Citation Nr: 1303833 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-28 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for arthritis. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from November 1984 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in June 2011 for further development and adjudicative action. The Board notes that a claim for a total disability rating based on unemployability is currently being addressed by the RO. As this claim has not yet been adjudicated by the RO, it is not a matter presently before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. 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 While the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the AMC/RO for additional development. In June 2011 the Board remanded the claim in part to schedule the Veteran for a VA joints examination with regard to her claim for service connection for arthritis, to include as secondary to service connected conditions. The Veteran underwent a VA examination in August 2011. The VA examiner noted that a VA physician previously found that if the Veteran developed fluid in her right hip during service, this could be considered symptoms of inflammatory arthritis. Without resort to mere speculation because there were no service records for review, the VA examiner could not resolve the issue of whether the Veteran's symptoms are a continuation of any sort of inflammatory arthritis noted in the military. The examination opinion did not address whether the Veteran's arthritis is secondary to service-connected conditions. The Veteran has submitted copies of letters that she claims she wrote to family members during her military service. In a letter dated in March 1985, she reports that she had been on crutches from Tuesday to Friday due to fluid in her right hip bone and that it was painful. She indicated that the doctors did not know what caused it and that she was on crutches to relieve the pressure. The Board notes that, along with the letter, the Veteran submitted an envelope which was postmarked on March 15, 1985. The Board also notes that available service treatment records from a June 1986 hospitalization for an unrelated condition noted her mentioning an adult medical history of a questionable stress pelvic fracture. The date of such was not mentioned. A VA treatment record from December 2006 noted the Veteran complaining of multiple joint swelling and pain off and on for 2 months, mostly in the hands, but also in knees, ankles, shoulders, and lower back. She was referred to the rheumatology clinic. A report from that clinic in February 2007 notes the Veteran complaining of joint pain. She stated that she was well until mid 1999 when she suffered an injury at work to her shoulder. Then she developed pain and tightness across the shoulder blades. She noted working night shift, going to school in the morning, and only getting few hours of sleep each day. She stated school got busier, work got more stressful on February 18, 2007 with more lifting and turning patients every 2 hours. She stated she then developed joint pains and stiffness in March 2006. It was noted that an October 2006 workup revealed a negative rheumatoid factor. The impression was history suggestive of inflammatory arthritis, with excessive stress and sleep deprivation the likely triggering factors. VA treatment records dated in July 2011 reflect that a physician found that, if the Veteran developed fluid in her right hip in service, that could be a symptom of inflammatory arthritis and hence it can be said, that it is at least as likely as not that the Veteran's current inflammatory arthritis arose during service. The Board notes that the Veteran's Virtual VA file contains a February 2012 Social Security Administration (SSA) award letter, showing a November 2011 date of entitlement. However, the records upon which the decision was based are not in the claims file or Virtual VA file. The disabilities for which SSA entitlement was given are not shown. Where VA has actual notice of the existence of records held by SSA that appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). However, if the records are not relevant, they do not need to be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) ("When a SSA decision pertains to a completely unrelated medical condition and the veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the veteran seeks benefits, relevance is not established."). Thus, on remand, the Veteran should be asked whether the records from SSA pertain to her arthritis, and if so, such records from SSA should be requested. The AMC/RO also should obtain any relevant, ongoing VA treatment records dated since August 2011 from the Salisbury VA medical center. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated her for her claimed arthritis. After securing any necessary release, the AMC/RO should obtain any records that are not duplicates of those contained in the claims file. In addition, relevant treatment records dating from August 2011 to the present from the Salisbury VA Medical Center should be obtained. 2. Ask the Veteran whether award of Social Security benefits include consideration of her arthritis. If so, the AMC/RO should obtain from SSA the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. Following the completion of the development above to the extent possible, return the claims file and the August 2011 VA examination report to the physician who conducted that examination, if available. If this examiner is not available, arrange for the opinion to be provided by another examiner of equal qualifications. If a new examination is deemed necessary by the examiner, one should be scheduled. Following review of the claims folder and relevant electronic VA treatment records, the examiner should respond to the following: (a) Is it more likely, less likely, or at least as likely as not (50 percent probability) that a current arthritis disorder arose during service or is etiologically related to the Veteran's military service, to include the Veteran's report of an incident in March 1985 in which the Veteran was on crutches due to fluid in her right hip. In rendering this opinion, the examiner can accept the premise that she had a right hip complaint in service. The examiner should also address the significance of the 20 year gap between such incident in service and her first mention of generalized joint complaints reportedly beginning in March 2006, and subsequently thought to be inflammatory arthritis. (b) If the examiner concludes that a relationship between service and the claimed arthritis cannot be established, then the examiner should provide an opinion as to whether it is more likely, less likely, or at least as likely as not (50 percent probability) that a current arthritis disorder was caused by the Veteran's service-connected PTSD and/or fibromyalgia. If not, then the examiner should provide an opinion as to whether the claimed arthritis is permanently worsened beyond normal progression (aggravated) by the service-connected PTSD and/or fibromyalgia. If the examiner concludes the claimed arthritis is aggravated by service connected conditions, the examiner should quantify the degree of aggravation beyond the baseline level of the arthritis disability. In rendering these opinions, the examiner should address the February 2007 VA treatment report noting the Veteran worked night shift, was going to school in the morning, had increasing physical demands at work, and was only getting 2 hours of sleep a night, and that extreme stress and sleep deprivation were likely the triggering factors. c. If the examiner is unable to offer an opinion without resorting to speculation, it is essential that the examiner provide the reasons why an opinion could not be provided. 4. Thereafter, the AMC/RO should readjudicate the claim of entitlement to service connection for arthritis, to include as secondary to service-connected disabilities. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 Supp. 2012). _________________________________________________ K.A. BANFIELD 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).