Citation Nr: 1306958 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 98-04 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for multiple joint pain. 2. Entitlement to service connection for an esophagogastric disorder. WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran served on active duty from June 1986 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case was most recently before the Board in May 2012, at which time the Veteran's claims for service connection for multiple joint pain and an esophagogastric disorder were remanded for further development. Specifically, with regard to the Veteran's claim for service connection for an esophagogastric disorder, the Board pointed out that in an April 2005 remand, the Board had specifically indicated that re-adjudication of that claim by the agency or original jurisdiction (AOJ) was to include consideration of whether any esophageal or gastrointestinal pathology has been caused or made worse by the Veteran's service-connected mood disability. The Board noted that in denying the Veteran's claim for service connection for an esophagogastric disorder via a September 2011 supplemental statement of the case (SSOC), the RO had erred by simply denying that claim because the Veteran had failed to report for his scheduled VA examination. See 38 C.F.R. § 3.655(b) (2012) (providing that "[w]hen a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record."). The Board thus remanded the issue of entitlement to service connection for an esophagogastric disorder for the AOJ to consider in the first instance whether, based on all of the evidence of record, service connection for an esophagogastric disorder is warranted. The Board directed that the re-adjudication should include consideration of whether any esophageal or gastrointestinal pathology has been caused or made worse by his service-connected mood disability. In November 2012, the RO issued an SSOC wherein it denied the Veteran's claim for service connection for an esophagogastric disorder. The RO stated: "As of this date, we have not received any additional evidence that shows that your esophagogastric disorder is the result of your military service. No further action has been taken for this issue on appeal." As the RO clearly did not consider whether any esophageal or gastrointestinal pathology has been caused or made worse by the Veteran's service-connected mood disability, the RO's re-adjudication of the Veteran's claim does not comply with the terms of the Board's April 2005 and May 2012 remands, and the matter must again be remanded for the AOJ to consider in the first instance whether the evidence of record supports a finding of secondary service connection. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (finding that the Board is "primarily an appellate tribunal" and that consideration of additional evidence in the first instance denied appellants "one review on appeal to the Secretary" in violation of 38 U.S.C. § 7104(a)); 38 C.F.R. § 3.655(b). Concerning the Veteran's claim of service connection for multiple joint pain, in its May 2012 remand, the Board directed the AOJ to obtain from a medical practitioner with expertise in joint pathology an opinion as to the nature of any disability causing the Veteran's complained-of pain in multiple joints. The Board noted that the Veteran had been afforded a VA examination in May 2011, the report of which contained an opinion that the Veteran's body pain was not a result of his military service. The Board determined, however, that the basis of the examiner's negative opinion was undermined by the evidence of record, as the examiner had stated that the Veteran did not present with chronic, progressive complaints of multiple joint pain, but a review of the record revealed that the Veteran has consistently complained of multiple joint pain at least since April 1998. The Board also noted that it did not appear as though the VA examiner considered the private medical opinion by Dr. R.B., who stated that the Veteran was suffering from Gulf War Syndrome, which presents in many ways such as joint pain. In June 2012, the Veteran's claim folder was reviewed by a nurse practitioner who opined that the Veteran's complained-of joint pain stemmed from a motor vehicle accident and was not related to his military service. The nurse practitioner stated that foremost, the Veteran did not have chronic progressive complaints of joint pain on the record. The question of whether the nurse practitioner who offered the June 2012 opinion has an expertise in joint pathology notwithstanding, the opinion is neither compliant with the terms of the Board's May 2012 remand nor adequate for evaluation purposes. Notably, the nurse practitioner stated that the Veteran did not have chronic progressive complaints of joint pain on the record. However, the Board has already pointed out that a review of the record revealed that the Veteran has consistently complained of multiple joint pain since at least April 1998. Further, while the evidence of record shows that the Veteran was involved in a motor vehicle accident in December 2005, he clearly complained of multiple joint pains prior to the date, which fact undermines the nurse practitioner's opinion that his joint pain is related to a motor vehicle accident. Accordingly, the Board finds that it is necessary to remand the claim again so that the development required by the May 2012 remand may be accomplished and so that an adequate medical opinion may be obtained. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should review the record, to specifically include the private medical evidence of record and any other relevant evidence not previously considered, and in accordance with 38 C.F.R. § 3.655(b) readjudicate the Veteran's claim of service connection for an esophagogastric disorder, which readjudication must include consideration of whether any esophageal or gastrointestinal pathology has been caused or made worse by his service-connected mood disability. (If the AOJ determines that additional development, such as obtaining a medical opinion, is necessary to adjudicate the issue, that development should be accomplished.) 2. Forward the claims files to a VA or VA-contracted rheumatologist. The reviewer should be asked to review the record and provide an opinion as to the nature of any disability causing pain in multiple joints. All opinions should be set forth in detail and explained in the context of the record. The examiner should be asked to: a) state whether any claimed joint pains are associated with a diagnosable illness. In doing so, the examiner is requested to comment as to whether the Veteran's symptomatology represents a known clinical diagnosis. If any symptomatology is attributable to a known clinical diagnosis, the examiner should also provide an opinion as to medical probabilities that each diagnosed disability manifested by joint pain is related to the Veteran's period of military service. b) if any joint pain is not due to a specific diagnosed disease entity, opine whether such pain represents an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service. c) provide an opinion as to whether the Veteran's claimed disability, regardless of diagnosis, can be collectively linked with other complained-of symptoms to a medically unexplained chronic multisymptom illness. Regardless of whether the reviewer's opinion is favorable or negative as to any requested opinion, the reviewer must provide support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. The examiner must consider and discuss the Veteran's lay statements regarding the onset and continuity of all symptoms capable of lay observation. If the reviewer determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) 3. The AOJ must ensure that all medical opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the medical practitioner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue of entitlement to service connection for multiple joint pain. 5. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).