Citation Nr: 1422933 Decision Date: 05/20/14 Archive Date: 05/29/14 DOCKET NO. 09-13 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for arthritis for joints other than the knees and feet. 2. Entitlement to service connection for erectile dysfunction. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In his March 2007 claim, the Veteran sought service connection for arthritis. In a September 2009 decision, the Lincoln, Nebraska RO granted service connection for arthritis of the bilateral feet. In a December 2009 decision, the RO granted service connection for the bilateral knees. As these decisions represent a full grant of the benefit sought, the issues of service connection for arthritis of the bilateral knees and bilateral feet are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). However, the issue of entitlement to service connection for arthritis for joints other than the knees and feet remains before the Board. In February 2013 and August 2013 the Board remanded the Veteran's claims for further development. The case has been returned to the Board for appellate action. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2014. A transcript of the hearing is contained on the Virtual VA paperless claims processing system. The Virtual VA paperless claims processing system also contains treatment records from the VA Nebraska-Western Iowa Health Care System dated October 2009 to April 2013; other documents are duplicative of the evidence of record. The Veterans Benefits Management System does not include any relevant documents. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board again finds that further development is necessary, and the Veteran's claims must again be remanded. For reasons explained immediately below, a remand is necessary for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In its February 2013 remand, the Board directed the AOJ to attempt to secure all of the Veteran's treatment records, to include service treatment records from the Veteran's period of active duty from November 1969 to September 1971. The AOJ was to specifically document its attempts to locate these records, and if unavailable, explain "in writing why further attempts to locate or obtain any government records would be futile." The AOJ was then to send the Veteran and his representative written notice of the records it was unable to obtain, explain the efforts it had made, and describe any further action to be taken by the AOJ. To date, service treatment records for the Veteran's period of active duty have not been associated with the claims file, and the record does not indicate the AOJ has explained in writing that further attempts to locate these records would be futile, or sent written notice to the Veteran and his representative of such. On remand, the AOJ should make appropriate efforts to obtain the Veteran's service treatment records from his period of active duty service, document its attempts to obtain these records, and if further attempts would be futile, provide written notice of such to the Veteran and his representative. Further, the Veteran's VA treatment records indicate the Veteran has received treatment from a private primary care physician, Dr. M.W.S. See July 2010 Co-Management Care Note (includes the physician's full name and address). On remand, the AOJ should make appropriate efforts to obtain treatment records from this physician. At the March 2014 Travel Board hearing, the Veteran testified that the joints affected by arthritis, other than his knees and feet, are his ankles and his fingers. The Veteran further testified that the arch supports he has been given to help his service-connected feet have also helped his ankles. The Veteran also testified that his arthritis in his lower extremities was caused by all of his basic training being performed in combat boots, and by marching over rough or uneven ground during service. See also June 2009 Decision Review Officer hearing testimony. The Veteran's private treatment records indicate that carpometacarpal (CMC) joint arthritis of both thumbs has been diagnosed. See October 2012 Wright Orthopedic Surgery treatment note. Under the VCAA, VA is obliged to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, the Veteran should be afforded a VA examination to determine the nature and etiology of any current arthritis other than in his knees and feet, to include in his ankles and/or hands. Finally, at the March 2014 Travel Board and June 2009 Decision Review Officer hearings, the Veteran testified that he believes his erectile dysfunction was caused by the amount of time he was away from home during service, as well as the stress he felt during service from a variety of factors related to service. The Veteran's VA treatment records show the Veteran has been diagnosed with erectile dysfunction. See, e.g., September 2012 Primary Care Clinic Note (listing erectile dysfunction under "Review of Symptoms"); August 2011 VA Primary Care Clinic Note (prescribing a medication for sexual impotence). Again, under the VCAA and McLendon, on remand the Veteran should be afforded a VA examination to determine the nature and etiology of his erectile dysfunction. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain all outstanding treatment records pertinent to the Veteran's claims, to include his service treatment records from his period of active duty from November 1969 to September 1971, and private treatment records from Dr. M.W.S. The Veteran's assistance should be requested as needed. Outstanding VA treatment records should also be obtained. All obtained records should be associated with the claims file. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After the above development has been completed, and after any records obtained have been associated with the claims file, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's arthritis, to include of his bilateral ankles and hands. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Please identify with specificity any arthritis that is currently manifested, or that has been manifested at any time since March 2007, other than the Veteran's bilateral feet and knees. The examiner should specifically address the Veteran's March 2014 Travel Board hearing testimony that he experiences arthritis in his ankles and his fingers, as well as the diagnosis of CMC joint arthritis of both thumbs in the Veteran's private treatment records. b) For each diagnosis of arthritis other than the feet and knees, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's arthritis had its onset within the first post-service year following discharge from active military service? c) For each diagnosis of arthritis other than the feet and knees, is it at least as likely as not (i.e. probability of 50 percent or greater) that the arthritis is related to or caused by the Veteran's active duty service? The examiner should specifically address the Veteran's contention that he performed all of his basic training in combat boots, and that he conducted training exercises over very rough terrain and uneven pastures. d) For each diagnosis of arthritis other than the feet and knees, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's arthritis was caused by the Veteran's arthritis of the bilateral knees and/or arthritis of the bilateral feet? The examiner should specifically address the Veteran's Travel Board hearing testimony that the arch supports he was given for his feet have also helped his ankles. e) For each diagnosis of arthritis other than the feet and knees, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's arthritis is aggravated by the Veteran's arthritis of the bilateral knees and/or arthritis of the bilateral feet? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 3. After #1 has been completed, and after any records obtained have been associated with the claims file, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his erectile dysfunction. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiry: Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's erectile dysfunction is related to or caused by the Veteran's active duty service? The examiner should specifically address the Veteran's testimony that that he believes his erectile dysfunction was caused by the amount of time he was away from home during service, as well as the stress he felt during service from a variety of factors related to service. See March 2014 Travel Board hearing testimony; June 2009 Decision Review Officer hearing testimony. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. The AOJ should conduct any other development deemed appropriate. 5. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran 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. 2013). _________________________________________________ DAVID L. WIGHT 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).