Citation Nr: 1301465 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 04-14 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a disability manifested by multiple joint pain, including fibromyalgia, steroid responsive arthropathy, and polyarthralgia. 2. Entitlement to service connection for loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1948 to September 1952, January 1953 to September 1953, and December 1954 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2003 and March 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, and North Little Rock, Arkansas, which, in pertinent part, denied entitlement to service connection for fibromyalgia and loss of use of a creative organ. Both issues have been remanded for additional development numerous times. The Veteran provided testimony before the undersigned during a videoconference hearing in October 2007. A transcript is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 This claim has a long and complicated history involving multiple remands. While the Board regrets any further delay, the case must be remanded once again. In its May 2012 remand, the Board noted that an April 2011 VA examiner had concluded that the Veteran did not have fibromyalgia and consequently could not render an etiology opinion. However, the examiner did note that "there is evidence that the Veteran, while in military service, complained of many joint arthralgias." He went on to note that fibromyalgia and polymyalgia rheumatic were considered as possible diagnoses until the Veteran met with the rheumatology section of the VA Medical Center, at which time he was treated for steroid responsive arthropathy. The examiner likewise diagnosed the Veteran with steroid responsive arthropathy. The Board acknowledged that the examiner rendered an opinion that put the issue of the Veteran's alleged fibromyalgia to rest. However, as the Veteran was ultimately seeking service connection for a disability manifested by multiple joint pain, that he believed was fibromyalgia, and the examiner's opinion, narrowly focused on fibromyalgia, the question of whether the Veteran's symptoms of multiple joint pain are related to service was not resolved. The Board, therefore, requested an addendum to that examination to address whether the Veteran's steroid responsive arthropathy began during or is otherwise causally related to service, or whether it was caused or aggravated by any service-connected disability. The addendum obtained in May 2012 is inadequate for the purpose of determining the etiology of the Veteran's reported multiple joint pains. In providing a negative etiology opinion, the examiner stated that the Veteran's arthropathy was noted following exiting service and the extensive chart review revealed no diagnosis indicating steroid responsive arthropathy or suggested evidence or consideration for joint disease or arthropathy prior to the mid-2000 era. The examiner stated that the Veteran began seeing physicians in 2004 with a concern of arthralgias and myalgias involving the axial skeleton, which had prior to not been recognized or seen by in-service or post-service providers. The examiner stated that it was, therefore, less likely as not that his steroid responsive arthralgias and other joint-related disease was related to military service. The examiner then stated that the condition was neither caused nor aggravated by military service. The examiner's opinion did not address the Veteran's reports of joint-related pain during service or explain why those complaints were unrelated to his current complaints of joint and muscle pain. Moreover, the examiner did not provide an opinion as to whether the Veteran's current symptoms were caused by or aggravated by his service-connected disabilities, which include degenerative arthritis of the cervical and lumbar spine, bilateral hips, and bilateral knees, peripheral neuropathy of the bilateral lower extremities, and gout, right ankle. The Board also notes that in its January 2011, the examination requested was to be performed by a rheumatologist as VA examiners had suggested in September 2008 and July 2010 examination reports. The April 2011 VA examination and May 2012 addendum appear to have been provided by an internist. Given the questions yet to be adequately answered and the complexity of this case, the Board finds that a new VA examination by a rheumatologist is required. Regarding the claim for loss of use of a creative organ, the Board noted in its May 2012 remand that the April 2011 adequately addressed the question as to whether the Veteran had diabetes mellitus. However, in addressing the issue of erectile dysfunction (ED), the examiner stated that it was unrelated to the Veteran's prior service-connected transurethral resection. The Board noted that the opinion was unclear as to whether the term "unrelated" included consideration of both causation and aggravation of the ED and that the examiner failed to provide any rationale for that aspect of the opinion. The Board explained that as a July 2010 internal medicine specialist had hinted at a possible nexus (stating that there was "no reason to believe that [the erectile dysfunction was] at all related to any factors except for possibly progressive age... [but] he did have a transurethral resection of the prostate in the 1980's"), a thorough rationale that addressed the comments of the July 2010 examiner was necessary. In addition, given the Veteran's contentions, the examiner was requested to include an opinion as to whether or not the Veteran's erectile dysfunction was caused or aggravated by his service-connected transurethral resection of the prostate or PTSD. The addendum obtained in May 2012 is also inadequate for the purpose of determining the etiology of the Veteran's erectile dysfunction and loss of use of a creative organ. The examiner stated that the etiology of the ED was no known with any certainty as the Veteran did not have a history of hypogonadism or diabetes mellitus and there was no reasonable explanation to assume that PTSD or the transurethral resection had caused, worsened, or was related to the condition. In addition, there were no medications used in service which have been positively identified or considered to be part of the etiology of his current ED. Therefore, the examiner concluded that ED was not at least as likely as not related to service or causally related or aggravated by his service-connected transurethral resection or PTSD. The examiner's opinion did not provide a rationale for the opinions asserting no link between service-connected PTSD or transurethral resection and ED, but simply stated there was no reasonable explanation to assume such a link. Moreover, while the examiner provided an opinion regarding medication used during service, he did not provide an opinion as to whether medication used to treat a service-connected disability since service has caused or aggravated ED. The Board also notes that in its January 2011, the examination requested was to be performed by a urologist. The April 2011 VA examination and May 2012 addendum appear to have been provided by an internist. Given the questions yet to be adequately answered and the complexity of this case, the Board finds that a new VA examination by a urologist is required. As the Board's May 2012 remand order has not been complied with, remand of the issues are necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board cannot render a decision based on an examination report which does not contain sufficient detail and a remand is required for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination. 38 C.F.R. § 4.2 (2012); see also Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Board further requests that the agency of original jurisdiction (AOJ) take this opportunity to obtain any outstanding VA medical records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, provide the Veteran with a VA rheumatology examination with a qualified rheumatologist to determine whether any current disability is related to service or a service-connected disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current nonservice-connected joint or muscle disability, to include steroid responsive arthropathy and polyarthralgia, had onset in service or is otherwise related to a disease or injury in service, including the reports of joint pain during service. To the extent possible, (likely, unlikely, at least as likely as not) the examiner should opine whether the Veteran's current condition was either (a) proximately caused by or (b) proximately aggravated by his service-connected disabilities, including degenerative arthritis of the cervical and lumbar spine, bilateral hips, and bilateral knees, peripheral neuropathy of the bilateral lower extremities, and gout, right ankle. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. Once the above development has been completed, provide the Veteran with a VA urology examination with a qualified urologist to determine whether any current disability is related to service or a service-connected disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the ED disability had onset in service or is otherwise related to a disease or injury in service. To the extent possible, (likely, unlikely, at least as likely as not) the examiner should opine whether the Veteran's current ED was either (a) proximately caused by or (b) proximately aggravated by his service-connected disabilities, including but not limited to PTSD and transurethral resection of the prostate. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 4. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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 2002 & Supp. 2012). _________________________________________________ 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) (2012).