Citation Nr: 1803132 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-21 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for arthritis in the fingers of the left hand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Kuczynski, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1979 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2013, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript is of record. In June 2015, he was provided the opportunity to testify at another hearing before a different Veterans Law Judge, but he did not respond. The Board remanded the issue for further development in March 2014, December 2014, and September 2015. That development was completed, and the Board denied the claim for service connection for arthritis in the fingers of the left hand in a September 2016 decision. The Veteran appealed the September 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Order, the Court granted a Joint Motion for Remand (Joint Motion) and vacated the September 2016 Board decision. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In light of the Joint Motion, additional development is necessary prior to final adjudication of the Veteran's claim. The parties to the Joint Motion agreed that the most recent January 2016 VA examination was inadequate and that an additional VA examination or medical opinion was needed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left fingers that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a new VA examination to determine the nature and etiology of any arthritis of the fingers of the left hand that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include x-rays of the left hand. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Board is seeking an additional medical opinion based on an October 2017 Court Order granting a Joint Motion for Remand, which found that the Board had previously denied the claim without an adequate medical opinon relying on the favorable finding that the Veteran had left hand arthritis. If the examiner determines that the Veteran does not have arthritis, he or she should reconcile that determination with the February 2012 report showing early scattered degenerative joint changes present and the February 2012 VA examination noting a diagnosis of left hand arthritis and address any current x-ray findings. The examiner should state whether it is at least as likely as not that the Veteran has arthritis of the fingers of the left hand that is related to his military service, to include the 1985 injury or any symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that arthritis of the fingers of the left hand is caused by or aggravated by the Veteran's service-connected left wrist disability, post-operative tendon repair. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If a report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).