Citation Nr: 1311882 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-35 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for arthritis, to include rheumatoid and gouty arthritis. 2. Entitlement to an initial evaluation in excess of 10 percent prior to May 20, 2009, for an anxiety disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from January 1959 to March 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Jurisdiction of the Veteran's claim has been transferred to the RO in Muskogee, Oklahoma. The Veteran testified before the Board at a May 2009 videoconference hearing. A transcript of the hearing is of 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 Initially, with respect to the Veteran's increased initial evaluation claim, following the Board's February 2010 remand, the Agency of Original Jurisdiction (AOJ) awarded a 100 percent evaluation for the Veteran's service-connected anxiety disorder, effective May 20, 2009. See April 2011 rating decision. The AOJ determined that this decision represented a total grant of benefits sought by the Veteran on appeal, considered the issue resolved in full, and did not recertify the increased evaluation issue to the Board. However, the Board notes that a 10 percent evaluation remains in effect for the period prior to May 20, 2009. See Fenderson v. West, 12 Vet. App. 119 (1999). As such, the claim for an increased rating prior to May 20, 2009, remains before the Board because the staged rating assigned for this period remains less than the maximum benefit available. See AB v. Brown, 6 Vet. App. 35 (1993). The AOJ did not readjudicate the claim prior to May 20, 2009, nor include the increased initial evaluation claim in the April 2011 supplemental statement of the case (SSOC); the Veteran therefore has not received notice that this issue remains on appeal. As such, a remand is necessary to readjudicate the Veteran's claim and provide him an SSOC. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the service connection claim for arthritis, the Veteran was provided a VA examination in November 2010. Following a review of the claims file and physical examination of the Veteran, the VA examiner diagnosed osteoarthritis and gout, and opined that neither are etiologically related to the Veteran's period of active service. However, the rationale for this opinion is unclear. In this regard, in the "rationale" section of the opinion, the VA examiner recounted a limited portion of the Veteran's medical history, but did not explain why this history supports a negative etiological opinion. Further, the examiner did not discuss the Veteran's claimed symptomatology in service and shortly after service separation or continuity since. As the Veteran has been diagnosed with arthritis, a consideration of continuity of symptomatology is required. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limiting the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology to those "chronic" diseases enumerated in 38 C.F.R. § 3.309(a)). Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion and complete rationale). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Given the deficiencies of the November 2010 examination, the Veteran must be provided a new VA examination to determine whether his current arthritis and/or gout is etiologically related to his active service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of any current multiple joint arthritis and gout. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All clinically indicated testing must be conducted. Following a review of the claims file and clinical evaluation of the Veteran, the examiner is requested to address the following: a. Provide a current diagnosis of any arthritis and/or gout disability, specifically commenting on rheumatoid arthritis. If it is determined that the Veteran does not currently suffer from rheumatoid arthritis, the examiner must address and resolve conflicting medical evidence of record. b. For each disability noted above, offer an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that such disability is etiologically related to a disease, injury or event during the Veteran's active service. The examiner must address any assertions of continuity of symptomatology; the Board notes the Veteran is competent to report symptoms of pain and joint stiffness. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims of service connection for arthritis and an increased initial evaluation for anxiety prior to May 20, 2009, based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ J. CONNOLLY Acting 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).