Citation Nr: 1330636 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-26 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Carolyn J. Kerr, Accredited Claims Agent WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Appellant served on various periods of active duty for training (ACDUTRA) and inactive duty for training in the United States Navy Reserves from June 2000 to April 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which, in pertinent part, denied the current appellate claims. The RO in Waco, Texas, currently has jurisdiction over the Appellant's VA claims folder. The Appellant testified at a hearing before an Acting Veteran's Law Judge (AVLJ) of the Board in March 2010. A copy of the hearing transcript has been associated with the claims folder. However, the AVLJ who conducted this hearing is no longer employed with the Board. Pursuant to 38 C.F.R. § 20.707, a claimant is entitled to have final determination of his or her claim made by the Board member who conducted a hearing. Accordingly, the Appellant was sent correspondence in June 2013 informing her of this fact, and inquiring if she desired a new hearing. The Appellant subsequently responded in July 2013 that she did not wish to appear at a hearing, and that she wanted her case considered on the evidence of record. This case was previously before the Board in February 2011 and June 2012. In February 20111, the Board remanded the case for further development. Thereafter, in a June 2012 decision, the Board denied the claims of service connection for rheumatoid arthritis and a right shoulder disorder. The Board also dismissed the claim of service connection for asthma as it had been withdrawn by the Appellant. See 38 C.F.R. § 20.204. The Appellant appealed the Board's June 2012 decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2013 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the Board's decision to the extent it denied service connection for rheumatoid arthritis and a right shoulder disorder, and remanded the case for compliance with the instructions of the JMR. The appeal as to the remaining issue of service connection for asthma was dismissed. For the reasons detailed below, 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 Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). The records reflects the Veteran was accorded a VA medical examination in April 2011 which included an opinion that addressed the nature and etiology of her rheumatoid arthritis and right shoulder disorder. However, the JMR which was the basis for the April 2013 Court Order contended, in pertinent part, that this examination was inadequate, and that a remand was required in order to obtain an adequate medical opinion. Therefore, the Board must remand this case for such an examination in order to ensure compliance with the instructions of the JMR. See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The JMR also asserted that a remand was required to obtain X-ray and other test results ordered in conjunction with the April 2011 VA examination but were not of record. The Board further observes that the Appellant's accredited representative asserted in an August 2013 statement that she was submitting additional argument and/or evidence on behalf of the Appellant, and that the case should be remanded to the agency of original jurisdiction (AOJ) for review of the newly submitted evidence. This also warrants a remand in this case. See 38 C.F.R. § 20.1304. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the Appellant for her rheumatoid arthritis and right shoulder disorder since April 2011. After securing any necessary release, obtain those records not on file. Even if the Appellant does not respond to this request, obtain any outstanding VA medical records, to include the X-ray and other test results ordered for the April 2011 VA medical examination. 2. Notify the Appellant that she may submit lay statements from herself as well as from other individuals who have first-hand knowledge, and/or were contemporaneously informed her in-service and post-service rheumatoid arthritis/or and right shoulder symptoms.. The Appellant should be provided an appropriate amount of time to submit this lay evidence. 3. The Appellant then should be afforded an examination to evaluate the nature and etiology of her rheumatoid arthritis and right shoulder disorder. The claims folder should be made available to and reviewed by the examiner and all necessary tests should be conducted. Following evaluation of the Appellant, the examiner should opine whether it is at least as likely as not that any rheumatoid arthritis found to be present was incurred in, aggravated by, or otherwise the result of her periods of service to include both ACDUTRA and inactive duty training. The examiner should also opine whether it is at least as likely as not that any right shoulder disorder found to be present was incurred in, aggravated by, or otherwise the result of her periods of service to include both ACDUTRA and inactive duty training. By aggravation, the Board means a permanent increase in severity of a pre-existing disability that is beyond natural progression. A complete rationale for any opinion expressed should be provided and must reflect consideration of the Appellant's contentions and background as a nursing assistant. 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. The decision should reflect consideration of the Appellant's background as a nursing assistant in evaluating her contentions. If the benefits requested on appeal are not granted to the Appellant's satisfaction, the Appellant and her representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in February 2012, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ STEVEN D. REISS 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).