Citation Nr: 1334213 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 05-27 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for arthritis other than posttraumatic arthritis of the feet, to include rheumatoid arthritis. 2. Entitlement to service connection for left kidney cancer, status post left kidney removal, as secondary to arthritis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from February 1968 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) denying service-connection for rheumatoid arthritis. This matter also comes before the Board on appeal from a January 2005 rating determination of an RO of VA denying service-connection for left kidney cancer. The issues remaining on appeal were previously before the Board. These issues were denied in a July 2010 Board decision. The appellant appealed the Board's July 2010 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated August 2011, the Court vacated the Board's July 2010 denial with regard to these issues and remanded this matter to the Board for compliance with the instructions included in a Joint Motion for Remand (JMR). The Board notes that the July 2010 Board decision additionally granted entitlement to service connection for posttraumatic arthritis of the feet. This grant of service connection was not disturbed by the JMR or the Court Order, and that issue is not before the Board at this time. The issues remaining on appeal were most recently before the Board in February 2012, when they were remanded for additional development in compliance with the JMR. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board remanded these two issues remaining on appeal in February 2012 for the purpose of accomplishing development necessary for compliance with the JMR. Specifically, the Board's remand directed that new VA examinations with medical opinions be developed to address matters of concern discussed in the JMR. Following the RO's processing of the February 2012 Board remand, the Veteran's attorney submitted a brief in May 2013 arguing that the new VA examination reports are inadequate to support final appellate review in satisfying the directives associated with the JMR. The Board has reviewed the matter and finds that it must agree, and another remand is necessary to ensure adequacy of the key evidence and compliance with the Board's prior remand directives and the concerns of the JMR. Here, the Board will now revisit its prior discussion of the concerns expressed in the JMR in this case, and then explain the need for a new remand. The JMR found, in part, that the Board's July 2010 decision failed to ensure compliance with the VA's duty to assist. The JMR discussed that the October 2008 VA examiner opined that the appellant had bilateral knee degenerative joint disease (DJD) secondary to inflammatory arthritis and the aging process. Based on this opinion, the Board determined that there was no medical indication that any non-traumatic arthritis was related to the appellant's service. However, the JMR found that it is not clear from the examiner's opinion whether the appellant's inflammatory arthritis is related to service. The JMR found that remand was necessary for the Board to obtain clarification of the examiner's opinion; specifically, whether the appellant's inflammatory arthritis is related to service. Additionally, as it relates to the question of whether the appellant's kidney cancer is a result of treatment for his arthritis, the Board found that there was no evidence that the treatment of the appellant's service-connected posttraumatic arthritis involved any possible cause of kidney cancer. The JMR found that the Board overlooked the October 2008 examiner's opinion that renal carcinoma is most likely linked to smoking and analgesia nephropathy, besides other factors. The JMR notes that analgesia nephropathy is kidney disease due to renal damage caused by long-term use of analgesics, especially over-the-counter (OTC) medications that contain phenacetin or acetaminophen and nonsteroidal anti-inflammatory drugs (NSAIDs) such as aspirin or ibuprofen. The JMR notes that the record includes evidence of several prescribed NSAIDs. The October 2008 examiner did not opine as to whether the appellant's use of analgesics to treat his posttraumatic arthritis was related to his kidney cancer. The JMR found that it is necessary for the Board to obtain a medical opinion on this issue. Finally, the JMR notes that the appellant complained of swollen and painful joints in a report of medical history taken during an April 1968 airborne examination and on the June 1968 report of medical history taken during his separation examination. The physician noted pain in the appellant's left ankle. Additional development must properly account for and address this evidence from the service treatment records. Accordingly, in February 2012, the Board remanded this matter for a new adequate VA examination to ensure compliance with the terms for the JMR. With regard to the arthritis issue, the Board directed that an etiology opinion be presented by a VA examiner, and the Board's directives included the instruction: Any available service treatment records referring to pertinent symptoms, and the Veteran's overall medical history, should be expressly discussed in connection with the medical opinion. Additionally, the Veteran's own reported recollections regarding pertinent in-service events concerning each disability should be specifically discussed as appropriate. Furthermore, the Board emphasized: In particular, the opinion addressing the etiology of arthritis must specifically discuss the documentation of complaints of swollen and painful joints in April 1968 and June 1968. To ensure compliance with the directives of the August 2011 Joint Motion for Remand and Court Order, the opinion addressing arthritis must make expressly clear whether the appellant's inflammatory arthritis is related to service. Unfortunately, the resulting VA examination report does not comply with the Board's directives; as it is inadequate, the Board may not proceed with final appellate review in compliance with the JMR. Although the March 2012 VA examination report contains well over one hundred pages with various current findings, the portion of the report addressing etiology appears to have overlooked the critical service treatment records discussed in the Board's directives. The March 2012 etiology opinion discusses analysis of post-service in some detail, but with regard to service treatment records the report merely states: "There is no evidence of any clinical features of rheumatoid arthritis during 6 mo of service and during his reserves service. All data indicates he expressed onset of pain years after the military separation." This discussion makes no acknowledgment of the documented in-service complaints of swollen and painful joints in April 1968 and June 1968; it certainly does not address the significance of these service treatment records. The Board is compelled to find that there has not been adequate compliance with the directives of the Board's February 2012 remand with regard to this issue. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the kidney cancer issue, the Board directed that an etiology opinion be presented by a VA examiner, and the Board's directives included the instruction that the opinion must make expressly clear whether the Veteran's use of analgesics to treat his posttraumatic arthritis has caused his kidney cancer or permanently aggravated the severity of his kidney cancer. Significantly, the resulting March 2012 VA examination report addressing this issue contains statements presenting some confusion regarding a key factual predicate relied upon by the VA examiner. At one point, the VA examiner indicates reliance of assumptions "based on the veteran's report that he did not use NSAIDs or other analgesics frequently, and the report by Dr. Andreini on 8/11/03, that veteran had 'no NSAIDs except occasional sample,' ...." The VA examiner cited these facts in the March 2012 report in explaining why the examiner was uncertain whether the Veteran had analgesic nephropathy. In a May 2012 addendum, the VA examiner presented an opinion based upon express citation of the examiner's understanding that "per his own report, he [the Veteran] did not use NSAIDs frequently. This is supported by documentation in the c-file .... analgesics were not a major component of treatment...." Further, the VA examiner presented final conclusions "[b]ased on the above information, including ... only a minor exposure to analgesics by veteran's report and documentation ...." In May 2013, the Veteran's attorney directs attention to evidence in the claims-file documenting what may reasonably appear to show NSAID and analgesic use more significant than that contemplated by the VA examiner's analysis. The Veteran's attorney attached copies of two medical reports, and the Board has located the originals in the claims-file. One report shows specifically that the Veteran was advised to use "Daypro" by a medical provider treating his pain in the feet in August 1994 with continuation of the prescription for at least 7 months or more; Daypro (Oxaprosin) is an NSAID. Records from the same course of treatment also show a prescription for Naprosyn, which is also an NSAID. Additional medical reports from the 1990s show that the Veteran was prescribed other significant medications, including other NSAIDs such as Salsalate. Furthermore, the Board's own review of the medical evidence reveals documentation that the Veteran developed documented "NSAID gastropathy" (including as documented in a September 1995 private medical report); the Board finds that the evidence suggests that there may have been more than "minor" use of NSAIDs in the Veteran's pertinent medical history. The Board finds that it is not entirely a clear matter to distinguish the extent to which certain medications were prescribed for the service-connected post-traumatic arthritis of the feet in contrast to other pathologies such as the Veteran's rheumatoid arthritis. Significantly, however, the Veteran's appeal to establish service connection for the rheumatoid arthritis pathology and/or other instances of arthritis amongst his joints remains pending on appeal as part of this remand, and a grant of service connection for additional arthritis pathology could impact the analysis of this claim of entitlement to service connection for the kidney cancer. The Board further observes that the Veteran's medical records show that his rheumatoid arthritis has been treated with significant medication posing risks to kidney health, such as Methotrexate, which may become significant to this appeal if service connection becomes established for rheumatoid arthritis. In any event, the Board finds that the March 2012 / May 2012 VA examination report addressing the kidney issue does not clearly address or contemplate the full extent of prescribed NSAID treatment documented in the Veteran's potentially pertinent medical history (the extent to which these treatments are linked to service-connected rather than non-service connected arthritis remains somewhat unclear). The Board finds that the argument of the Veteran's attorney identifies information of record warranting more adequate contemplation and discussion in a VA examination report prior to establishing a factual predicate that the Veteran has not had significant NSAID treatment. As the Board is unable to find that the disputed factual predicate relied upon in the VA examiner's opinion is accurate, the Board is unable to find that the medical opinion is probative and adequate to support final appellate review. A remand for clarification is warranted. Furthermore, final appellate review of the kidney cancer issue cannot proceed until development has been completed with regard to the arthritis issue, as the Veteran's claim of entitlement to service connection for kidney cancer is inextricably intertwined with the arthritis claim to the extent that the Veteran contends that some of the medications employed in treatment of the arthritis may have contributed to causing his kidney cancer. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following action: 1. The claims-file should be forwarded to the author of the March 2012 VA examination report concerning the Veteran's claim of entitlement to service connection for arthritis (other than posttraumatic arthritis of the feet), to include rheumatoid arthritis, if available, so that the examiner may author an addendum to clarify and amend the information previously presented. If the examiner is unavailable, the Veteran's claims-file should nevertheless be forwarded to an appropriate specialist for review and an opinion. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the analysis and opinion. After review of the claims-file and all pertinent information, the examiner is asked to specifically respond to the following: (a) Clearly identify all diagnoses of arthritis (to include rheumatoid arthritis). (b) As to each such current arthritis diagnosis identified, the examiner should offer an opinion as to whether that disability is at least as likely as not (a 50 percent or higher degree of probability): i) causally related to the Veteran's active duty service; ii) causally related to any service-connected disability; or iii) permanently aggravated in severity by any service-connected disability. Any available service treatment records referring to pertinent symptoms, and the Veteran's overall medical history, should be expressly discussed in connection with the medical opinion. Additionally, the Veteran's own reported recollections regarding pertinent in-service events concerning each disability should be specifically discussed as appropriate. (c) In particular, the opinion addressing the etiology of arthritis must specifically discuss the documentation of complaints of swollen and painful joints in April 1968 and June 1968. To ensure compliance with the directives of the August 2011 Joint Motion for Remand and Court Order, the opinion addressing arthritis must make expressly clear whether the appellant's inflammatory arthritis is related to service. A rationale must be offered for all opinions expressed. 2. The claims-file should be forwarded to the author of the March 2012 VA examination report (and May 2012 addendum) concerning the Veteran's claim of entitlement to service connection for kidney cancer, if available, so that the examiner may author an addendum to clarify and amend the information previously presented. If the examiner is unavailable, the Veteran's claims-file should nevertheless be forwarded to an appropriate specialist for review and an opinion. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the analysis and opinion. After review of the claims-file and all pertinent information, the examiner is asked to specifically respond to the following: (a) Regarding the Veteran's history of kidney cancer, the appropriate examiner should offer an opinion as to whether that disability is at least as likely as not (a 50% or higher degree of probability): i) causally related to the Veteran's active duty service; ii) causally related to any service-connected disability; or iii) permanently aggravated in severity by any service-connected disability. Any available service treatment records referring to pertinent symptoms, and the Veteran's overall medical history, should be expressly discussed in connection with the medical opinion. (b) In particular, the opinion addressing the etiology of kidney cancer must specifically discuss the October 2008 examiner's opinion that renal carcinoma is most likely linked to smoking and analgesia nephropathy, besides other factors. To ensure compliance with the directives of the August 2011 Joint Motion for Remand and Court Order, the opinion addressing kidney cancer must make expressly clear whether the appellant's use of analgesics to treat his service-connected posttraumatic arthritis of the feet was a cause of his kidney cancer or permanently aggravated the severity of his kidney cancer. (c) Additionally, as there remains a pending appeal seeking to establish service connection for rheumatoid arthritis, the examiner should explain whether the use of NSAIDs and other analgesics along with other medications employed in treatment of rheumatoid arthritis (such as Methotrexate) was a cause of his kidney cancer or permanently aggravated the severity of his kidney cancer. (d) In answering the above, the examiner must specifically address the contentions of the Veteran's attorney that a history of documented prescriptions for Daypro, Naprosyn, Salsalate (and any other NSAIDS or pertinent analgesics) constitutes more than the "minor exposure to analgesics" as was contemplated by the prior VA examination report addressing the issue. Please also comment upon the significance of the Veteran's documented NSAID gastropathy noted in September 1995. A rationale must be offered for all opinions expressed. 3. In the interest of avoiding future remand, the RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination reports. 4. Following completion of the above, and any other necessary development, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ ALAN S. PEEVY 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).