Citation Nr: 1333091 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 06-11 182A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for arthritis of the feet, ankles, legs, knees, and shoulders. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the RO in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for arthritis of the feet, ankles, legs, knees, hips, and shoulders. In December 2008, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. The Board issued a decision denying this claim in March 2009. In an October 2010 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated that part of the Board's decision denying the present claim and remanded the claim. In August 2011, the Board remanded this case for additional development in accordance with the Court's decision. The Board remanded the case again in April 2013 as the findings in the examination reports were deemed insufficient. The file has now been returned to the Board for further consideration. The Board notes that in September 2012 the RO granted service connection for bilateral plantar fasciitis. However, the service connection issues regarding other potential disabilities of the feet, i.e., calcaneal spur, arthritis, etc., are still on appeal. The issues of service connection for disabilities of the lumbar spine, cervical spine, and hands, and increased rating for gunshot wound to the lumbar spine based on clear and unmistakable error have been raised by the record via argument submitted by the Veteran's representative in June 2013, but have not been recently adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 A medical opinion was provided in April 2013 pursuant to the Board's last remand, to address the Veteran's service connection claims for arthritis of the feet, ankles, legs, hips, knees, and shoulders. Subsequent to the examination, however, the Veteran's representative submitted an alternate theory of entitlement based on the Veteran being service-connected for gynecological disabilities that the representative argued resulted in her having had a hysterectomy in 1983 (after service), which resulted in low estrogen. The Veteran's representative submitted copies of studies that linked low estrogen to the development of arthritis. The Veteran is service-connected for atrophic vaginitis due to estrogen deficiency associated with salpingo-oophorectomy, and salpingo-oophorectomy. As the studies submitted by the Veteran's representative were not considered by the examiner, the case must be returned again for another opinion addressing this argument. Also, the Board's remand instructions were not followed as evidenced by numerous deficiencies in the April 2013 medical opinions. The April 2013 opinion was provided by a different clinician; however, the clinician did not re-examine the Veteran as directed in the Board's remand. The clinician noted that re-examination was not warranted as there were sufficient objective data; but the Board specifically requested re-examination of the Veteran if the previous examiner in October 2011 was not available. Also, the Board asked for a medical professional with a background in rheumatology or other appropriate medical expertise. The April 2013 clinician was noted to be a Physician's Assistant, but there was no notation as to her qualifications or background expertise. The remand directions included providing a supplemental opinion regarding the claim for arthritis of the feet, ankles, legs, knees, and shoulders, which considered the findings in the service treatment records and the Veteran's lay statements of symptomatology since service. A new opinion was not provided for the shoulders; what appears in the record is merely a copy of the previous opinion provided in October 2011 that was deemed inadequate by the Board. With respect to the ankles, the clinician again determined that examination of the ankles was normal as reflected in October 2011 but did not comment on the corticated osseous density inferior to the right lateral malleolus or the evidence for previous trauma affecting the right lateral malleolus that was reported on the x-ray findings in October 2011. Regarding the hip, the April 2013 clinician determined that the Veteran's hip disabilities were not related to service because of the lack of findings of a chronic hip condition in service and the 20-year period between her service and the post-service treatment for her hips in July 2000. The clinician again repeated word-for-word the previous October 2011 examiner's assessment that the Veteran's "vague complaints at separation were not evidence of a chronic medical condition and her exam for disability in 1980 was unremarkable for any hip findings or problems." However, again she did not consider the July 1972 left hip contusion in service, the February 1973 superficial abrasion, or the complaints of frequent swelling of the legs for a period of three years at the separation examination in July 1979. She also did not comment on the lay statements of bilateral hip pain since service or address any other leg impairment, other than the hips or knees. The opinion provided regarding the knees was based on more detailed rationale than previously provided in October 2011, but the clinician did not directly address the issue of aggravation regarding the Veteran's knees and her service-connected pes planus and/ or plantar fasciitis. The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the Board or the RO is neither optional nor discretionary. 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, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any ongoing treatment she has been receiving for her feet, knees, hips, shoulders, legs, and/or ankles. Then make efforts to obtain any relevant identified treatment records. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination with a physician with a background in rheumatology and/or orthopedics to ascertain the origin or etiology of any present disabilities of the feet, ankles, knees, hips, legs, and shoulders. The physician's qualifications should be evident from the examination report. The claims folder is to be provided to the physician for review in conjunction with the examination and the examination report should reflect that the physician reviewed the claims folder. After a review of the claims folder and an examination of the Veteran, the physician should perform a thorough orthopedic evaluation and determine what disabilities the Veteran presently has in her feet, ankles, knees, hips, legs, and shoulders, i.e., arthritis, os fibulare (ankles), calcaneal spur (feet), etc. The examiner also should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that any current disability of the feet (other than hallux valgus, pes planus, or plantar fasciitis), ankles, knees, hips, legs, and shoulders had its clinical onset during active service or is related to any in-service disease, event, or injury. In making these assessments the physician must consider the following: (1) in-service May 1971 complaints of pain in the ankle, right leg, and knees subsequent to a motor vehicle accident, with spasm; (2) July 1972 contusion of the left hip; (3) February 1973 superficial abrasion of the left thigh subsequent to being dragged; (4) January 1975 finding as to her gunshot wound at the left shoulder blade, between the ribcage, with complaints of pain in the left shoulder and arm; (5) March 1978 complaints of right shoulder aches; (6) January 1979 complaints of pain in the feet diagnosed as muscle fatigue, fatigue related to her legs; (7) Complaints of frequent swelling of the feet and legs for three years and her questionable rheumatoid arthritis in the shoulder since 1971 at the time of her separation examination in July 1979, and her historical report of rheumatism, arthritis, or bursitis at that time; (8) January 1972 and May 1979 complaints of swollen feet; (9) April 1979 lateral left ankle pain with diagnosed sprain; and (10) the Veteran's statements of continuous symptoms of joint pain after service. (b) Whether it is at least as likely as not (50 percent or greater probability) that any such diagnosed disability of the feet (other than hallux valgus, pes planus, or plantar fasciitis), ankles, knees, hips, or legs is proximately due to, or the result of, her service-connected hallux valgus, pes planus, or plantar fasciitis. (c) Whether it is at least as likely as not (at least a 50 percent probability) that any such diagnosed disability of the feet (other than hallux valgus, pes planus, or plantar fasciitis), ankles, knees, hips, or legs has been aggravated (made permanently worse beyond the natural progression) by her service-connected hallux valgus, pes planus, or plantar fasciitis. (d) Whether it is at least as likely as not (50 percent or greater probability) that any arthritis of the feet, ankles, knees, hips, legs, or shoulders is proximately due to, or the result of, her service-connected atrophic vaginitis due to estrogen deficiency associated with salpingo-oophorectomy, and salpingo-oophorectomy (with consideration of the studies from NIH and Johns Hopkins as referenced by the Veteran's representative in June 2013 linking low estrogen to the development of arthritis, see http://www.mayoclinic.com/health/drug-information/DR602127). (e) Whether it is at least as likely as not (at least a 50 percent probability) that any that any arthritis of the feet, ankles, knees, hips, legs, or shoulders has been aggravated (made permanently worse beyond the natural progression) by her service-connected atrophic vaginitis due to estrogen deficiency associated with salpingo-oophorectomy, and salpingo-oophorectomy (with consideration of the studies from NIH and Johns Hopkins as referenced by the Veteran's representative in June 2013 linking low estrogen to the development of arthritis, see http://www.mayoclinic.com/health/drug-information/DR602127). The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 4. Finally, readjudicate the claim on appeal. If any of the benefits remain denied, issue the Veteran and her representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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. 2013). _________________________________________________ K. PARAKKAL 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) (2013).