Citation Nr: 1807338 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-29 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for symptoms to include polyarthralgia and fatigue due to an undiagnosed illness associated with service in the Southwest Asia theater of operations during the Persian Gulf War. 2. Entitlement to service connection for disability resulting from exposure to depleted uranium. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to June 1991 with service in the Southwest Asia theater of operations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). When the Board fails to ensure substantial compliance with a remand order, it errs as a matter of law. See Stegall v. West, 11 Vet. App. 268 (1998). A May 2017 remand order required VA to provide the Veteran with an examination and prepare a report with answers to specific questions. The report was required to discuss the significance, if any, of remarks from examinations in May 2009 and September 2015. If the examiner diagnosed a condition other than chronic fatigue syndrome, fibromyalgia, or gastrointestinal disorder, then the examiner was ordered to offer an opinion as to whether it is at least as likely as not that a medical link exists between that condition and an in-service occurrence. An August 2017 VA examination report diagnosed the Veteran's joint pain as arthritis. The examiner did not address the comments from the May 2009 or September 2015 examination reports. The examiner did not offer an opinion as to whether it is at least as likely as not that a medical link exists between the Veteran's arthritis and an in-service occurrence. The August 2017 examination report is therefore inadequate and fails to comply with the May 2017 remand order. A remand is warranted to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's file to the examiner who performed the August 2017 examination, if that examiner is available, for an addendum opinion. If that examiner is unavailable, provide the Veteran's file to an appropriate medical professional for an addendum opinion. The examiner should review the case file, including this remand, and indicate completion of this review in their report. The addendum opinion should address the following: a. What is the significance, if any, of the May 2009 VA opinion indicating that the Veteran had polyarthralgia of an unknown etiology and the September 2015 VA opinion indicating that the Veteran had fatigue possibly related to an undiagnosed illness? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed arthritis of the back and neck was caused or aggravated by his active service? The report should include reasons and bases supporting each opinion. 2. Readjudicate the appeal. 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). _________________________________________________ R. FEINBERG 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).