Citation Nr: 18149745 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 14-23 357 DATE: November 14, 2018 REMANDED The claim of entitlement to service connection for degenerative arthritis of the joints of the right hand is remanded. The claim of entitlement to service connection for degenerative arthritis of the joints of the left hand is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1980 to March 1983. This appeal before Board of Veterans’ Appeals (Board) arose from a November 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, denies service connection for arthritis of the joints of both the right and left hand. The Veteran disagreed with the RO’s denials, and this appeal ensued. In December 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. In April 2018, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development. In the April 2018 remand, the Board noted the convoluted procedural history with respect to the appellate status of the service connection claims for degenerative arthritis of the joints of both hands. In short, the Board determined that it was proper to assume jurisdiction over both claims. Also, the appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Unfortunately, the Board finds that further AOJ action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded these matters in April 2018 for the AOJ to schedule a new VA examination of the Veteran’s hands with an appropriate physician. The Board directed that the physician must consider and discuss all medical evidence and lay assertions, to include the Veteran’s assertion that he injured both hands when he fell while playing basketball during service, and that he has continued to experience pain in both hands since that time. The Board additionally directed that the physician should explain why the injury, as described by the Veteran, would or would not contribute to the development of present degenerative arthritis in either hand. As the Board noted, without specific discussion of the Veteran’s lay assertions regarding the onset and continuity of symptoms, and why the in-service injury would not contribute to the development of degenerative arthritis, the Board could not rely on a conclusory statement that the Veteran’s current degenerative arthritis was less likely than not due to service. See Nieves–Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (providing that a “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”). While, pursuant to the remand, the Veteran was afforded a new VA examination in June 2018, the examiner insinuated that the Veteran’s service treatment records indicated that his only complaint was with respect to the right wrist, consequently noting that a wrist injury had no correlation to the fingers, then proceeded to provide negative, and conclusory opinions with respect to an etiological relationship between the Veteran’s current degenerative arthritis of the hands, and his active service. Additionally, while the examiner indicated that the evidence was also suggestive of rheumatoid arthritis, she did not opine as to the etiology of the rheumatoid arthritis. Review of the STRs reveals that at the time of the in-service injury in December 1982, the Veteran also reported that he had radiating pain into his right, middle finger. Minimal swelling was present. The December 1982 x-ray report also noted that the Veteran reported falling onto his hand, and both the hand and wrist were x-rayed, revealing a displaced chip fracture at the volar aspect of the PIP joint of the right fifth finger (a disability for which service connection is now in effect), and two small bony densities adjacent to the neck of the first metacarpal. Thus, where the Veteran apparently reported having injured both the right hand and wrist, the June 2018 VA examiner’s opinion appears to have been based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Moreover, the examiner did not address the Veteran’s lay assertions of having injured both of his hands during the in-service fall, and that he continued to experience pain in both hands since that time, in spite of the Board’s remand directives. Rather, the examiner largely relied on an apparent absence of medical evidence of injury to the hands in the Veteran’s STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion based solely on an absence of documentation in the record is inadequate); see also Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also notes that the June 2018 VA examination was conducted by a nurse practitioner, and not a physician, as directed. Given all the above, the Board finds that another remand of these matters is required for a new VA examination, by an appropriate physician, to obtain etiology opinions responsive to the prior remand directives. See Stegall, supra. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through May 2018. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since May 2018. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal.   These matters are hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since May 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his hands by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The physician should clearly identify and diagnose all right hand and left hand disability(i)es (other than residuals of a chip fracture of the right fifth PIP joint)—to include degenerative arthritis—currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, with respect to each such diagnosed disability, the physician must provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its onset during the Veteran’s active service; or, is otherwise related to an in-service injury, event, or disease, to include the Veteran’s reported injury to both hands after falling while playing basketball in service. In addressing the above, the physician must consider and discussion all medical evidence and lay assertions—to specifically include medical evidence indicating that he injured both the right hand and wrist as a result of his fall, and the Veteran’s assertions that he injured both hands when he fell in service and that he has continued to experience pain in both hands since that time. The physician should explain why the injury as described by the Veteran would or would not contribute to the development of current disability, to include degenerative arthritis, in either hand. Complete, clearly-stated rationale for the conclusions reached—to include specific discussion of the Veteran’s lay assertions—must be provided 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel