Citation Nr: 18159295 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 14-30 284 DATE: December 19, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent for service-connected left wrist arthritis is remanded. Entitlement to an increased rating in excess of 10 percent for service-connected right wrist arthritis is remanded. Entitlement to service connection for arthritis of the left hand is remanded. Entitlement to service connection for arthritis of the right hand is remanded. Entitlement to service connection for arthritis of the low back is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for arthritis of the left shoulder is remanded. Entitlement to service connection for arthritis of the right shoulder is remanded. REASONS FOR REMAND The Veteran had active service from January 31, 1973 to March 8, 1973. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in October 2012 that in pertinent part, denied an increase in 10 percent ratings for service-connected arthritis of the left and right wrists, and denied service connection for arthritis of the left and right hands, left and right shoulders, and low back, and sleep apnea. A Board hearing was requested and scheduled, but the Veteran failed to report for such hearing. During the pendency of the appeal, the AOJ granted service connection and a 10 percent rating for a left foot disability. As the Veteran has not timely perfected an appeal for a higher initial rating, this issue is not in appellate status. The Board notes that the Veteran’s attorney attempted to withdraw representation in correspondence received at the Board after the appeal was recertified. See October 2014 VA Form 8; September 2015 correspondence from attorney. As this action does not comply with the requirements found at 38 C.F.R. § 20.608 (b), the attorney is listed as the Veteran’s representative solely for the purposes of this decision. The Board wrote to the Veteran’s representative in August 2018, advising him of the requirements for withdrawal. He was advised that if a response to the Board's letter was not received within 30 days, the Board will assume he wishes to remain the Veteran's representative. No response was received from the representative. REASONS FOR REMAND SSA Records Records reflect that the Veteran receives disability benefits from the Social Security Administration (SSA). SSA records are not on file. On remand, the AOJ should attempt to obtain these potentially relevant SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (noting that the duty to assist includes obtaining relevant records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim). Medical Records Ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 1. Increased ratings for service-connected bilateral wrist disabilities is remanded. Records reflect that the Veteran failed to report for a VA examination scheduled in July 2014 in connection with his claims for increased ratings for his service-connected bilateral wrist disabilities. In an August 2016 telephone call, the Veteran stated that he did not receive notice of the scheduled VA examination. Governing regulation provides that when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b). It is unclear from the record whether the Veteran received adequate notice of this examination. In light of the Veteran's contentions, these claims are remanded for a new compensation examination to determine the current severity of these disabilities. 2. Service connection for arthritis of the bilateral hands and fingers is remanded. As noted above, the Veteran had active service from January 31, 1973 to March 8, 1973, i.e., less than 90 days. Thus, service connection may not be established for arthritis on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). Historically, during service in February 1973, the Veteran complained of wrist pain and a rash on the dorsum of his hands. The diagnostic impression was allergic rash. In March 1973, he was diagnosed with severe limitation of motion of both wrists, secondary to advanced rheumatoid arthritis, existing prior to service. Subsequently, service connection was established for arthritis of the bilateral wrists on the basis that this preexisting condition was aggravated by service. Private medical records dated in April 1997 reflect that the Veteran was diagnosed with psoriatic arthritis. Although an August 2012 VA examiner opined that the Veteran’s current degenerative arthritis of the distal interphalangeal (DIP) joints of all fingers (other than the thumbs) is related to aging, not military service, the Board finds that the medical opinion is inadequate as it is based on a partially inaccurate factual background, and a remand is required for a supplemental medical opinion. The Board notes that within a few months after separation from service the Veteran was hospitalized for a variant of rheumatoid arthritis from June to August 1973. It was noted that an X-ray study of the phalanges (fingers) and wrists showed generalized demineralization, with cystic changes in the carpal bones compatible with rheumatoid arthritis. It does not appear that the August 2012 VA examiner considered this record. On remand, the examiner should be asked to consider the August 1973 VA medical record, and also provide an opinion as to whether current arthritis of the hands and fingers is related to service, or is secondary to the service-connected bilateral wrist disabilities. 3. Service connection for arthritis of the low back is remanded VA medical records reflect that the Veteran has been diagnosed with spinal stenosis and degenerative changes of the lumbar spine. The Board cannot make a fully-informed decision on the issue of service connection for arthritis of the low back because no VA examiner has opined as to whether this disability began in service. The Board notes that during a post-service VA hospitalization in August 1973, it was noted that an X-ray study of the sacroiliac joints was normal, and there were minor degenerative changes in the dorsal (thoracic) spine. This case is remanded for a VA examination and medical opinion. As the Veteran had active service for less than 90 days, service connection may not be established for arthritis on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). The matters are REMANDED for the following action: 1. Obtain the Veteran’s SSA records, including all medical records considered in determining his entitlement to disability benefits, and associate them with the file. 2. Obtain updated VA medical records of treatment or evaluation of bilateral wrist, hand and shoulder disabilities, a back disability, and sleep apnea. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of current arthritis of the low back. The examiner must opine whether it is at least as likely as not (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. 4. Schedule the Veteran for an examination of the current severity of his service-connected arthritis of the right and left wrists. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral arthritis of the wrists alone and discuss the effect of the Veteran’s bilateral wrist disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (a.) With regard to the claims of service connection for arthritis of the bilateral hands and fingers, the VA examiner is asked to review the claims file, including an August 1973 report of VA hospitalization, and provide a medical opinion regarding the Veteran’s current arthritis of the bilateral hands and fingers. The examiner should opine as to: Whether it clearly and unmistakably (undebatable) preexisted the Veteran’s service. (The Veteran was diagnosed with preexisting rheumatoid arthritis of the wrists during his service from late January to early March 1973.) If the examiner finds arthritis of the hands and/or fingers did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably NOT aggravated by service. (b.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it at least as likely as not (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. (c.) Whether arthritis of the bilateral hands and fingers is at least as likely as not (1) proximately due to service-connected arthritis of the bilateral wrists, or (2) was aggravated beyond its natural progression by service-connected disability. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. L. Wasser, Counsel