Citation Nr: 1312634 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-18 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for early arthritis as secondary to the service-connected total abdominal hysterectomy for symptomatic leiomyoma uteri. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1986 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the Board in October 2012 and remanded for additional development. 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 In the October 2012 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to ask the appellant to identify all medical care providers who treated her for arthritis since October 2009. In October 2012, the AOJ sent the appellant a letter requesting that she identify all medical care providers who have treated her for arthritis since October 2009. The letter was sent to an address in Memphis, Tennessee. No response was received from the appellant. The AOJ obtained the appellant's VA treatment records and issued a supplemental statement of the case (SSOC) in January 2013. The supplemental statement of the case was sent to the same Memphis address as the October 2012 letter. The SSOC was returned as undeliverable in February 2013. A note on the returned envelope stated that all mail be sent to a new Memphis address. There is no indication VA sent another copy of the SSOC to the appellant at the new address. A July 2012 VA psychology note reflects that the appellant reported that she was in the midst of moving out of her daughter's house into a house she would be renting. Thus, the VA treatment record reflects that the appellant moved in July 2012. The record demonstrates that the appellant did not receive a copy of the SSOC and indicates she likely did not receive a copy of the October 2012 letter requesting that she identify all of her medical care providers, in violation of due process. Consequently, there has not been substantial compliance with the mandates of the October 2012 remand. 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. See Stegall v. West, 11 Vet. App. 268 (1998). The claim must be remanded to send the appellant a letter requesting information about her medical providers at her new address. Additionally, VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant has asserted that she has early arthritis as a result of her service-connected hysterectomy. See January 2009 claim. An October 2008 lumbar spine X-ray report reflects that the spine had mild left convex scoliosis and early degenerative changes at the lumbar vertebral bodies. The appellant's service treatment records reflect that she complained of chronic back pain. See March 1987 service treatment record, April 1987 radiologic report. In a September 1988 report of medical history at the time of her discharge from service, the appellant reported having recurrent back pain. As the October 2008 lumbar spine X-ray report indicates she may have early arthritis, she complained of back pain in service, and she is service-connected for a total abdominal hysterectomy, the Board finds that a VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the appellant's new address of record to ask her to identify all medical care providers who treated her for arthritis since October 2009. Obtain any records identified by the appellant and associate them with the claims file. 2. After completion of the above, schedule the appellant for a VA examination to determine the following the current nature and likely etiology of the claimed arthritis. The claims folder must be made available to the examiner for review. Based on the examination and review of the record, the examiner should answer the following: (a) Identify whether the appellant has a diagnosis of arthritis. The VA examiner should consider the October 2008 lumbar spine X-ray report indicating she had early degenerative changes at the lumbar vertebral bodies. (b) Provide an opinion as to whether it is at least as likely as not (likelihood of at least 50%) that any arthritis found is incurred in or caused by active service. The examiner should consider her in-service complaints of back pain. (c) Provide an opinion as to whether it is at least as likely as not (likelihood of at least 50%) that any arthritis found is caused or aggravated by the service-connected total abdominal hysterectomy for symptomatic leiomyoma uteri. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of arthritis (i.e., a baseline) before the onset of the aggravation. The examiner is requested to 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. 3. Thereafter, review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and her representative with the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ M. E. LARKIN 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).