Citation Nr: 1304896 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-37 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a left hand injury, to include residuals of a broken left index finger. 2. Entitlement to service connection for posttraumatic arthritis with pain, stiffness, and swelling of the joints with loss of range of motion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service in the United States Army from November 1979 to August 1, 1993. The Veteran had service in the United States Army Reserves (USAR) from August 2, 1993 to July 17, 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. By that rating action, the RO, in part, reopened the previously denied claim for service connection for residuals of a left hand injury, to include residual of a broken left index finger, and denied the de novo claim on the merits. The RO also denied service connection for posttraumatic arthritis with pain, stiffness, and swelling of the joints with loss of range of motion. The Veteran appealed this rating action to the Board. Jurisdiction of the appeal currently resides with the Winston-Salem, North Carolina RO. The Board notes that with respect to the claim for service connection for posttraumatic arthritis with pain, stiffness, swelling of joints with loss of range of motion, the RO granted service connection for low back strain and left great toe pain in the region of the first metatarsalphalangeal joint; 40 and 10 percent disability ratings have been assigned to these disabilities, respectively, in the appealed June 2009 rating action. Thus, the claim for service connection for posttraumatic arthritis with pain, stiffness, and swelling of the joints with loss of range of motion does not include consideration of the service-connected low back strain and left great toe disability. In addition, by the appealed June 2009 rating action, the RO denied service connection for left ankle and left foot disorders, and declined to reopen previously denied claims for service connection for residuals of injuries to the neck, left shoulder and right ankle. Aside from a finding that May 2009 x-rays of the right shoulder did not show evidence of any degenerative changes, the RO did not make a finding with respect to posttraumatic arthritis of these joints in the appealed June 2009 rating action. The RO separately denied the claim for service connection for posttraumatic arthritis with pain, stiffness, and swelling of the joints with loss of range of motion as a systemic condition that affected all joints. The Board will adopt the RO's interpretation, and will proceed with the claim for service connection for posttraumatic arthritis with pain, stiffness and swelling with loss of range of motion (other than low back strain and left great toe disability) on a de novo basis as indicated on the title page. 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 The new and material and service connection issues on appeal must be remanded. Although the Board sincerely regrets the delay this will cause, adjudication cannot proceed without further development. Specifically, to have the RO inform the Veteran of the elements needed to substantiate his new and material evidence claim in accordance with Kent v. Nicholson, and to obtain a medical examination and opinion as to the etiology of any current posttraumatic arthritis of the joints with pain, stiffness, and swelling of the joints with loss of range of motion. I. Notice-New and Material Claim The Veteran seeks to reopen his previously denied claim for service connection for residuals of a left hand injury, to include residuals of a broken left index finger. He was initially denied service connection in an August 2007 decision on the basis that evidence of a chronic disability of the left hand or left index finger had not been demonstrated. While it was acknowledged that the Veteran had injured his left hand/finger in August 1991, the RO said there was no evidence of any residual disability stemming from that injury. The Board notes that corrective notice in accordance with the Veterans Claims Assistance Act (VCAA) should be sent regarding his new and material claim for a bilateral eye disorder. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify a claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the appellant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. This was not accomplished with respect to the Veteran's previously denied claim for service connection for residuals of a left hand injury, to include residuals of a broken left index finger. In letters, dated in August 2008 and January 2009, the RO failed to identify the claim with respect to his claimed residuals of a left hand injury, as being new and material. The basis of the final prior denied was obviously not addressed, to include what evidence was needed to reopen the claim. Accordingly, the RO should provide the Veteran with complete notice pursuant to the VCAA and Kent v. Nicholson, supra, of the information and evidence needed to reopen the above-cited claim. II. Medical Examination and Opinion-Service Connection Claim The Veteran seeks service connecting for posttraumatic arthritis of the joints manifested by pain, stiffness, and swelling of the joints with loss of range of motion. He contends that his arthritis is a systemic condition that has caused him to develop pain in his neck, shoulders, fingers, left and right feet, and right ankle. (See the Veteran's typed statements to VA, received by the RO in July 2008). Service treatment records (STRs) show that in July 1983, the Veteran complained of a pain in the medial side of the right ankle. X-ray interpretations of the right tibia, dated in July 1983, were within normal limits. An assessment of stress reaction of the right tibia was entered. The Veteran was placed on a physical profile for a painful right ankle. Follow-up x-ray interpretations of the right ankle, dated in August 1983, revealed no significant abnormalities. In March 1987, the Veteran was seen for complaints of left knee and left elbow pain after he was involved in a motor vehicle accident. An assessment of contusion was entered. When evaluated for a follow-up visit a few days later, the Veteran demonstrated full range motion the left knee. The examining clinician entered an assessment of soft tissue swelling (STS) of the left knee. The Veteran was instructed to continue with Motrin as needed. He was placed on a profile for four (4) days. STRs, dated from April 1987 to August 1991, reflect that the Veteran complained of left shoulder pain after he was involved in a motor vehicle accident ("gamma goat accident") in mid-March 1987 and a "jump" in 1991. The Veteran was diagnosed as having left shoulder strain versus traumatic bursitis (mid-April 1987); left shoulder bursitis secondary to trauma (May 1987); left shoulder adhesions/fasciitis (early August 1991); and, left scapular pain (October 1991). The Veteran had full range of motion of the left shoulder in October 1991. In July 1992, the Veteran complained of left knee pain that had its onset two (2) weeks previously when he fell off a truck. A physical evaluation of the left knee was essentially normal with the exception of tenderness in the lateral patella area. The examining clinician entered an assessment of left knee strain. An assessment of contusion was entered. An April 1993 service discharge examination report reflects that all of the Veteran's extremities were evaluated as normal with the exception of the Veteran's feet. The Veteran demonstrated tenderness to touch and palpation of the first metacarpalphalangeal joint. It was noted that x-ray interpretations and a bone scan of the left foot were normal. On an accompanying Report of Medical History, the Veteran indicated that he had had bone, joint or other deformity, a painful or "trick" shoulder or elbow and foot trouble. He indicated that he did not know whether or not he had arthritis, rheumatism or bursitis. A December 1998 Quadrennial examination for the USAR shows that all of the Veteran's systems were evaluated as "normal." On an accompanying Report of Medical History, the Veteran indicated that he had had painful or "trick" shoulder or elbow. He denied having had arthritis, rheumatism or bursitis. Post-service VA treatment and examination reports reflect that the Veteran has been diagnosed with degenerative joint disease (DJD)/heel pain (January 2007 VA treatment report); left heel and mid-foot pain over the medial side of the foot (May 2009 VA foot examination report) and arthralgia of the left shoulder (May 2009 VA spine examination report). A review of a May 2009 VA feet examination report reflects that the VA examiner had reviewed the claims file, to include the Veteran's treatment for left great toe pain during service. A physical evaluation of the Veteran's feet revealed that he was tender to palpation over his first metatarsophalangeal joint as well as the medial heel and arch. The May 2009 VA examiner concluded, in part, that the Veteran's left heel and left mid-foot pain were less likely than not a continuation of the pain that he had experienced while in the service. The VA examiner did not provide any rationale for this opinion; nor did he provide an opinion as to the diagnosis of DJD/heel pain noted in a January 1997 VA treatment report. (See May 2009 VA feet examination report). In May 2009, VA examined the Veteran's to determine the etiology of any currently present left shoulder disability. After a review of the claims files, a recitation of history with respect to the left shoulder that is consistent with that previously reported herein, and a physical evaluation of the Veteran's left shoulder, which was positive for tenderness to palpation of the acromioclavicular joint, the VA examiner diagnosed him with left shoulder arthralgia. The VA examiner indicated that in light of the findings of normal range of left shoulder motion and an absence of tenderness over his acromioclavicular joint during service in 1991, he could not provide an opinion as to the etiology of the left shoulder arthralgia without resorting to mere speculation. The Court has held that once VA has undertaken to provide a medical examination or opinion, even when not obligated to do so by statute, it "must provide an adequate one, or at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Further, when an examiner states that he or she cannot render an opinion without speculation, the examination can still be considered adequate if the examiner "has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). Therefore, based on the above in-service complaints of right ankle and right shoulder pain, as well as evidence now tending to demonstrate current DJD of the heels and left shoulder arthralgia, and the incomplete and speculative opinions of the VA feet and orthopedic examiners in May 2009, the Board finds that a VA examination with an opinion that addresses the etiology of any currently present posttraumatic arthritis of the joints is causally related to the Veteran's military service. The examiner must also address whether any current posttraumatic arthritis of the joints involves symptoms distinct and separate from the service-connected low back strain and left great toe pain of the first metatarsophalangeal joint. III. Representation The Board notes that North Carolina Department of Administration (NCDA) cancelled its representation of the Veteran during the appeal. See NCDA's April 2011 letter to VA. There is no indication, however, that he was informed that he could obtain new representation. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice that his power of attorney agreement with NCDA was revoked, and that he may obtain new representation. The proper power of attorney forms, VA Form 21-22 and VA Form 21-22a, should be provided to him as well. 2. Send the Veteran corrective notice pursuant to the VCAA and Kent v. Nicholson of the information and evidence needed to reopen the Veteran's claim of entitlement to service connection residuals of a left hand injury, to include residuals of a broken left index finger. 3. Schedule the Veteran for a VA joints examination to determine the nature and etiology of his claimed posttraumatic arthritis of the joints with pain, stiffness, and swelling of the joints with loss of range of motion. The examiner should indicate whether a diagnosis of posttraumatic arthritis applies to each claimed joint. a. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any current posttraumatic arthritis found on examination is casually related to active service and if so, whether it causes any symptoms that are distinct from those associated with the Veteran's service-connected low back strain and left great toe pain in the region of the first metatarsophalangeal joint. b. In reaching all conclusions, the examining physician, must identify and explain the medical basis or bases for the conclusion, with identification of the evidence of record relied upon in reaching the conclusion. c. If an opinion cannot be expressed without resort to speculation, discuss why such is the case and whether there is additional evidence that would aid in providing such opinion. d. The examiner is advised that the Veteran is competent to joint problems in service, his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner has documented his or her review of all pertinent records in the claims files, to include any records uploaded to Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include rating the claim based on the evidence of record 38 C.F.R. §§ 3.158, 3.655 (2012). 6. Finally, readjudicate the issues of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of a left hand injury, to include residuals of a broken left index finger and entitlement to service connection for posttraumatic arthritis with pain, stiffness, and swelling of the joints with loss of range of motion. If any of these benefits sought is not granted, the Veteran shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. 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. 2012). _________________________________________________ MICHAEL A. HERMAN 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).