Citation Nr: 1334208 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 04-07 469A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for fatigue. 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for fibromyalgia. 3. Entitlement to service connection for arthritis of the left shoulder. 4. Entitlement to service connection for arthritis of the right shoulder. 5. Entitlement to a rating in excess of 20 percent for plantar warts of the right foot. 6. Entitlement to a rating in excess of 20 percent for plantar warts of the left foot. 7. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee. 8. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee. (The following issues are adjudicated in a separate decision under the same docket number as testimony was only taken at one hearing before one of the undersigned Veterans Law Judges (VLJ): Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD); entitlement to service connection for hair loss, headaches, muscle pain, joint pain, shortness of breath, sleep disturbances, residuals of a heart attack, bone degeneration, and a back disorder, all to include as due to an undiagnosed illness; and entitlement to a total disability rating due to individual unemployability (TDIU)). REPRESENTATION Appellant represented by: Colin E. Kemmerly, Esq. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to April 1994. This matter comes before the Board of Veteran's Appeals (Board) on appeal from rating decision promulgated by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony on the issues addressed by this decision before the undersigned Acting Veterans Law Judge (AVLJ) in February 2010, and before one of the undersigned VLJs in May 2013. Transcripts from both hearings are of record. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the Board member who conducted a hearing. 38 C.F.R. § 20.707. Further, the Court has held that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, at the May 2013 hearing, the Veteran explicitly waived his right to have a hearing before the third member of the panel adjudicating the appeal. (See May 2013 Hearing Transcript at 3). The issues identified on the title page were previously addressed by the Board in August 2010 and January 2012. In August 2010, the Board, in pertinent part, determined that new and material evidence had not been received to reopen the claims of service connection for arthritis of the right or left shoulders. Rating increases were denied for service-connected disorders, to include plantar warts of the right or the left foot, chondromalacia of the right or the left knee, and for residuals of fracture of the right fifth finger. The Board also remanded the fibromyalgia and fatigue claims for additional notification in accord with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran appealed the Board's August 2010 decision to the United States Court of Appeals for Veterans Claims (Court). By a June 2011 Order, the Court granted a joint motion for partial remand (JMR) regarding the shoulder, plantar warts, left knee, and right fifth finger fracture residuals. The JMR noted that the fibromyalgia and fatigue claims were not currently before the Court. In addition, the JMR noted that the Veteran had elected not to pursue further appeal regarding the following increased rating claims: hemorrhoids; rash on his ankles, thighs, and face, as due to an undiagnosed illness; and abdominal hernia. In January 2012, the Board found that new and material evidence had been received to reopen the shoulder claims, but determined that further development was required regarding the underlying service connection claims to include a VA medical examination to address the nature and etiology of the current disabilities. The Board also remanded the plantar warts and knee claims for new VA medical examinations to address the current severity thereof. Finally, the Board again denied a compensable rating for the service-connected right fifth finger fracture residuals. Nothing in the record available for the Board's review reflects the Veteran appealed the January 2012 decision to the Court. For the reasons detailed below, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In this case, a review of the record does not reflect the Veteran was provided with the notification on the fibromyalgia and fatigue claims as directed by the August 2010 Board remand. Similarly, it does not appear the shoulder, plantar warts, and knee claims have been accorded the VA medical examinations directed by the January 2012 remand. The Court has held that "a remand by ... the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by ... the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand." Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, a remand is required in order to complete the development directed by the prior remands. The Board also notes that the JMR which was the basis for June 2011 Court Order in this case contended that there were outstanding VA treatment records which had to obtained in accord with the holding of Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the Board directed that such development be conducted as part of the January 2012 remand, and the Virtual VA system indicates that electronic, paperless VA treatment records were added to that system later in January 2012. However, the record available for the Board's review does not indicate that a Supplemental Statement of the Case (SSOC) or any other adjudicative action was promulgated in light of this evidence, nor that the Veteran has explicitly waived initial agency of original jurisdiction (AOJ) review of such evidence pursuant to 38 C.F.R. § 20.1304(c). Further, the Veteran's testimony at his more recent May 2013 hearing indicates he continues to receive medical treatment through VA for his various medical conditions. As such, it indicates there are additional VA treatment records which are not associated with the record. These should be sought. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes: (1) an explanation of the evidence and information necessary to reopen and substantiate his claim of entitlement to service connection for fatigue and fibromyalgia; (2) the definition of "new" and "material" evidence; and (3) the grounds of the previous final denial. 2. The RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his claimed fatigue, fibromyalgia, shoulders, plantar warts, and knees since at least March 2009. After securing any necessary release, the RO should obtain those records not on file. Even if the Veteran does not respond to this request, the RO should obtain any outstanding VA treatment records. 3. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his purported in-service and post-service symptomatology of his claimed fatigue, fibromyalgia, and shoulder disabilities; as well as the nature, extent and severity of his plantar wart and knee symptoms and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional evidence to the extent possible, the Veteran should be afforded an examination to determine whether any current bilateral shoulder disability is related to service. The claims folder should be made available to the examiner for review before the examination. All indicated tests should be completed. Diagnoses of left or right shoulder disabilities should be confirmed or ruled out. If a current left or right shoulder disability is shown, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current disability had its onset in service or is otherwise the result of a disease or injury in service. A complete rationale for any opinion expressed should be provided, to include if the examiner determines that an opinion cannot be provided without resort to speculation. 5. The Veteran should also be afforded a new examination(s) to evaluate the current nature and severity of his service-connected plantar warts of the right and left feet, as well as the service-connected bilateral chondromalacia of the right and left knees. The claims folder should be made available to the examiner for review before the examination. All indicated tests should be completed. The examination should include an analysis of any foot impairment related to the service-connected plantar warts, in contrast to any foot impairment related to nonservice-connected disabilities. In regard to the service-connected knee disabilities, the examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Such comments should include whether there is additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Additionally, the examiner is requested to identify the nature and severity of any neurologic manifestations, if any, of the Veteran's service-connected chondromalacia of the right and left knees. Note: As to each exam requested, the examiners are advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's statements are discounted, the examiner should provided reasons for doing so. The examiner(s) should also opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 6. After completing any additional development deemed necessary, the RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a SSOC which addresses all of the evidence obtained since these claims were last adjudicated below, 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 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). _____________________________ ___________________________ MICHAEL E. KILCOYNE STEVEN D. REISS Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ___________________________ T. L. DOUGLAS Acting Veterans Law Judge 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).