Citation Nr: 1342866 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-44 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for hypertension, to include as secondary to rheumatoid arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2013, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Following the hearing, the Veteran submitted additional evidence accompanied by a written waiver of initial RO consideration of the evidence. Thus, this evidence is accepted for inclusion in the record on appeal. Clarification of issue on appeal The issue of entitlement to service connection for rheumatoid arthritis was originally framed as whether new and material evidence had been received to reopen the claim of entitlement to service connection for rheumatoid arthritis. As will be discussed below, the Board finds that new and material evidence is not required and the issue should be framed as entitlement to service connection for rheumatoid arthritis. With respect to the historical background, the Veteran initiated a claim for service connection for rheumatoid arthritis in August 2008. The Veteran's claim was denied by a November 2008 rating decision. New and material evidence was received within one year of the November 2008 rating decision consisting of a positive nexus opinion from a VA nurse practitioner. 38 C.F.R. § 3.156(c) (2013). The Veteran was also provided a VA examination in January 2009 wherein the examiner provided a negative nexus opinion. The claim for service connection for rheumatoid arthritis was readjudicated and denied by an April 2009 rating decision. 38 C.F.R. § 3.156(b) (2013). Within one year of the April 2009 rating decision, new and material evidence was received and consisted of a lay statement from the Veteran's ex-wife. The claim was readjudicated by a July 2009 rating decision. Id. Within one year of the July 2009 rating decision, new and material evidence was received which consisted of a more detailed lay statement from his ex-wife. She explained that the Veteran's condition existed shortly after discharge from the Navy and observed his physical state to include stiffness and difficulty rising in the mornings. The claim was readjudicated by an October 2009 rating decision. Id. Within one year of the October 2009 rating decision, new and material evidence was received which consisted of a statement from the Veteran. The Veteran cited to scientific studies that found that exposure to lead based paints has been proven to cause rheumatoid arthritis. He cited a study in which it was noted that various elements in Navy paints which were now considered hazardous included lead. The claim was readjudicated by an April 2010 rating decision. Id. The RO denied the Veteran's claim as there was no evidence of treatment for or a diagnosis of arthritis that incurred in or related to his military service or manifested to a compensable degree within one year of discharge from military service. Within one year of the April 2010 rating decision, the RO received a statement from the Veteran in which he disputed the RO's conclusion that there was no evidence of a diagnosis within the one year period following separation from active service. The Veteran cited the Merck Manual of Health and Aging and stated that damage to joints is usually gradual but that sometimes rheumatoid arthritis is limited and becomes dormant before significant damage occurs. It was noted that rheumatoid arthritis may be mild with occasional flare-ups followed by long periods of remission or may progress steadily, either slowly or rapidly. This statement is considered new and material evidence. 38 C.F.R. § 3.156(c). The claim was readjudicated by the July 2010 rating decision, which is the rating decision that is on appeal. In light of the above, the Board finds that the Veteran's claim has been pending since it was initiated in 2008. Therefore, the issue on appeal is properly characterized as a claim for entitlement to service connection for rheumatoid arthritis, rather than a claim to reopen the issue of entitlement to service connection, as reflected on the cover page of this decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The issue of entitlement to a total rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and the issue is 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 The Veteran submitted VA Forms 21-4142, Authorization and Consent to Release Information to VA, in October 2011. He identified private medical treatment pertaining to his rheumatoid arthritis from Dr. Robert Boyd from 1990 through October 2011 and treatment from Dr. Mark Bartz from 1980 through October 2011. Treatment records from both providers were associated with the record prior to the submission of the release forms in October 2011. However, the Veteran identified treatment through October 2011. The RO did not appear to request records from the identified physicians as requested by the Veteran. Therefore, the RO must request these identified records from Dr. Robert Boyd and Dr. Mark Bartz. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). With respect to the Veteran's claim for entitlement to service connection for rheumatoid arthritis, the Board finds that an additional medical opinion is required. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was provided a VA examination in April 2009. The claims file was not available for review. The examiner opined that it was "less likely than not" that the Veteran's arthritis problem was related to military service because exposure to lead was not commonly considered a cause of rheumatoid arthritis. The examiner cited to one study. The Board finds the opinion inadequate as the examiner did not consider the Veteran's statements and the lay statements regarding continuity of symptoms since active service. The Veteran was provided another VA examination in June 2011. The claims file was reviewed. The examiner stated that he found "no documentation of any joint complaints of treatment for joint problems in the service medical records." The Board finds the examiner's opinion to be inadequate. The examiner stated that there was no evidence of joint problems in the service treatment records; however, there was a notation of knee trouble in a June 1968 service treatment record. Accordingly, a new medical opinion is required. Barr, 21 Vet. App. 303, 312 (2007). In remanding for a new opinion, the Board acknowledges that the Veteran has presented several medical opinions regarding his rheumatoid arthritis. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The Board finds that the evidence is insufficient to support a grant of service connection. The statements from the Veteran's nurse practitioner provide positive nexus opinions without a supporting rationale. In a June 2013 letter, Dr. Paul Kellett stated that "exact cause of Rheumatoid Arthritis remains unknown. Therefore, it is not possible to assign a particular etiology to his disease." Dr. Kellett then stated that "reasonable to a certain degree of medical certainty to consider [the Veteran's] lead exposure as possibly related to and as least as likely as not to have been the trigger" for his rheumatoid arthritis. The Board finds the opinion to be speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). Dr. Vincent Toussaint originally submitted a letter and indicated that it was likely that the Veteran's exposure to toxic materials while in the service was a "factor" in the development of his rheumatoid arthritis. Subsequently, Dr. Toussaint opined that it was likely that the Veteran's disease was caused by environmental factors related to exposure to toxic materials. The opinion was supported by cited studies. However, there are no copies of the studies and it appears that the summaries of the studies were those that were summarized and cited by the Veteran in an earlier statement. In comparing Dr. Toussaint's opinion to the Veteran's statements calls into question whether Dr. Toussaint's opinion was based on his own review of the studies or based on the Veteran's own summaries of the studies. As a result, a VA medical opinion is required. Finally, the Veteran has not been provided VA examinations with respect to his claims for service connection for hypertension and a left knee disability. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, 3.313, 3.316, and 3.317, manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4) (2013). Note (ii) provides that the third requirement may be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. Id. With respect to the left knee disability, the record indicates that the Veteran may have a separate diagnosis of osteoarthritis in addition to his general diagnosis of rheumatoid arthritis. In addition, the service treatment records reflect a notation of knee trouble and the Veteran stated that his joint problems have existed since service. Therefore, a VA examination is required. Id. With respect to hypertension, the Veteran reported that he had instances of high blood pressure during active service. A June 1968 service treatment record shows that the Veteran was noted as having high blood pressure. Thus, the Board finds that a VA examination is required. Id. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notification letter with respect to the criteria required to substantiate a claim for secondary service connection. 2. Request all private treatment records from Dr. Robert Boyd and Dr. Mark Bartz. If new releases are required to request the treatment records, send the requisite forms to the Veteran and ask that he complete the forms so that VA may request the records on his behalf. In light of the changes to 38 U.S.C.A. § 5103A(2)(B), the RO/AMC must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts with respect to this directive should be associated with the claims file. 3. Request a medical opinion to determine the etiology of the Veteran's rheumatoid arthritis. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that rheumatoid arthritis was caused by or related to active service, to include exposure to lead-based paint. In providing the above opinion, the examiner must discuss the other evidence of record including the cited studies as mentioned by the Veteran and Dr. Toussaint. In addition, the examiner should address the Veteran's statements regarding his continuity of symptoms since service and the notation of knee trouble in the June 1968 service treatment record. A complete rationale for all opinions must be provided. 4. Schedule the Veteran for a VA examination to determine the etiology of his left knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Following a review of the claims file and the examination results, the examiner is requested to: Provide all diagnoses with respect to the left knee. Specifically address whether there is a diagnosis other than rheumatoid arthritis. If there is a diagnosis other than rheumatoid arthritis, express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that a left knee disability was caused by or related to active service. In providing the aforementioned opinion, please discuss the finding of left knee trouble in the June 1968 service treatment record. A complete rationale for all opinions must be provided. 5. Schedule the Veteran for a VA examination to determine the etiology of his hypertension. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Following a review of the claims file and examination of the Veteran, express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that hypertension was caused by or related to active service. In providing the aforementioned opinion, discuss the notation of increased blood pressure in the June 1968 service treatment record. If the opinion is unfavorable, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that hypertension was caused by or aggravated by rheumatoid arthritis. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions must be provided. 6. After completing the above development, readjudicate the issues on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative and return the appeal to the Board for review, after the Veteran has had an adequate opportunity 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). _________________________________________________ U.R. POWELL 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).