Citation Nr: 21005320 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-23 538 DATE: February 1, 2021 REMANDED Entitlement to service connection for right hip arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for right ankle arthritis is remanded. Entitlement to service connection for right shoulder arthritis is remanded. Entitlement to service connection for right elbow arthritis is remanded. Entitlement to service connection for right wrist arthritis is remanded. Entitlement to service connection for right hand arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1983 to July 1986. This appeal before the Board of Veterans’ Appeals (Board) arose from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2019 decision, the Board, inter alia, denied the claims on appeal. The Veteran appealed the denial of these claims to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for the Veteran and VA, vacating the Board’s denial of the claims on appeal, and remanded the matters to the Board for further proceedings consistent with the JMPR. Also, in May 2019, the Board remanded additional claims for further evidentiary development. These additional issues have not yet been returned to the Board and, thus, are not currently before the Board at this time. These issues may be the subject of a future appellate decision. Service Connection for Arthritis of the Right Hip, Right Knee, Right Ankle, Right Shoulder, Right Elbow, Right Wrist, and Right Hand In the July 2020 JMPR, the parties noted that the Veteran’s VA treatment records dated since March 2009 had not been associated with his claims file, but that various reports in the file indicated that he had received VA treatment since that time. Notably, a March 2018 rehabilitation closure statement indicated that the Veteran had received VA treatment for multiple listed problems since March 2009, including for internal derangement of the shoulder, and for degenerative joint disease, although the specific extremity or joints affected were not indicated. The closure statement additionally noted that the Veteran has received occupational therapy for arm/shoulder pain. VA is generally considered to be aware of VA-generated evidence when it is put “on notice as to its possible existence and relevance” and when such “could reasonably be expected to be a part the record.” Turner v. Shulkin, 29 Vet. App. 207, 217 (2018) (citing Bell v. Derwinski, 2 Vet. App. 611,612-13 (1992)). As VA was effectively put on notice as to the existence of these potentially relevant VA treatment records, remand is required to obtain and associate the records with the claims file. Additionally, in the July 2020 JMPR, the parties agreed that remand was warranted because the May 2019 Board decision failed to address whether the Veteran’s right-side joint pains resulted in functional impairment. In this regard, based on the absence of right joint disability findings in October 2013 VA examination reports, the Board determined in the May 2019 decision that the Veteran did not have a current disability due to claimed arthritis in any of the right-side joints, which could be attributed to active service or any incident of service. Notably, however, in Saunders v. Wilkie, 886 F.3d 1356, 1362-1364 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In the instant appeal, although the VA examiner did not specifically provide any right-side joint diagnosis in the October 2013 VA examination reports, the Board notes that the examiner did not specifically address the Veteran’s reports pertaining to joint disabilities of his right extremities. Thus, the examiner did not evaluate whether the Veteran had current pain of any right-side extremity joint that resulted in functional impairment such as to qualify for a disability. Such analysis is required in light of the Federal Circuit’s holding in Saunders. Further, correspondence associated with the Veteran’s claims file, including an August 2019 letter, indicates that the Veteran has undergone more recent evaluation for Vocational Rehabilitation and Employment (VRE) benefits. Review of the claims file reveals that VRE records dated since a December 2018 denial letter have not been associated with the claims file. As these records are also potentially highly relevant to the claims on appeal, remand is also necessary to obtain the Veteran’s recent VRE records. See 38 C.F.R. § 3.159(c). Accordingly, these matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records dated since March 2009. 2. Obtain the Veteran’s outstanding VRE records, to include records dated since December 2018. 3. After Remand directives “1” and “2,” above have been completed, arrange for the Veteran to undergo new VA examination(s) of his right hip, right knee, right ankle, right shoulder, right elbow, right wrist, and right hand. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all right hip, right knee, right ankle, right shoulder, right elbow, right wrist, and/or right hand disabilities/conditions—to include any condition of any of these right extremity joints that is manifested by pain and results in functional impairment of earning capacity—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability/condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran’s service. In addressing the above, the examiner is advised that the Veteran is competent to report having joint pain symptomatology of his right upper and lower extremities. The examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s assertions as to the nature, onset, and continuity of right extremity joint symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for VA medical examination may impact the determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.