Citation Nr: 1455804 Decision Date: 12/18/14 Archive Date: 12/24/14 DOCKET NO. 05-32 651A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 6, 1963 and from July 22, 1963 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Veteran appeared at the Montgomery, Alabama RO and testified at a hearing before a Veterans Law Judge, who is no longer employed at the Board. The Veteran declined the opportunity for another hearing before a Veterans Law Judge who would decide his claim. In any case, a transcript of the June 2011 hearing is of record. In September 2013, the Board issued a decision (from a different Veterans Law Judge than who is presently reviewing the case), which denied the Veteran's claim of service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), resulting in a Joint Motion for Remand (Joint Motion) by the parties. In a July 2014 Order, the Court granted a Joint Motion for Partial Remand by the parties (the Veteran and the legal representative of the VA, the Office of the General Counsel), thereby vacating the Board's decision in part and remanding the case to the Board for readjudication consistent with the Joint Motion. (That part of the Board's decision, granting service connection for posttraumatic stress disorder, was not disturbed.) The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the Joint Motion of July 2014, the parties agreed that the May 2013 VA medical opinion, upon which the Board relied in its September 2013 decision, should not have been accorded any evidentiary weight because it was based on an inaccurate factual premise, namely, that the Veteran did not suffer ongoing problems during service. It was pointed out that a September 1963 service treatment record noted a diagnosis of questionable arthritis (this same record reflected periodic sore feet and swollen toes). Thus, the May 2013 opinion was deemed inadequate. The Joint Motion called for another medical opinion, provided that the Board did not find that service connection was warranted on the theory of entitlement based on continuity of symptomatology under 38 C.F.R. § 3.303(b). In consideration of the foregoing and the Veteran's lay evidence regarding the continuity of his symptoms, the Board concludes that another medical opinion to address the questions raised in this case is needed to decide the claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should arrange to have the claims file reviewed by the VA physician who provided the May 2013 medical opinion, if available, or another VA physician if that provider is not available, to furnish an addendum opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current diagnosis of reactive arthritis or seronegative spondyloarthropathy was related to, caused by, or aggravated by his periods of service from July 1961 to July 6, 1963 and from July 22, 1963 to September 1964. If the physician needs to physically evaluate the Veteran in order to furnish the opinion, an examination should be arranged. It is critical that the consulting physician provide a rationale for all opinions, which includes a discussion of the following: the service treatment documentation in September 1963 of questionable arthritis (when the Veteran was seen for periodic sore feet and swollen toes); the VA examination report of November 2004, wherein the examiner opined, without any rationale, that the Veteran's joint pain was at least as likely as not related to his active duty; and the Veteran's testimony to the effect that he experienced pain in his toes and knees while in service which continued to give him trouble throughout his service, that the pain moved into his back and neck, that he received treatment for this condition after service, and that he was still undergoing treatment. The physician should consider whether the Veteran's statements of symptoms during and after service constitute residuals of his current condition. If the consulting physician is unable to provide the requested opinion without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the provider does not have the needed knowledge or training). 2. Thereafter, the AOJ should adjudicate the claim of service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis. If it remains denied, furnish the Veteran and his representative an appropriate supplemental SOC, afford them opportunity to respond, and return the case to the Board. 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 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 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2014).