Citation Nr: 1314093 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 06-25 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for bilateral elbow disorders. 2. Entitlement to service connection for bilateral knee disorders. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to May 2001. These matters come properly before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota (RO). In August 2010, the Board remanded the matters to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The AMC then certified this appeal back to the Board in April 2012. Subsequently, additional evidence was added to the record. However, the Veteran waived his right to have the RO initially consider this evidence in a statement dated in April 2012. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA paperless claims file was also reviewed in preparing this remand. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. The Veteran claims he currently has multi-joint arthritis due to his labor-intensive military service as an infantryman. His service treatment records confirm his MOS and various joint complaints, to include his knees and elbows. Specifically, a September 1997 in-service treatment record document low back pain that was radiating to the knees. No knee diagnosis was provided. A June 1998 in-service treatment record documents arthritis, but no specific joint is listed. A February 1999 in-service treatment report notes the Veteran's complaints of swelling and pain in his elbows, but no diagnosis was provided. Within his April 2001 separation examination report, the Veteran answered positive for "swollen or painful joints" and "arthritis, rheumatism or bursitis," and the examining physician's elaboration of the pertinent data reflects that such reports were made in reference to the lower back, left sciatica, bilateral elbows, bilateral hands, or neck. After service, the Veteran has been treated and diagnosed with degenerative arthritis of the right knee, polyarthralgia of the bilateral knees, tendonitis of the elbow, lateral spicodylitis, chronic pain of the knees and elbows, and degenerative changes of both elbows. In April 2009 and April 2012, the Board remanded these claims, in pertinent part, for the VA to obtain copies of the Veteran's related medical records that were not already in the claims folder and to afford the Veteran a VA examination to ascertain the likely etiology of any knees and elbows diagnoses rendered. The VA was specifically directed to afford the Veteran a VA examination only after these records were obtained to determine whether the Veteran currently has bilateral knee and elbow disorders and the etiology of any current elbow and knee disorder found. The Veteran was afforded a VA examination in September 2010 to determine the nature and etiology of his elbows and knees. At that time, the examiner provided a medical opinion with regard to the right knee, but did not address the left knee or bilateral elbows. The examiner further noted there were no treatment records available for review beyond 2005. The examiner found that this suggested that, although the problem may be intermittent it does not seem to be aggravated by anything in the military service. Since the September 2010 VA examination, as pointed out by the Veteran's representative in a September 2012 statement, an entire volume of records (both in-service and post-service) has been added to the Veteran's claims file. These new treatment records demonstrate that the Veteran has been treated for his elbows and knees by the VAMC since 2005, at least through 2011. This evidence is contrary to the VA examiner's medical opinion and the evidence is relevant to the claims on appeal. The Veteran's representative contends that the September 2010 VA examiner's opinion is inadequate because it was rendered without reviewing all of the Veteran's current medical records and because it was not in compliance with the Board's prior remand. The Board agrees. Although the AMC sent the Veteran a letter in August 2010 (prior to the VA examination) requesting that he identify all VA and non-VA medical providers who have treated him for his elbow and knee disorders since his discharge from the service, these records were not actually obtained until well after the VA examination was completed. The 2010 examiner made a point of noting the fact that there were no medical records to review beyond 2005. The new evidence received after the 2010 examination, moreover, includes additional medical evidence dating from the 1990s (during his military service) through October 2011, to include relevant treatment for the conditions on appeal. Thus, the examiner's opinion is not adequate or probative because it was based on incomplete or inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). A remand by the Board confers on the Veteran the right to VA compliance with the terms of the remand order and imposes on the VA Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the United States Court of Appeals for Veterans Claims (Court) held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Thus, these claims must therefore be remanded to ensure compliance with the Board's previous remand directives. The Board finds the VA examination is inadequate and not in compliance with the Board's prior remand directive. Corrective action is required. The VA must also take this opportunity to obtain any recent VA and or private treatment records not currently in the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all VA and non-VA medical providers who have treated him for his elbow and knee disorders since October 2011. The RO must then obtain copies of the related medical records that are not already in the claims folder, to include VA outpatient treatment records from October 2011 to the present. All attempts to secure this evidence must be documented in the claims file by the RO and VA facilities must provide a negative response if records are not available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim, and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After these records are obtained to the extent available, the RO must afford the Veteran an appropriate VA examination to determine whether the Veteran currently has bilateral knee and elbow disorders related to his military service, to include his MOS as an infantryman and in-service joint treatment. The claims file must be provided to and reviewed by the examiner, to include a copy of this Remand. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner.\ Following a review of the service and post service medical records, the examiner must identify any (left and right) elbow and/or knee disorder(s) found, and for each identified elbow and/or knee disorder(s) the examiner must provide an opinion as to whether they were "at least as likely as not" (50 percent probability or greater) caused or aggravated by the Veteran's military service in light of his complaints of joint pain in the military, particularly after exercise. A complete rationale for all opinions must be provided and the examiner is to reconcile the opinion rendered with any conflicting medical opinions of record, to include the September 2010 VA examination. If any requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. Then, readjudicate the claims. If any of the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 or by the Court 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). _________________________________________________ SHEREEN M. MARCUS Acting 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 Court. 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).