Citation Nr: 1237245	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  05-03 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for disability manifested by joint pain in the bilateral ankles.

2.  Entitlement to service connection for disability manifested by joint pain in the bilateral knees.

3.  Entitlement to service connection for disability manifested by joint pain in the bilateral wrists.

4.  Entitlement to service connection for disability manifested by joint pain in the bilateral elbows.

5.  Entitlement to service connection for disability manifested by joint pain in the bilateral hips.

6.  Entitlement to service connection for disability manifested by joint pain in the bilateral shoulders.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The Veteran had active service from January 1986 to January 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was previously before the Board in December 2007, in November 2009, and in January 2012, when the issues remaining on appeal were remanded for additional development.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.

The issues remaining on appeal were previously characterized as the single issue of entitlement to service connection for unexplained joint pains.  As discussed below, the Board finds that the evidence presents distinct factual pictures pertaining to different particular sets of joints in this case, and service connection is being awarded for some joints but not others at this time.  To more adequately organize the issues on appeal and provide appropriate specificity in the appellate review with regard to particular joints, the Board has recharacterized the issues on appeal as reflected above.

The issues of entitlement to service connection for disability manifested by joint pain in the bilateral hips and joint pain in the bilateral shoulders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran has a disability manifested by joint pain of the bilateral ankles which has not been medically attributed to a known clinical diagnosis.

2.  The Veteran has a disability manifested by joint pain of the bilateral knees which has not been medically attributed to a known clinical diagnosis.

3.  The Veteran has a disability manifested by joint pain of the bilateral wrists which has not been medically attributed to a known clinical diagnosis.

4.  The Veteran has a disability manifested by joint pain of the bilateral elbows which has not been medically attributed to a known clinical diagnosis.


CONCLUSIONS OF LAW

1.  The criteria for service connection for disability manifested by joint pain of the bilateral ankles are met.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011).

2.  The criteria for service connection for disability manifested by joint pain of the bilateral knees are met.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011).

3.  The criteria for service connection for disability manifested by joint pain of the bilateral wrists are met.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011).

4.  The criteria for service connection for disability manifested by joint pain of the bilateral elbows are met.  38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The issues before the Board involve claims of entitlement to service connection.  Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1); 71 FR No. 242, pp. 75669-75671 (December 18, 2006).  Consideration of a Veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis.

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a).

The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a).

Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a).

A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.  38 C.F.R. § 3.317(a).

A disability referred to in this section shall be considered service connected for purposes of all laws of the United States.  38 C.F.R. § 3.317(a).

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue, (2) Signs or symptoms involving skin, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurologic signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the respiratory system (upper or lower), (9) Sleep disturbances, (10) Gastrointestinal signs or symptoms, (11) Cardiovascular signs or symptoms, (12) Abnormal weight loss, (13) Menstrual disorders.  38 C.F.R. § 3.317(b).

Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c).

The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.  The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(d).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  "A Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that he experiences pain in joints throughout his body due to an undiagnosed illness associated with his service in the Persian Gulf.

Prior to the Board's November 2009 remand, the Veteran was afforded a VA examination in March 2008 to address this claim.  The March 2008 VA examination report clearly documents that the Veteran's joint symptoms featured "Arthralgia ... symptoms involving right shoulder joint, bilateral elbow joints, bilateral wrist joints, bilateral hip joints, bilateral knee joints, and bilateral ankle joints."  The March 2008 VA examination report also shows a diagnosis of chronic impingement syndrome of the left shoulder joint.

The Board's November 2009 remand of this issue explained that the March 2008 VA examination report was inadequate to permit appropriate informed appellate review.  The report did not clearly resolve the question of whether there was objective evidence of any pertinent signs and symptoms of the claimed joint pain and whether or not such signs and symptoms could be attributed to known clinical diagnoses.  Additionally, the Board found that the evidence showed a diagnosis for the left shoulder complaints but did not address whether this diagnosis or any other known clinical diagnosis was at least as likely as not related to the Veteran's military service on a direct basis.

The Board's November 2009 remand directed that new development clarify this information and address these matters with the benefit of information from examining the Veteran and reviewing the contents of the claims-file.  After the Board's November 2009 remand, the RO/AMC added to the claims-file copies of a February 2009 addendum to the March 2008 VA examination report.  The addendum to the March 2008 VA examination report adds discussion attempting to address the etiology of the left shoulder diagnosis and also largely repeats the prior unclear characterization of the Veteran's arthralgia in other joints without making clear whether there were objective signs corroborating the Veteran's claimed symptoms for any joint for which a diagnosis or pathophysiology could not be identified.

The Veteran was afforded a new VA examination on this matter in August 2010; the Board has found that this examination report is also inadequate for the purposes of appellate review in this case.  The August 2010 VA examination report provides a number of pertinent new diagnoses in this case, and significantly differs from the March 2008 VA examination report in its diagnostic findings with regard to specific joints.  Unfortunately, as noted repeatedly in the original August 2010 VA examination report, the VA examiner did not have the benefit of review of the claims file in connection with the examination.  The August 2010 VA examination report diagnosed degenerative joint disease of the left shoulder and bilateral hips.  The August 2010 VA examination report also diagnosed "strain" of the right shoulder, the bilateral knees, and the bilateral ankles.  The August 2010 VA examination report makes essentially no discussion of the Veteran's complaints involving his elbows and wrists, which had been significant to the Veteran's claim and had been the subjects of pertinent findings in the March 2008 VA examination report.  No explanation for this discrepancy is apparent and none of the questions regarding objective signs and symptoms in these joints are addressed by the August 2010 VA examination report.

The August 2010 VA examination report offers a brief etiology opinion for the joint diagnoses offered, but these opinions were originally formed and presented without the benefit of review of the claims file.  The August 2010 VA examiner concluded that the Veteran's joint complaints (or at least those pertaining to joints addressed in the August 2010 VA examination report) were unlikely related to military service because the symptoms reportedly had their first onset after the conclusion of such service.  However, the examiner never discusses that the claims-file contains service treatment records documenting that the Veteran suffered a potentially significant painful left knee ligament strain injury in June 1991 during the final year of the Veteran's military service; this documented left knee injury late in the Veteran's military service plainly must be addressed in any etiology analysis of the Veteran's left knee joint pain, and such an injury may reasonably be otherwise relevant to analysis of the Veteran's claim.

The August 2010 VA examiner was later furnished a copy of the claims-file and authored a November 2010 addendum which states, in its entirety: "C-file received and reviewed.  No further changed [sic] to the original 8-13-10 C&P report or the previous addendum."  Despite the indicated review of the claims-file, the August 2010 VA examiner continues to make no mention of the documented in-service injury.  Furthermore, the August 2010 VA examiner continues to make no acknowledgment or discussion of the significant discrepancies between the diagnostic findings from the August 2010 VA examination report and the diagnostic findings noted in the prior March 2008 VA examination report; the August 2010 VA examiner never presents any discussion of the Veteran's complaints or the past diagnostic findings concerning his elbows and wrists that are a part of this appeal.  

In January 2012, the Board again remanded this matter.  The Board explained that the August 2010 VA examination report, even as amended by addenda, fails to adequately address all the necessary aspects of the Veteran's complex claim on appeal, fails to clarify whether the Veteran has any objective signs or diagnosis of disability of the elbows and wrists, and fails to comply with the Board's remand directive that the examiner discuss the etiology of all diagnosed disabilities with discussion of all relevant service and post-service medical records (such as the documented in-service injury and the March 2008 VA examination report's pertinent findings).

The Board's January 2012 remand directed that a new VA examination be conducted on this issue.  A February 2012 VA examination report is now of record.  The February 2012 VA examination report shows a diagnosis of degenerative joint disease for the hips and shoulders.  The February 2012 VA examination report lists a diagnosis of "arthralgia" for every claimed joint except for the hips and shoulders; the examiner specifically noted "arthralgia" for the bilateral ankles, knees, wrists, and elbows.  As arthralgia literally means "joint pain," the use of this term as the "diagnosis" for every pertinent joint except for the hips and shoulders suggests a medical findings of joint pain on some basis.  Although the examiner checked boxes to indicate that there was no painful motion of these joints, the Veteran's claim does not depend upon a finding of pain associated with motion of the joints.

The February 2012 VA examination report specifically states that the examiner was unable to determine any etiology for the arthralgias of the bilateral ankles, knees, wrists, and elbows; the examiner expressly noted evidence of decreased range of motion of the wrists and knees.  The examiner stated that tests for rheumatoid arthritis were negative, and there was no diagnosis of degenerative joint disease for the joints with arthralgia (the ankles, knees, wrists, and elbows).  Significantly, the examiner stated that "[t]hese joints have no known diagnosis at this time."  The Board reads this statement as indicating that the joints for which "arthralgia" was the only listed "diagnosis" have, in fact, no known clinical pathological diagnosis.  It is not entirely clear why the examiner did not include the Veteran's bilateral ankles in the "Remarks" section discussing the absence of any known diagnosis, but the Board finds that this was a likely error of oversight rather than any indication that there was otherwise some known diagnosis for the ankles.  The Board notes that the only "diagnosis" listed for the ankles anywhere in the report is "arthralgia."  Reasonably reading the examiner's key "Remarks" in the context of the whole of the examination report, the Board can find no apparent basis for supposing that the examiner intended to exclude the Veteran's bilateral ankle arthralgias from the other joint arthralgias for which there was "no known diagnosis."

The Board finds that the February 2012 VA examination report essentially presents evidence of physician-noted joint pain ("arthralgias") in the ankles, knees, wrist, and elbows which cannot be attributed to any known diagnosis.  The report further shows associated objective limitation of motion of the wrists and knees in particular.  The Board finds that the February 2012 VA examination report indicates objective evidence of joint pain (and, for the wrists and knees, also limited motion) that cannot be attributed to any known medical diagnosis.  There is no clear medical diagnosis of the disability responsible for these signs and symptoms.

With regard to the Veteran's bilateral ankles, two VA examiners have found only "arthralgia" of these joints while the other pertinent VA examiner diagnosed "strain" without significant explanation indicating a chronic pathophysiology.  Resolving reasonable doubt in the Veteran's favor, and considering the number of VA examinations that have already been conducted, the Board believes the evidence of record sufficiently shows that the Veteran has medically observed joint pain of the ankles that cannot be attributed to any known medical diagnosis.

With regard to the Veteran's bilateral knees, two VA examiners have found only "arthralgia" of these joints while the other pertinent VA examiner diagnosed "strain" without significant explanation indicating a chronic pathology.  The most recent VA examination report further indicates that the Veteran has limitation of motion of the knees that is not attributed to any known diagnosis.  Resolving reasonable doubt in the Veteran's favor, and considering the number of VA examinations that have already been conducted, the Board believes the evidence of record sufficiently shows that the Veteran has medically observed joint pain of the knees that cannot be attributed to any known medical diagnosis.

With regard to the Veteran's bilateral wrists, two VA examiners have found only "arthralgia" of these joints while the other pertinent VA joints examiner did not address the wrists.  The most recent VA examination report further indicates that the Veteran has limitation of motion of the wrists that is not attributed to any known diagnosis.  Resolving reasonable doubt in the Veteran's favor, and considering the number of VA examinations that have already been conducted, the Board believes the evidence of record sufficiently shows that the Veteran has medically observed joint pain of the wrists that cannot be attributed to any known medical diagnosis.

With regard to the Veteran's bilateral elbows, two VA examiners have found only "arthralgia" of these joints while the other pertinent VA joints examiner did not address the elbows.  The most recent VA examination report further indicates that the Veteran's elbow pain is not attributed to any known diagnosis.  Resolving reasonable doubt in the Veteran's favor, and considering the number of VA examinations that have already been conducted, the Board believes the evidence of record sufficiently shows that the Veteran has medically observed joint pain of the elbows that cannot be attributed to any known medical diagnosis.

It therefore appears that the Veteran's joint pains of the bilateral ankles, knees, wrists, and elbows are due to an undiagnosed illness as contemplated under the special provisions of Persian Gulf War veterans.  As such, service connection is warranted for the joint pain of the bilateral ankles, knees, wrists, and elbows.

In contrast to the ankles, knees, wrists, and elbows, the examiner specifically noted that there were X-ray findings confirming diagnosed degenerative joint disease of the hips and the shoulders, and earlier medical evidence also shows medical diagnoses pertinent to this set of joints.  There remains additional development to be completed as the Board is at this time remanding the claims of service connection for these joints (addressed in the remand section, below), but the Board notes that it cannot include the bilateral hips and shoulders in the current grant of service connection for various joints on the basis of an undiagnosed illness theory.

In light of the above, the Board concludes that service connection is warranted for disability manifested by joint pain in the bilateral ankles, bilateral knees, bilateral wrists, and bilateral elbows under an undiagnosed illness theory.

In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board notes that the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date in February 2011.  At any rate, the Veteran will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection.


ORDER

Entitlement to service connection for disability manifested by joint pain in the bilateral ankles is warranted.  To this extent, the appeal is granted.

Entitlement to service connection for disability manifested by joint pain in the bilateral knees is warranted.  To this extent, the appeal is granted.

Entitlement to service connection for disability manifested by joint pain in the bilateral wrists is warranted.  To this extent, the appeal is granted.

Entitlement to service connection for disability manifested by joint pain in the bilateral elbows is warranted.  To this extent, the appeal is granted.


REMAND

The Veteran is also seeking service connection for disability manifested by joint pain of the bilateral hips and bilateral shoulders.

The February 2012 VA examination report addressed the etiology of the diagnosed disabilities of the hips and shoulders, but the opinion offered included reliance upon a rationale that found "no indication ... that he has any service connected conditions that would lead to development of DJD of the shoulders or hips."  As this Board decision grants service connection for disability of several joints, including joints proximate to the hips and proximate to the shoulders, the factual premise of the VA examiner's analysis is no longer clearly intact.

The Board's grant of service connection for disability of the bilateral ankles, knees, wrists, and elbows raises possible secondary service connection theories regarding the issues of service connection for disability of the bilateral hips and shoulders.  All of the claims currently on appeal were raised together as part of the Veteran's single claim of entitlement to service connection for a disability manifested by joint pain.  The Board is at this time granting service connection for portions of that claim, which the Board has separated into competent issues.  Due to the intertwined nature of the issues on appeal, the Board believes that the appeal should include consideration of whether the hip and shoulder disabilities may be caused or aggravated by the newly service-connected joint disabilities (such as through alterations of gait or otherwise through favoring of joints due to now service-connected disability), as all the joint claims were raised together in what was originally a single issue.  Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

Further development in this regard is necessary to fully assist the Veteran.

Accordingly, the case is REMANDED for the following action:

1.  The RO should schedule the Veteran for another VA examination with an appropriate specialist to determine the nature, extent, and etiology of his disabilities of the bilateral hips and bilateral shoulders.  The claims file must be provided to the examiner for review.  After reviewing the claims file and examining the Veteran (including eliciting a detailed history), the examiner should respond to the following:

a) Is it at least as likely as not (i.e., a 50% or higher degree of probability) that any diagnosed disability of either hip or either shoulder was manifested during or is causally related to his active duty service or any incident therein?  If the answer to this question is affirmative, please specifically identify each diagnosis that is causally related to service.

b) Is it at least as likely as not (i.e., a 50% or higher degree of probability) that any diagnosed disability of either hip or either shoulder is proximately due to or caused by the now service-connected disabilities of the Veteran's bilateral ankles, knees, wrists, and elbows?  If the answer to this question is affirmative, please specifically identify each diagnosis that is causally related to a service-connected disability.

c) Is it at least as likely as not (i.e., a 50% or higher degree of probability) that any diagnosed disability of either hip or either shoulder has been permanently aggravated by the now service-connected disabilities of the Veteran's bilateral ankles, knees, wrists, and elbows?  If the answer to this question is affirmative, please specifically identify each diagnosis that has been aggravated by a service-connected disability.

The examiner must explain the rationale for all opinions.

2.  In the interest of avoiding further remand, the RO should review the opinion to ensure that it is responsive to all of the posed questions.

3.  After completion of the above and any further development deemed necessary by the RO, the issues remaining on appeal should be readjudicated.  If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate review.

The appellant 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).


______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs