Citation Nr: 21074925 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-25 953 DATE: December 16, 2021 REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for osteoarthritis is remanded. Entitlement to service connection for psoriatic arthritis (also claimed as HLA-B27 arthritis) is remanded. REASONS FOR REMAND The Veteran had active service from June 1978 to June 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied entitlement to service connection for rheumatoid arthritis, osteoarthritis, and psoriatic arthritis in June 2019. The Veteran appealed these decisions to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 memorandum decision, the Court vacated the denials of service connection for rheumatoid arthritis, osteoarthritis, and psoriatic arthritis, and remanded the issues back to the Board. In July 2021, the Board remanded this matter for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to service connection for rheumatoid arthritis is remanded. 2. Entitlement to service connection for osteoarthritis is remanded. 3. Entitlement to service connection for psoriatic arthritis (also claimed as HLA-B27 arthritis) is remanded. The Veteran contends his rheumatoid arthritis, osteoarthritis, and psoriatic arthritis also claimed as HLA-B27 arthritis) are related to active service. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran's spine/back disabilities. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In September 2021, VA secured an addendum medical opinion regarding the Veteran's claims. The examiner indicated that the Veteran did not have a diagnosis of psoriatic arthritis because it was not listed as one of the conditions, within the March 2021 outpatient notes. The examiner included the prior examiner's opinion that stated that the Veteran's osteoarthritis and seropositive rheumatoid arthritis were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness to include the Veteran's complaint of swollen and/or painful joints and shoulder pain on the separation examination during service. The examiner explained that there was no objective evidence to indicate a relationship between the Veteran's complaints of swollen and or painful joints and shoulder pain during the Veteran's separation examination and his current osteoarthritis and seropositive rheumatoid arthritis. The examiner stated that, "swollen and/or painful joints and shoulder pain are nonspecific signs/symptoms which are not pathognomonic for osteoarthritis and/or seropositive rheumatoid arthritis." The examiner again cited to it taking the 28 years to obtain a diagnosis for the Veteran's arthritis. The September 2021 examiner was unclear why a remand was necessary because the Veteran did not have a diagnosis of psoriasis and/or psoriatic arthritis. The examiner stated that the rash was not pertinent because there was no current diagnosis. The examiner did however indicate that the eczematous rash that was diagnosed during service is not the "same as and neither does it cause or progress to psoriasis." However, the examiner did not reconcile the fact that the psoriasis and/or psoriatic arthritis condition is listed within the Veteran's medical treatment records after service. The examiner indicated that the swollen or painful joints marked on the separation report was defined as "subdeltoid tenderness periodically by the provider." The examiner stated that this is a very "nonspecific symptom which is certainly not pathognomonic for rheumatoid or osteoarthritis arthritis, and therefore was not diagnosed as such by the provider." Then the examiner explained that it would not take until 2010 for the rheumatoid arthritis to manifest. The examiner also explained that the Veteran would not have osteoarthritis at twenty-two, as age is the major risk factor. The examiner then copied and pasted the causes and risk factors associated with the conditions from Mayo Clinic online. While the examiner did specifically address the Veteran's reports of generalized joint pain and shoulder pain at separation, ultimately the examiner predominantly based the opinion on the absence of medical evidence of any arthritic disability until 2010, without explaining why such a gap was pertinent to the overall conclusion that the disabilities were not related to service. Dalton v. Peake, 21 Vet. App. 23 (2007). The examiner did not address the Veteran's lay testimony such as he had back pain at the age of 30, which was 8 years after service. The Veteran also contends that he had pain prior to being diagnosed in 2010, but it was not diagnosed. As the opinion is based largely upon the absence of records alone, the Board finds that a remand is necessary for an addendum opinion concerning the etiology of the Veteran's claimed arthritic disabilities. The examiner explained that some of the Veteran's symptoms would not be indicative of arthritis, but the examiner did not address why the Veteran's description of ongoing pain would not be indicative of arthritis since no diagnostic testing (x-rays) were performed. The examiner mentioned that the Veteran would not have osteoarthritis at the age of 22 but did not discuss if there were any underlying issues that would allow for a delayed onset of osteoarthritis. In essence, while the Board acknowledges that examiner has indicated that osteoarthrosis is less likely to occur in someone at the age of 22, the examiner did not address the Veteran's lay testimony, or explain a reason why the Veteran's swollen joints were not a symptom beyond it being "non-specific." The only reason given for rheumatoid arthritis was that it would not take until 2010 to manifest, but the examiner did not address the Veteran's statements, or explain why the condition could not be present in a 22-year-old, beyond that it normally is not. Thus, a remand is necessary prior to adjudicating this matter. The matter is REMANDED for the following action: 1. Obtain addendum medical opinions from an appropriate medical professional other than the VA examiner that provided the September 2021 VA examination who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. (a.) Is it at least as likely as not (at least a 50 percent possibility) that the rheumatoid arthritis is causally related to the Veteran's active service? (b.) Is it at least as likely as not (at least a 50 percent possibility) that the osteoarthritis is causally related to the Veteran's active service? (c.) Is it at least as likely as not (at least a 50 percent possibility) that the psoriatic arthritis is causally related to the Veteran's active service? The examiner must note and address the Veteran's relevant lay testimony including but not limited to the following: i. The Veteran stated he had back pain at the age of 30, which was 8 years after service. ii. The Veteran also contends that he had pain prior to being diagnosed in 2010. iii. Explain why the Veteran's swollen and painful joints are not a symptom of arthritis, beyond the examiner's statements that the symptoms are non-specific. iv. The Veteran's contention that he had symptoms even if they were not supported by diagnostic testing. v. Reconcile the fact that the Veteran's treatment records mention the Veteran receiving treatment for psoriasis and/or psoriatic arthritis, and thus the Veteran contends he has a diagnosis within the appeal period. vi. The Veteran contends that, examiners have relied, at least in part on a notation that the Veteran's extremities were normal at separation and the length of time between service and diagnosis, which could not be done from a physical examination. vii. The Veteran contends that, examiners have incorrectly relied, upon determination that swollen and painful joints are not pathognomonic for arthritis. viii. The only reason given for determining that service connection for rheumatoid arthritis was that it would not take until 2010 to manifest. ix. If the Veteran would not have osteoarthritis at the age of 22 were there any underlying issues that would allow for a delayed onset of osteoarthritis? 2. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 3. After completing the above, and conducting any further development deemed necessary, readjudicate the claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.