Citation Nr: 1342985 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-15 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for rheumatoid arthritis, to include as due to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from May 1944 to March 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the claim in August 2013 for additional development. In December 2013 the Veteran submitted a waiver of local jurisdiction in regard to evidence he submitted directly to the Board following the last adjudication of the claim by the RO. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2013). This appeal was processed using the Veterans Benefits Management System and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In its August 2013 remand, the Board requested that a VA examination be provided to the Veteran in order to obtain an etiology opinion regarding currently diagnosed rheumatoid arthritis (RA). Specifically, the remand order requested that the VA examiner provide an opinion on direct service connection and provide a rationale for the opinion which took into consideration the competent and credible statements of the Veteran regarding continuity of RA symptomatology since service. A VA examination was provided in November 2013. However, in providing a negative etiology opinion, the examiner did not discuss the Veteran's statements and instead relied largely on the lack of symptoms or diagnoses in service medical records. This opinion is inadequate for the purposes of determining the etiology of the Veteran's RA. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (the Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements); see also Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008) (an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report). As the Board's August 2013 remand order has not been complied with, remand of the issue is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (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). In December 2013, the Veteran submitted evidence regarding a connection between RA and service-connected PTSD. Service connection is provided for a disability, which is proximately due to, or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2013). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that the new regulation requires that the aggravation be supported by medical evidence created prior to the claimed aggravation. 71 Fed. Reg. 52,744-52,747 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(a)). The Board notes that a VA opinion regarding whether the Veteran's RA was either caused by or aggravated by his service-connected PTSD has not been obtained. Therefore, upon remand, the examiner is requested to provide such an opinion as well as the requested opinion regarding direct service connection. All records of ongoing VA treatment should also be obtained and associated with the claims file. 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) (2013). Expedited handling is requested.) 1. Obtain all outstanding VA medical records and associate them with the virtual file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, provide the Veteran with a VA rheumatology examination with a qualified physician to determine whether any current disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that current RA had onset in service or is otherwise related to a disease or injury in service, including the episode of catarrhal fever. In answering this question the examiner should address the Veteran's competent assertions that he has experienced symptoms of rheumatoid arthritis since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. To the extent possible, (likely, unlikely, at least as likely as not) the examiner should opine whether the Veteran's RA disability was either (a) proximately caused by or (b) proximately aggravated by his service-connected PTSD. If the examiner states that RA is aggravated by PTSD, although not directly caused by it, the examiner should indicate the degree of additional impairment caused by PTSD beyond the natural progress of the disease prior to the impairment, in terms conforming to the rating schedule. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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. 2013). _________________________________________________ J. A. MARKEY 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).