Citation Nr: 18149333 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 11-05 455 DATE: November 9, 2018 REMANDED Entitlement to service connection for arthritis and/or chronic joint pain, to include as due to an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1973 to March 1975 and from September 1990 to April 1991. He had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. This appeal comes before Board of Veterans’ Appeals (Board) from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in June 2017, the Board remanded the matter for additional evidentiary development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denial in an April 2018 supplemental statement of the case (SSOC). The Veteran was informed on May 25, 2018, that his appeal had been returned to the Board for further appellate proceedings. On June 19, 2018, he submitted a notice to the RO electing to opt in to VA’s Rapid Appeals Modernization Program (RAMP). However, as the information letter clearly informed him, compensation-related appeals certified to the Board and “activated” through formal placement on the Board’s docket are excluded from RAMP and will remain pending in the current appeals process. Therefore, his request to opt in to RAMP cannot be honored, as it was received after his case was docketed at the Board. The Veteran asserts that he has had chronic joint pain since discharge from service in April 1991 that he attributes to an undiagnosed illness. The Board, in its previous remand in June 2017, pointed out that the Veteran complained of swollen or painful joints at the time of discharge from service in April 1991, and that there was positive joint pain and/or swelling for which no consideration or assessment was offered in September 2014 and in September 2016. The Board also pointed out that there were contradictory assessments made by the May 2016 VA examiner, Dr. Rodriguez-Arboleda, and the September 2016 VA examiner, Dr. Valera-Lozada, on the diagnoses of degenerative arthritis, patellofemoral pain syndrome, and bilateral wrist tendinitis. Due to the shortfalls of both VA examinations and the unexplained contradictions, the Board found that the Veteran should be afforded another VA examination that cured the inadequacy and addressed the contradictions. The Veteran was examined in August 2017 by a VA examiner, Dr. Rodriguez-Arboleda, who wrote the May 2016 medical opinion. The Veteran reported “conditions” in his “hip and thigh, knee and lower leg.” The examiner stated that there was no evidence of any non-degenerative joint disease, and diagnosed the Veteran with mild degenerative joint disease in the hip only. No diagnosis or assessment was made on the Veteran’s “knee and lower leg” despite the Veteran reporting a “condition.” Another VA examiner, Dr. Valera-Lozada, who authored the September 2016 medical opinion, provided a medical opinion on February 2018. It is unclear from the examiner’s opinion whether she also reviewed the August 2017 VA examination, as she only discusses the September 2016 and November 2017 VA examinations in her opinion. In addition, instead of addressing the shortfalls and contradictions discussed in the Board’s July 2017 decision, the February 2018 VA examiner, Dr. Valera-Lozada, wrote “this is a copy and paste of my medical opinion on Sept[ember] 29 2016.” The only rationale the examiner added was that “there was no undiagnosed illness at the moment of the examination on September 29, 2016.” Again, the Veteran’s “knee and lower leg conditions” remained unaddressed, and the medical opinion that the Board found insufficient was quoted verbatim without additional rationale. The February 2018 opinion by Dr. Valera-Lozada also lacked any indication that it considered the August 2017 VA examination. As the February 2018 medical opinion merely repeats the insufficient September 2016 medical opinion with no consideration of the most recent VA examination, the Board finds that its July 2017 remand directives were not followed. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Also, when a VA examination is provided or when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate. The matter is REMANDED for the following action: Schedule the Veteran for an examination by a VA physician, preferably one who is a specialist in Gulf War syndrome/undiagnosed illnesses, to determine whether the Veteran has chronic joint pain or a medically unexplained chronic multi-symptom illness, to include its likely etiology or lack thereof. All indicated tests and studies should be performed and clinical findings must be reported in detail. The examiner must acknowledge that the claims file was reviewed. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented history and assertions. Specifically, the Veteran’s report of swollen and/or painful joints in April 1991, September 2014, and September 2016, as well as his report of “knee and lower leg conditions” or any other symptom of joint pain, must be addressed in the examination. After a thorough review of the evidence and physical examination based on the Veteran’s documented history and assertions, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) that: a. the Veteran has chronic joint disability that relates back to service, b. if not, whether it is at least as likely as not any joint pain may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness. The examiner must provide a well-supported opinion and complete rationale for the opinions and conclusions reached. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel