Citation Nr: 1332053 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-03 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for arthritis of multiple joints, to include as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1951 to December 1953. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Regional Office (RO) that, in pertinent part, declined to reopen a claim for service connection for arthritis of multiple joints - on the basis that new and material evidence had not been submitted. In April 2006, the Veteran testified during a personal hearing at the RO. A transcript of that hearing is associated with the claims file. In August 2011, the Board reopened the issue of service connection for arthritis of multiple joints and remanded it for further development. The claim was remanded again in September 2012 and July 2013 for further development. However, the claim is once again before the Board. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated November 2010 to July 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. In particular, the Veteran should be provided with an additional opportunity for a VA examination in order to evaluate his arthritis of multiple joints, to include as secondary to a low back disability. In the July 2013 remand, the Board requested that the Veteran be provided with a current, comprehensive VA joints examination to determine the nature and etiology of any currently diagnosed arthritis (other than lumbar), as well as evaluate whether the Veteran's service-connected low back disability causes or aggravates any arthritis condition. The AMC scheduled the Veteran for an examination on July 24, 2013. The record does not indicate if the Veteran was sent notice of this examination. In a copy of a July 24, 2013 email, it was indicated that the Veteran's wife had contacted the VA and stated that the Veteran had suffered a stroke and was unable to communicate. It was further indicated that the Veteran's wife would contact the AMC once the Veteran completed his physical therapy. It does not appear that the AMC attempted to contact the Veteran or his wife after that initiation or schedule another VA examination. The Board finds that, due to the Veteran's unavailability at the time of the previous examination because of a stroke, good cause has been shown for his failure to report. See 38 C.F.R. § 3.655(a). As such, another attempt should be made to obtain the examination. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for arthritis of multiple joints. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Upon receipt of all additional records, schedule the Veteran for the appropriate VA examination to determine the nature and etiology of the Veteran's claimed joint disorders, or multiple-joint arthritis (other than the lumbar spine), to include the currently diagnosed arthritis of the cervical spine and bilateral shoulders. The examiner should review the claims file, examine the Veteran, and perform any testing deemed necessary (to include x-rays). The examiner should provide an opinion on the following: (a) Identify all current disabilities underlying the Veteran's current complaints of arthritis of multiple joints (other than the lumbar spine). This inquiry is not limited to the lower extremities, but should include any arthritis of the upper extremities as well. (b) Identify all current arthritis diagnoses (other than the lumbar spine), to include arthritis of the cervical spine and bilateral shoulders. (c) Is it at least as likely as not that any currently diagnosed arthritis had its onset in service, or within the one-year period following the Veteran's discharge from service; or, was such disability otherwise caused by any incident or event that occurred during service, to specifically include the documented July 1953 truck accident? (d) Is it at least as likely as not that any currently diagnosed arthritis is proximately due to or chronically aggravated or worsened by the Veteran's service connected lumbar spine disability (diagnosed as degenerative disc disease)? If and only if the examiner believes that there is chronic aggravation or worsening of any currently diagnosed arthritis, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation. If the degree of increased disability cannot be quantified, the examiner should so indicate. (e) In providing these opinions, the examiner must comment on the Veteran's claim of in-service joint pain and continuity of this pain (continuity of symptomatology) since service. See Dalton v. Nicholson, 21 Vet. App. 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on absence of evidence in the STRs to provide a negative opinion). The examiner must also keep in mind that the essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not treatment. The claims file, including a complete copy of this remand, and any additional records obtained regarding post-service treatment for joint or arthritis disorders, must be made available to the designated examiner for review of the pertinent medical and other history. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 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. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim 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 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). _________________________________________________ JENNIFER HWA 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).