Citation Nr: 1336362 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-17 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an evaluation greater than 20 percent for polyarthralgia due to hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was certified to the Board by the RO in Roanoke, Virginia. The issue of entitlement to service connection for fibromyalgia has been raised by the record, but has not yet been adjudicated by the agency of original jurisdiction. Therefore, the Board does not have jurisdiction over it, and it is again referred to the agency of original jurisdiction for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims known as Virtual VA. A review of the documents in such file reveals that it contains medical records and an October 2013 Appellate Brief relevant to the issue on appeal. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board notes that the Veteran is currently in receipt of a total schedular rating plus special monthly compensation at the housebound rate. An increase in the polyarthralgia rating will not result in an increase in her current combined schedular rating or the compensation she receives. See 38 C.F.R. § 4.25 (2013). Nonetheless, as the Veteran has asserted that her service-connected polyarthralgia is not currently appropriately evaluated, and the claims file does not contain evidence sufficient to accurately evaluate the level of severity, the case must be again remanded for additional examination. See 38 C.F.R. §§ 3.159(c), 3.327 (2013). The Board is obligated by law to ensure that the RO and AMC comply with its directives; the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that her service-connected polyarthralgia warrants an evaluation greater than 20 percent. She has submitted statements indicating that she suffers from debilitating pain in multiple joints and that the currently assigned evaluation does not adequately reflect the severity of her functional limitations from this disorder. The Veteran's VA medical records show that she has been regularly treated for many years for joint pain. The Veteran underwent a VA examination to assess the severity of her polyarthralgia in April 2012. Although the examiner discussed the Veteran's reports of joint pain, he stated that arthralgias are migratory pains not affecting the function or structure of the joint and therefore and a joint examination was unnecessary. The examiner indicated whether there was swelling, tenderness, or weakness in various joints, but did not provide range of motion findings. Because the April 2012 VA examination failed to provide adequate information regarding the current severity of the Veteran's disability, including any findings on functional limitation or incapacitating episodes, the case was remanded in August 2012 for a new VA examination. Rather than provide the Veteran with a VA examination, the AMC requested a VA medical opinion based on a review of the claims file and medical history. This August 2012 opinion has been associated with the record. This opinion does not, however, provide any of the range of motion testing, nor does it provide findings in accordance with the latest worksheet for rating rheumatoid arthritis, as was previously requested by the Board in August 2012. To obtain such findings, an in-person examination of the Veteran is necessary. As substantial compliance with the prior remand has not been completed, and there is still insufficient evidence of record regarding the current severity of the Veteran's polyarthralgia to decide the claim, and the case must be again remanded for a VA examination. The RO/AMC is instructed to ensure that the examination report fully complies with all instructions set forth in this remand, pursuant to Stegall, as well as with all VA legal standards governing adequate examinations. See 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Evidence of record also indicates that the Veteran receives ongoing VA treatment. Review of the paper and Virtual VA electronic file show that treatment records were last uploaded in August 2012. On remand, additional relevant VA treatment records should be obtained and associated with the claims file. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim.). Accordingly, the case is REMANDED for the following action: 1. Request relevant VA treatment records for the period since August 2012. All records obtained should be associated with the paper and/or electronic claims file. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. The AMC/RO must schedule the Veteran for an in-person VA examination with an appropriate examiner to determine the current severity of her service-connected polyarthralgia. The examination should be scheduled with a VA physician other than either examiner involved in the April 2012 examination. The claims folder and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the paper and electronic claims file have been reviewed. The examiner must specify the dates encompassed by the electronic records. Because polyarthralgia is not specifically listed in the rating schedule, the disability on appeal has been evaluated as rheumatoid arthritis. See 38 C.F.R. §§ 4.20, 4.71a, Diagnostic Codes 5002, 5009 (2013). In accordance with the latest worksheet for rating rheumatoid arthritis, the examiner must provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her polyarthralgia. The examiner must indicate whether the Veteran's polyarthralgia results in symptom combinations productive of definite or severe impairment of health and/or incapacitating exacerbations. The examiner must provide range of motion findings for each and every joint identified by the Veteran as having pain, to include the cervical spine, thoracolumbar spine, shoulders, elbows, wrists, hips, knees, and ankles. Further, the examiner must state whether it is at least as likely as not that the Veteran's fibromyalgia is related to active military service. If not, the examiner must address whether it is at least as likely as not that fibromyalgia is proximately due to or aggravated by any service-connected disorder. If fibromyalgia is not found to be related to or aggravated by service or a service-connected disorder, the examiner is to state whether the symptoms of fibromyalgia can be differentiated from the symptoms of polyarthralgia. If so, the symptoms must be differentiated. If not, the examiner must explain why they cannot be differentiated. A complete rationale for any opinion expressed must be provided. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why this is unknowable must be provided. 3. Ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The AMC/RO must ensure that all examiners have documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. The Veteran is to be notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. 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). 5. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue of entitlement to an evaluation greater than 20 percent for polyarthralgia. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the claims file is returned to the Board for further adjudication. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. MILLIKAN 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).