Citation Nr: 0005899 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-35 568 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional (RO) Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for claimed rheumatoid arthritis. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from November 1959 to January 1962. This appeal originally came before the Board of Veterans' Appeals (Board) on appeal from a June 1996 rating decision of the RO. The veteran testified at a personal hearing at the RO in February 1997. The Board remanded the case in February and August 1998 for additional development of the evidence. REMAND The veteran seeks service connection for rheumatoid arthritis. As noted hereinabove, the Board has been remanded this matter twice for additional development. The RO was requested to schedule a VA orthopedic examination in order to determine the nature and likely etiology of the claimed rheumatoid arthritis. It was requested that the examiner express an opinion as to the likelihood that the veteran had current disability referable to what was diagnosed as rheumatoid arthritis in service. It is pertinent to repeat in this regard that, in February 1961, during service, the veteran was treated for complaints of right shoulder pain of movement and findings of fusiform swelling of both hands. It was noted at that time that the diagnosis was that of rheumatoid arthritis. The most recent VA examination was conducted in November 1999. The examiner noted that the claims file had been reviewed and that the veteran carried a diagnosis of rheumatoid arthritis. The veteran's complaints of pain were noted and the examiner indicated that there appeared to be a high functional overlay. The examiner concluded that the veteran had a history of rheumatoid arthritis. It was indicated that x-ray studies did not support his subjective symptoms and that there was no objective evidence for his complaints. The examiner, however, did not provide the requested opinion regarding whether the veteran has a current disability referable to rheumatoid arthritis due to service. It is pertinent to note that an earlier examination by VA had reported that he had bilateral hand arthritis, mostly involving the metacarpophalangeal joint and proximal interphalangeal joints and "degenerative disease" of other joints. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the Court) has held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. While the Board regrets the additional delay, the case must be remanded again for full compliance with the Board's previous instructions regarding the examination of the veteran. In addition, the Board notes that the veteran has also questioned the adequacy of the VA recent examination in a recently received statement. Since the issuance of the December 1999 supplemental statement of the case in December 1999, the appellant has submitted additional evidence, which was received at the Board in February 2000, which has not considered by the RO. This evidence includes duplicates of evidence already in the claims file and the January 1999 statement of the veteran regarding the November 1999 VA examination.. The veteran is not represented and has not waived his right to have that evidence initially considered by the RO. Any pertinent evidence submitted by the appellant which is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless this procedural right is waived by the appellant. 38 C.F.R. § 20.1304(c) (1998). Therefore, this evidence must be considered by the RO. Under the circumstances of this case, the Board finds that additional development is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should take appropriate steps to contact the veteran in order to afford him an opportunity to provide any other medical evidence referable to treatment for the claimed rheumatoid arthritis. Any obtained records should be associated with the claims folder. 2. The RO then should undertake to schedule the veteran for another VA examination in order to determine the nature and likely etiology of the claimed rheumatoid arthritis. The claims folder must be made available to the examiner for review. All indicated testing should done in this regard. As previously requested by the Board, based on his/her review of the case, the examiner should express an opinion as to medical probability that there is current joint disability related to what was diagnosed as rheumatoid arthritis noted in service, as claimed by the veteran. The examiner's opinion should reflect review of pertinent material in the claims folder and include a discussion of the factors upon which the opinion was based. 2. When the above development has been completed, the claimed should be reviewed by the RO. If the decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is further informed, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).