Citation Nr: 21008823 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-18 693 DATE: February 18, 2021 REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for chronic thyroiditis (Hashimoto's disease) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2000 to June 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2018 and June 2020, at which times it was remanded for further development. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Unfortunately, for reasons expressed immediately below, the Board finds that this case must be remanded again for further development. The Board regrets the delay associated with this remand but finds that this remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. Service connection for rheumatoid arthritis In June 2020, the Board remanded the Veteran’s claim for service connection for rheumatoid arthritis to obtain a new VA examination and opinion addressing the etiology of this. Specifically, the Board requested that the Veteran be accorded an examination with a rheumatologist and that the examiner opine as to whether the Veteran’s reports of symptoms during her active service were early manifestations of the later diagnosed rheumatoid arthritis. A VA examination was conducted in August 2020 by a physician assistant, rather than a rheumatologist as requested. The examination report indicated that the physician assistant consulted a rheumatologist in providing an opinion. However, the examination and opinion offered were not provided by the rheumatologist. The examiner recorded the Veteran’s statements about her symptoms of overall achiness during service and her reports of joint pain now affecting her hands, low back, hips, knees, and ankles, but indicated that it is less likely than not that her rheumatoid arthritis is related to her service. The examiner, in discussion with a rheumatologist, indicated that there was not any connection between the Veteran’s symptoms while in the military because there was no history of swelling associated with her documented in-service knee pain and no documentation of swelling in smaller joints. In offering this opinion, the examiner and the rheumatologist consulted did not appear to give any consideration to the Veteran’s contentions of overall achiness during service or to whether the Veteran’s symptoms during service were consistent with her later diagnosed rheumatoid arthritis. The Board finds that the August 2020 VA examination is inadequate and, specifically, fails to substantially comply with the Board’s prior remand directives. Stegall, 11 Vet. App. at 271. In addition to the examination being conducted by a physician assistant instead of the requested rheumatologist, the examining physician’s assistant failed to address adequately whether the Veteran’s musculoskeletal and other symptoms experienced during active service were early manifestations of her rheumatoid arthritis. Accordingly, the Board finds that a remand is necessary to ensure compliance with the Board’s prior remand directives and to obtain an adequate examination and opinion from a rheumatologist regarding the nature and etiology of the Veteran’s rheumatoid arthritis. Service connection for chronic thyroiditis (Hashimoto's disease) Also in June 2020, the Board remanded the Veteran’s claim for service connection for chronic thyroiditis to obtain a new VA examination and opinion addressing the etiology of this condition. Specifically, the Board asked that the Veteran be accorded an examination with an endocrinologist who would opine as to whether the Veteran’s reported symptoms during her active service (which included fatigue, weakness, impaired concentration, depression, and musculoskeletal pain) were early manifestations of thyroid issues that were noted in 2007 and/or the Hashimoto’s disease diagnosed in 2009. Unfortunately, the August 2020 VA examination was conducted a physician assistant, rather than by an endocrinologist as requested. The examination report indicated that the physician assistant consulted an endocrinologist in providing an opinion. Significantly, however, the examination and opinion offered were not provided by the endocrinologist. The examining physician assistant failed to consider or address the Veteran’s in-service symptoms and whether they were manifestations of the later diagnosed chronic thyroiditis. The examiner opined that there was no evidence that military service causes Hashimoto’s thyroiditis and that there is no concrete evidence linking emotional or psychological stress to Hashimoto’s thyroiditis. In providing an opinion, the examiner appeared to give no consideration to the Veteran’s contentions or her in-service symptoms of fatigue, weakness, impaired concentration, depression, and musculoskeletal pain—or to whether these symptoms were consistent with, or manifestations of, her later diagnosed thyroid disability. Thus, the Board finds that the August 2020 VA examination is inadequate and in this regard fails to comply substantially with the Board’s prior remand directives. Stegall, 11 Vet. App. at 271. In addition to the examination being conducted by a physician assistant instead of the requested endocrinologist, the examining physician assistant failed to address adequately whether the Veteran’s symptoms experienced during active service were early manifestations of her thyroid condition. Accordingly, the Board finds that a remand is necessary to ensure compliance with the Board’s prior remand directives and to obtain an adequate examination and opinion from an endocrinologist regarding the nature and etiology of the Veteran’s chronic thyroiditis. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with a rheumatologist to determine the nature, extent, and etiology of any her diagnosed rheumatoid arthritis. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran (including any testing or studies deemed necessary), the examiner should: Opine whether it is as likely as not (a 50 percent probability or greater) that any such diagnosed rheumatoid arthritis onset in the Veteran’s service or is otherwise etiologically related to such service. In expressing this opinion, the examiner should address whether the Veteran’s musculoskeletal and other symptoms experienced during her active service were early manifestations of, or otherwise consistent with, the rheumatoid arthritis diagnosed in 2009—and should address her reports of joint pain and symptoms continuing since her active service. The examiner is advised that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Also, schedule the Veteran for an appropriate VA examination with an endocrinologist to determine the nature, extent, and etiology of any thyroid disability that the Veteran may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran (including any testing or studies deemed necessary), the examiner should: a. Identify/diagnose any thyroid disability(ies) that presently exists or that has existed during the appeal period, to include chronic thyroiditis and Hashimoto’s disease. b. Opine whether it is as likely as not (a 50% probability or greater) that any such diagnosed thyroid disability onset in the Veteran’s service or is otherwise etiologically related to such service. In expressing this opinion, the examiner should address whether the Veteran’s reports of symptoms during service (including fatigue, weakness, impaired concentration, depression, and musculoskeletal pain) were early manifestations of, or otherwise consistent with, the thyroid issues noted in 2007 and the Hashimoto’s disease diagnosed in 2009—and should address her reports of continuing symptoms since her active service. The examiner is advised that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. 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 A. Goreham 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.