Citation Nr: 1301068 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 07-19 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a right knee disorder, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a low back disorder, to include as secondary to a left knee disorder, or, in the alternative, as due to an undiagnosed illness. 4. Entitlement to service connection for a bilateral ankle disorder, to include as secondary to a left knee disorder, or, in the alternative, as due to an undiagnosed illness. 5. Entitlement to service connection for a bilateral wrist disorder, to include as due to an undiagnosed illness. 6. Entitlement to service connection for a bilateral elbow disorder, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1972 to July 1975 and from September 1990 to July 1991. He also had more than fifteen years of unverified, inactive service in the Army Reserves. Service in Southwest Asia is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claims. In June 2009, the Veteran presented sworn testimony during a personal hearing in Montgomery, Alabama, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims folder. In an August 2009 decision, the Board denied the Veteran's claim of entitlement to service connection for pain in the elbows and wrists. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). In May 2010, the Court partially vacated the Board's August 2009 decision as to that issue and remanded said issue to the Board for further consideration pursuant to a Joint Motion for Remand dated in May 2010. In a December 2010 letter, the Board provided the Veteran and his representative the opportunity to submit additional evidence and argument in support of the appeal. In response to the Board's letter, the Veteran's representative submitted further argument in April 2011. The Board's August 2009 decision also remanded the issues of entitlement to service connection for a low back disability, a skin disability, a bilateral ankle disability, a left knee disability and whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a right knee disability. The VA Appeals Management Center (AMC) continued the previous denials in an October 2010 statement of the case (SSOC). The Veteran's VA claims file was returned to the Board. In May 2011, the Board granted the Veteran's claim to establish service connection for a skin disorder and reopened his previously denied claim to establish service connection for a right knee disability. Also, the Board remanded the issues currently on appeal for further procedural and evidentiary development. The subsequent actions by the RO and AMC will be further discussed below. The Veteran's claims have been returned to the Board. In a June 2011 rating decision, the AMC effectuated the Board's allowance of the Veteran's claim to establish service connection for a skin disability; a 30 percent evaluation was assigned, effective from July 30, 2004. The Veteran has not expressed disagreement with the assigned evaluation or effective date, and thus, that issue is not currently before the Board. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The Veteran's claims are REMANDED to the RO via the AMC, in Washington, DC. The Veteran will be notified if further action on his part is required. REMAND Unfortunately, a remand is required concerning the Veteran's claims. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. The Veteran contends that he has disorders of his low back, knees, ankles, elbows and wrists which are the result of an undiagnosed illness due to exposure to "unknown elements" in the Gulf War during his second period of service. See a June 2007 statement from the Veteran. Additionally, the Veteran contends that his low back and bilateral ankle disorders are proximately due to or aggravated by his left knee disorder. See a May 2011 statement from the Veteran's representative. Also, as noted by the Board in the May 2011 remand, the evidence of record reflects that the Veteran's left knee disorder pre-existed his second period of service, and thus, the Veteran asserts that his pre-existing left knee disorder was aggravated beyond the normal progression of the disease during this period of service. In sum, the Veteran has asserted his claims to establish service connection under several theories of entitlement: direct service connection; secondary service connection; aggravation of a pre-existing disability under 38 C.F.R. § 3.306; and service connection due to an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Also, because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, in addition to the laws and regulations pertaining to service connection, in general, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air 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 not later than December 31, 2011. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes joint pain as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom 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. See 38 C.F.R. § 3.317(a)(2)(ii). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). "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. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or 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; and (13) menstrual disorders. See 38 C.F.R. § 3.317(b) (2012). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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. See 38 C.F.R. § 3.317(a)(4) (2012). The evidence of record reflects diagnoses of degenerative joint disease of both knees and ankles as well as degenerative disc disease of the low back. See the April 2005, November 2009 and July 2011 VA examination reports. Since diagnoses for these asserted disorders have been rendered, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, pertaining to claims for service connection as due to an undiagnosed illness, are not for application. However, these claims cannot be adjudicated at this time, as there is crucial development which must be undertaken in an attempt to afford the Veteran every possibility of substantiating his claims under the law. As noted in the Introduction, the Veteran's DD Form 214 reflects that, in addition to his two periods of active duty in the Army, he had more than 15 years of inactive service in the Army Reserves. Indeed, when the Veteran filed his claims to establish service connection in July 2004, he indicated that he would receive retirement pay from the Army Reserves upon reaching 62 years of age. See the Veteran's July 2004 claim. "The term 'active military, naval, or air service' includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). The term "active duty for training" includes, "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)(A); 38 C.F.R. § 3.6(c)(1). The term "inactive duty training" includes, "duty (other than full-time duty) prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law" or "special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A),(B); 38 C.F.R. §3.6(d)(1),(2). ACDUTRA includes, "in the case of members of the Army National Guard or Air National Guard of any State, full-time duty under" certain sections of title 32, United States Code, including section 502. 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c)(3). INACDUTRA includes, "[i]n the case of members of the Army National Guard or Air National Guard of any State . . . duty (other than full-time duty) under" certain sections of title 32, United States Code, including section 502. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d)(3). The Board notes that the dates and nature of the Veteran's service in the Army Reserve are unclear. In particular, the record does not document his periods of ACDUTRA and/or INACDUTRA. Therefore, the RO/AMC should make an attempt to verify the nature and dates of the Veteran's service in the Army Reserves. To that end, the Board notes that the Veteran's complete personnel records pertaining to his service in the Army Reserves are not associated with the claims file. Thus, the RO/AMC should attempt to obtain and associate with the claims file the Veteran's complete service personnel records pertaining to his service in the Army Reserves. In light of above, it appears that the prior VA examinations of record were undertaken without benefit of the full record, to specifically include the Veteran's dates of ACDUTRA and INACDUTRA during his time in the Army Reserves. As noted above, this is crucial in light of the evidence showing that the Veteran may have injured his left knee between his periods of active duty, and possibly during his service in the Army Reserves. See an April 1990 private treatment record. Concerning the Veteran's claims to establish service connection for disorders of the bilateral wrists and elbows, diagnoses have not been rendered which explain the Veteran's asserted symptomatology. As such, the provisions of the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, pertaining to claims for service connection as due to an undiagnosed illness, are for application. After review of the claims file, the Board concludes that the Veteran must be afforded another VA examination in connection with these claims because the medical evidence of record, to include the April 2005, October 2009 and July 2011 VA examination reports, does not address the Veteran's claims under the theory of an undiagnosed illness, to include medically unexplained chronic multi-symptom illnesses under 38 C.F.R. § 3.317(a)(2). In light of above, the Board concludes that the July 2011 VA examination is inadequate for the purpose of adjudicating the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board concludes that the Veteran must be provided an appropriate and adequate VA examination to address these matters. Id. The Board observes that the most recent VA outpatient treatment records associated with the Veteran's VA claims file are dated in January 2009. As this case is being remanded for other matters, the Board finds that the RO/AMC should also obtain updated VA treatment records. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 1. The RO/AMC must obtain updated VA records dated from January 2009 to the present. 2. The RO/AMC should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's Reserve unit, and any other appropriate location, to request the complete service personnel records of the Veteran. The RO/AMC should also request verification of the dates the Veteran served in United States Army Reserves to include the dates for each period of active duty for training and inactive duty training that he attended as well as all periods of active duty service. The RO/AMC should prepare a summary of such dates. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken. All efforts to obtain these records should be memorialized in the Veteran's VA claims file. 3. THEREAFTER, the RO/AMC must afford the Veteran an appropriate VA examination to determine the nature and etiology of any identified disorders relating to the Veteran's knees, wrists, elbows, ankles and/or low back. All necessary testing, to include x-ray testing of the Veteran's knees, elbows, ankles, wrists and low back as well as an MRI of the Veteran's low back must be completed. The Veteran's complete VA claims file must be made available to the examiner in connection with the examination, and the examination report must reflect that the claims file has been reviewed by the examiner. After all necessary testing is completed as well as a physical examination of the Veteran and a complete review of the VA claims file, the examiner must address the following: a. Identify any left knee disorder(s) present. b. For each disorder identified in part (a), provide a date of onset of the disease and/or date of the initial injury. c. IF the evidence reflects that a left knee disorder pre-existed any period of active duty, provide an opinion concerning whether such was aggravated during active duty beyond the normal progression of the disease. d. IF the evidence does not reflect that a left knee disorder pre-existed a period of active duty, provide an opinion concerning whether such is the result of any period of the Veteran's service. e. Identify any right knee disorder(s) present. f. For each disorder identified in part (e), provide a date of onset of the disease and/or date of the initial injury. g. For each disorder identified in part (e), provide an opinion concerning whether such is the result of any period of the Veteran's service. h. Identify any disorder(s) of either ankle. i. For each disorder identified in part (h), provide a date of onset of the disease and/or date of the initial injury/injuries. j. For each disorder identified in part (h), provide an opinion concerning whether such is the result of any period of the Veteran's service. k. For each disorder identified in part (h), provide an opinion concerning whether such is proximately due to the Veteran's left knee disorder. l. For each disorder identified in part (h), provide an opinion concerning whether such is aggravated by the Veteran's left knee disorder. m. Identify any disorder(s) of the Veteran's low back. n. For each disorder identified in part (l), provide a date of onset of the disease and/or date of the initial injury. o. For each disorder identified in part (l), provide an opinion concerning whether such is the result of any period of the Veteran's service. p. For each disorder identified in part (l), provide an opinion concerning whether such is proximately due to the Veteran's left knee disorder. q. For each disorder identified in part (l), provide an opinion concerning whether such is aggravated by the Veteran's left knee disorder. r. Identify any disorder(s) of either elbow. s. For each disorder identified in part (r), provide a date of onset of the disease and/or date of the initial injury/injuries. t. For each disorder identified in part (r), provide an opinion concerning whether such is the result of any period of the Veteran's service. u. IF no elbow disorder is diagnosed in part (r), state whether the Veteran's reported symptoms pertaining to his elbows are manifestations of a chronic multisymptom illness as per 38 C.F.R. § 3.317(a)(2). v. Identify any disorder(s) of either wrist. w. For each disorder identified in part (v), provide a date of onset of the disease and/or date of the initial injury/injuries. x. For each disorder identified in part (v), provide an opinion concerning whether such is the result of any period of the Veteran's service. y. IF no wrist disorder is diagnosed in part (v), state whether the Veteran's reported symptoms pertaining to his wrists are manifestations of a chronic multisymptom illness as per 38 C.F.R. § 3.317(a)(2). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to the examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If any benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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. 2002). _________________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).