. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to November 1979. This matter came to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing in February 2009; the transcript of that hearing is of record. The Board remanded the Veteran's claim for service connection for a disability manifested by joint pain in September 2009. In a September 2011 decision, the Board, in pertinent part, denied entitlement to service connection for a disability manifested by joint pain. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per an April 2012 Joint Motion for Partial Remand (JMPR) and Court Order, the portion of the Board's decision which denied entitlement to service connection for a disability manifested by joint pain was vacated and remanded for compliance with the instructions in the JMPR. The issues of entitlement to service connection for posttraumatic stress disorder and tinnitus, as well as entitlement to a temporary total rating due to convalescence pursuant to 38 C.F.R. § 4.30 (2012) for right knee surgery have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A Remand confers on the Veteran the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated, moreover, 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 as will be discussed below, the fact that the development sought by the Board in this case has not been fully completed, another remand is now unfortunately required. 38 C.F.R. § 19.9 (2012). As noted, in September 2009 these matters were remanded to afford the Veteran an additional VA examination. The Board directed that the Veteran be provided with a VA examination and instructed the examiner to address the Veteran's claim that he has a disability manifested by joint pain that is attributable to the saturation diving he did while in service. In particular, the Board instructed the examiner to discuss VA Training letter 07-04 (July 2007), which concerns the long-term effects of saturation diving, including arthritis and joint pain, in the context of an etiological opinion. In November 2009, the Veteran underwent a VA examination for the purpose, in pertinent part, of determining whether he currently experiences a disability manifested by joint pain that is etiologically linked to his time on active duty. The claims folder was provided to the examiner for review, and an examination was accomplished. The examiner noted the Veteran's in-service history as a saturation diver and acknowledged his complaints of right knee pain but did not acknowledge or discuss the April 2005 VA examiner's diagnosis of bilateral hand osteoarthritis. Further, the examiner failed to discuss the Veteran's in-service complaints of pain in his knees and elbows following a lengthy saturation dive, which resulted in a diagnosis of decompression sickness in September 1978. The examiner diagnosed the Veteran only with chondromalacia patella of the right knee, resolved in 1979, and found that "it is less likely as not the Veteran's current condition is related to service ... including as the result of decompression sickness." The examiner further opined that the Veteran's "current findings are compatible with normal age related process", but she failed to identify the specific findings to which she was referring. In addition, no discussion of VA Training Letter 07-04 was included in the opinion, and no mention of a disability manifested by joint pain was made. Per the Court's April 2012 Order enacting the JMPR, the November 2009 VA examination report was insufficient, as the VA examiner failed to address VA Training Letter 07-04, as well as the diagnosis of osteoarthritis of the bilateral hands assigned to the Veteran during his April 2005 VA examination. The Board further notes that since the September 2011 Board denial of the Veteran's claim, he has submitted additional medical information addressing the existence of an etiological link between his in-service saturation diving and his claimed disability manifested by joint pain. To that end, the Veteran's private treating physician submitted a letter dated in July 2010 in which he assigned the Veteran a diagnosis of osteoarthritis in his fingers and thumbs that is premature for his age. The physician stated that, having reviewed the effects of saturation diving on joints, he "would feel that the arthritis is related to his saturation diving at this point." (This evidence was not associated with the Veteran's claims file as available to the Board at the time of the September 2011 decision, having been maintained at the St. Petersburg RO during the pendency of the appeal.) The Board thus finds that Remand is necessary for an another opinion in compliance with the instructions in the September 2009 Board Remand and the April 2012 JMPR. On remand, the examiner must provide full diagnoses for each disability manifested by joint pain that the Veteran currently experiences and must offer a well-reasoned opinion as to whether each such disability is etiologically linked to his time on active duty, to include his saturation diving. In the context of the opinion, the examiner must thoroughly discuss VA Training Letter 07-04, as well as the diagnosis of osteoarthritis of the bilateral hands as assigned by both the April 2005 VA Examiner and the Veteran's private physician in July 2010. In a September 2011 rating decision, the RO denied the Veteran's petition to reopen previously denied claims for service connection for a wound to the left leg resulting in numbness and for right fifth finger joint deterioration. In October 2011, the Veteran submitted correspondence expressing disagreement with the denial of his petition to reopen the previously denied claims. This matter must be returned to the RO for appropriate consideration and issuance of a statement of the case with regard to such issues. Manlincon v. West, 12, Vet. App. 238 (1999). In view of the foregoing, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the etiology of any currently diagnosed disability manifested by joint pain. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner must thoroughly respond to the following: a) Please provide a diagnosis for each disability manifested by joint pain that the Veteran currently experiences, including but not limited to osteoarthritis in the knees and hands. b) For each such disability diagnosed, indicate whether it is at least as likely as not (a 50% or higher degree of probability) that it had its clinical onset in service or is otherwise related to active service, including to the Veteran's work as a saturation diver while on active duty. In formulating the opinion, the examiner must review, address, and thoroughly discuss the following: * the Veteran's service treatment records, including the September 1978 complaint of elbow and knee pain following a saturation dive and the diagnosis of decompression sickness assigned at the time; * the April 2005 VA examination report diagnosing the Veteran with osteoarthritis of the bilateral hands; * the July 2010 private physician's letter indicating that the Veteran's osteoarthritis of the hands is likely a result of his in-service saturation diving. The examiner must provide a comprehensive report, including a complete rationale for any conclusions reached. 2. After completion of the above, the AOJ must review the expanded record and re-adjudicate the issue of entitlement to service connection for a disability manifested by joint pain. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 3. Appropriate action should be taken pursuant to 38 C.F.R. § 19.26 in response to the October 2011 notice of disagreement, including issuance of an appropriate statement of the case, pertaining to the denial of the Veteran's petition to reopen previously denied claims for service connection for a wound to the left leg resulting in numbness and for right fifth finger joint deterioration, so the Veteran may have the opportunity to complete the appeal by filing a timely substantive appeal. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). 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). 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. 2012). _________________________________________________ THOMAS J. DANNAHER 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) (2012).