Citation Nr: 1648504	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-38 165	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a disability manifested by chronic joint pain, claimed as secondary to service-connected diabetes mellitus and peripheral neuropathy of the upper and lower extremities.


REPRESENTATION

Veteran represented by:	Jan D. Dils, Attorney at Law


ATTORNEY FOR THE BOARD

Ashley Castillo, Associate Counsel





INTRODUCTION

The Veteran served on active duty from May 1968 to May 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  Jurisdiction was subsequently transferred to the Roanoke, Virginia RO.

In September 2013 and March 2016, the claim was remanded for further evidentiary development.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that compliance with remand instructions is neither optional nor discretionary.  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

In September 2013 and March 2016, the Board remanded the Veteran's service connection claim for a disability manifested by chronic joint pain to afford him a VA examination to determine whether he has a current disability affecting the joints and, if so, whether it was caused or aggravated his service-connected diabetes mellitus and peripheral neuropathy of the upper and lower extremities.

Most recently, the Veteran was afforded a VA examination in March 2016.  The VA examiner diagnosed degenerative joint disease (DJD) of the knee, feet, shoulder, hand ,and lumbar and opined that the Veteran's disabilities were less likely than not aggravated by his service-connected diabetes mellitus and peripheral neuropathy of the upper and lower extremities.  Although, the VA examiner provided a thorough rationale as to why the Veteran's disabilities are not aggravated by his service-connected diabetes mellitus and peripheral neuropathy of the upper and lower extremities the examiner did not provide a rationale as to whether the Veteran's disabilities are caused by his service-connected disabilities. 

Crucially, the examiner failed to comply with the March 2016 remand directive regarding causation.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As neither the Veteran nor the Board possess the requisite medical expertise to opine as to causation, it is imperative that the medical examiner address this question.  Jones v. Shinseki, 23 Vet.App. 382, 390 (2010) (noting that an examiner must provide an etiological opinion or explain why such an opinion cannot be provided).  Accordingly, an addendum opinion is needed to address all theories of entitlement before the Board.  See Stefl v. Nicholson, 21 Vet.App. 120 (2007) (noting that the Board must consider all raised theories of entitlement).

Accordingly, the case is REMANDED for the following action:

1.  Obtain records of treatment that the Veteran may have received at any VA health care facility since November 2016.  All such available documents should be associated with the claims file.

2.  Then, the claims folder should be referred back to the VA examiner who provided the March 2016 VA opinion concerning the Veteran's claim for service connection for disability manifested by chronic joint pain.  The VA physician should offer an addendum medical opinion based on a thorough review of the evidence of record.  A copy of this remand must be made available to the examiner for review in connection with the requested opinion.  

The VA physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it was caused by his service-connected diabetes mellitus, type II, and/ or peripheral neuropathy of the upper and lower extremities

In rendering the opinion above, the physician should consider and address the Veteran's submitted medical literature that supports a relationship between chronic joint pain and diabetes mellitus.

A comprehensive rationale must be provided for the opinions rendered.  If the VA physician cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation.

3.  Thereafter, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  Then return the case to the Board for further appellate review, if otherwise in order. 

The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court.  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).



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