Citation Nr: 20046549 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-44 007 DATE: July 13, 2020 REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from January 1966 to December 1968, to include service in the Republic of Vietnam. Unfortunately, the Veteran died in November 2015 during the pendency of this appeal. The Veteran’s surviving spouse has been substituted as the Appellant in this appeal by the Agency of Original Jurisdiction (AOJ) by way of a November 2018 decision. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that this matter was previously before the Board, and in a February 2019 decision, was subsequently remanded to the AOJ for further development, to include obtaining an addendum medical opinion. Entitlement to service connection for rheumatoid arthritis is remanded. The Veteran sought service connection for his rheumatoid arthritis as he believed that this condition was directly related to his active duty service. Specifically, the Veteran contended that his rheumatoid arthritis was directly related to his verified service in the Republic of Vietnam where, he asserted, he was handling toxic chemicals, and shown throughout his service treatment records (STRs). See e.g., April 22, 2020 VA Form 646; November 2015 VA Form 9; June 2006 correspondence. Alternatively, the Veteran contended that his rheumatoid arthritis had worsened as a result of the treatment and management of his service-connected non-Hodgkin’s lymphoma. See November 2015 correspondence. The Veteran first had a VA examination for his rheumatoid arthritis in November 2013. In the February 2019 Board decision, the Board found that the November 2013 VA examiner’s opinion regarding the etiology of the Veteran’s rheumatoid arthritis was inadequate. Subsequently, the Board remanded the claim for an addendum medical opinion to adequately address the Veteran’s contention that his claimed rheumatoid arthritis is secondarily related to his service-connected non-Hodgkin’s lymphoma, and as such, was either caused or aggravated by the same. As a result, the AOJ obtained an addendum medical opinion in January 2020. The January 2020 VA examiner stated that he could not determine a baseline level of severity based upon medical evidence prior to aggravation. The VA examiner opined that regardless of an established baseline, the Veteran’s rheumatoid arthritis was not at least as likely as not aggravated beyond its natural progression by a service-connected condition. For his rationale, the VA examiner stated that there is “no documentation of rheumatoid arthritis being aggravated beyond its natural progression by non-Hodgkin’s lymphoma. No medication changes, no mention of worsening or change in symptoms of rheumatoid arthritis. The record does not support rheumatoid arthritis being aggravated beyond natural progression by medication changes for non-Hodgkin’s lymphoma.” The Board finds the January 2020 VA examiner's opinion to also be inadequate. The examiner did not provide a sufficient rationale regarding whether the Veteran's rheumatoid arthritis was aggravated by his service-connected non-Hodgkin’s lymphoma, or specifically the treatment thereof. The examiner's opinion was merely a conclusory statement that there was no basis for aggravation. Further, the examiner asserted incorrectly that there was no worsening of symptoms of the Veteran’s rheumatoid arthritis; there are numerous times throughout the record that reflect the Veteran’s contentions that the symptoms of his rheumatoid arthritis had worsened as a result of changes in medication. Accordingly, since the Board’s previous remand instructions have not been complied with, this issue must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Additionally, the Board finds that the record is lacking an opinion addressing the Veteran’s contention that his rheumatoid arthritis was directly related to his active duty military service, specifically his service in the Republic of Vietnam. On remand, an opinion regarding direct service connection should also be obtained. This matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of the Veteran's rheumatoid arthritis. The examiner should review the claims folder, and then respond to the following: a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's rheumatoid arthritis had its onset in, or is otherwise related to his period of active duty service, to include his exposure to herbicides? Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorders and service, including exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. b.) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's rheumatoid arthritis was caused by his service-connected disabilities, to include his service-connected non-Hodgkin’s lymphoma? c.) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's rheumatoid arthritis was aggravated by the service-connected disabilities, to include his service-connected non-Hodgkin’s lymphoma or the treatment thereof? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Note also that the Veteran contended that he had to change his medication regimen for rheumatoid arthritis due to his lymphoma because the prior medication for it suppressed his immune system (i.e., immunosuppressive theraphy was contraindicated due to the lymphoma and that his doctor anticipated a progression of the rheumatoid arthritis because of it). If aggravation is found, the VA examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.