Citation Nr: 1315560	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  07-34 812A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 

2. Entitlement to service connection for a bilateral hip disability, claimed as joint pain, to include as due to an undiagnosed illness. 

3. Entitlement to service connection for a right ankle disability, claimed as joint pain, to include as due to an undiagnosed illness.

4. Entitlement to service connection for a left right ankle disability, claimed as joint pain, to include as due to an undiagnosed illness.

5. Entitlement to service connection for a bilateral wrist disability, claimed as joint pain, to include as due to an undiagnosed illness.

6. Entitlement to service connection for a bilateral elbow disability, claimed as joint pain, to include as due to an undiagnosed illness.

REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran served on active duty from October 1988 to September 1997.  Service in Southwest Asia and receipt of the Combat Action Ribbon are indicated by the evidence of record. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 

In April 2012, the Board remanded the Veteran's claim for additional development of the record.  The case is once again before the Board. 

Based on evidence associated with the claims file following the April 2012 remand, the Veteran's claim of entitlement to service connection for joint pain has been recharacterized into five separate issues as listed on the title page. 

The issues of entitlement to service connection for a right ankle disability, a bilateral wrist disability, and a bilateral elbow disability, claimed as joint pain, to include as due to an undiagnosed illness, 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 currently demonstrated headache disability is shown as likely as not to have had its clinical onset during the Veteran's period of active service.

2. The Veteran's bilateral hip and right ankle pain are not attributable to a disease or injury that incurred in service, and there are no objective indications of a qualifying chronic disability underlying such symptoms.


CONCLUSIONS OF LAW

1. By extending the benefit of the doubt to the Veteran, his diagnosed headache disability is due to a disease or injury that was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

2. A bilateral hip disability was not incurred in or aggravated by service, and is not due to an undiagnosed illness as a result of service in Southwest Asia during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).

3. A right ankle disability was not incurred in or aggravated by service, and is not due to an undiagnosed illness as a result of service in Southwest Asia during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of 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 claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess, supra.

In the present case, VA issued a VCAA notice letter to the Veteran in May 2006.  This letter informed the Veteran of what evidence was required to substantiate his service connection claims and of his and VA's respective duties for obtaining evidence.  

The May 2006 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess.  

Thus, the record indicates that the Veteran received appropriate notice pursuant to VCAA.

The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  

The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

In this capacity, as noted above, the Board remanded the case to the AMC in order to gather additional treatment records and schedule the Veteran for a VA examination. 

The record reveals that the AMC requested the Veteran identify or submit any additional records he might have in April 2012.  While additional VA treatment records were obtained and associated with the Veteran's electronic claims folder, the Veteran did not identify or submit any private treatment records.  Additionally, the Veteran was provided with the requested VA examination in May 2012. 

The Board's remand instructions have been fully complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) [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]; see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) [although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required]. 

Further, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims.  In particular, the record contains the Veteran's service treatment records, VA treatment records and a VA Gulf War examination report. 

The Veteran was provided with a VA examination in May 2012.  The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008).  The Board therefore concludes that the examination is adequate for adjudication purposes.  See 38 C.F.R. § 4.2 (2012).  

The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. 

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  He has declined to exercise his option of a personal hearing.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.  

II.  Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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 or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet.App. 1, 8 (1999). 

Additionally, service connection for chronic, undiagnosed illness (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C.A. § 1117 (West 2002) and 38 C.F.R. § 3.317 (2012).

Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces 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 (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.  To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C.A. § 1117, 38 C.F.R. § 3.317 (2012).

Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b).

Compensation shall not be paid under this section, however, 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).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).

III.  Analysis 

In April 2012, the Board observed that the Veteran's complaints of headaches and joint pain were precisely the type of symptoms described in the regulations governing undiagnosed illnesses.  As the Veteran served in Southwest Asia, his appeal was remanded in order to afford him a VA Gulf War examination. 

While cognizant that the Veteran served in the Southwest Asia and has been awarded the Combat Action Ribbon, the record does not indicate, and the Veteran has not alleged, that he has a residual injury or disease as a result of combat.  As a result, the combat presumption is not for application in this case.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).  

The Board also notes that the Veteran has not been diagnosed with a chronic disease within the meaning of the general compensation law. 38 U.S.C.A. § 1101; 38 C.F.R. § 38 C.F.R. § 3.303(b), 3.309.  (Gulf War cases have a different set of standards.)

	A. Headaches

The Veteran is seeking service connection for headaches which he contends began while he was on active duty.  See, e.g., the May 2012 VA examination report.

With respect to the first Shedden element, evidence of a current disability, the Veteran was diagnosed with a headache disability during the May 2012 VA examination.  A current disability has therefore been established.  

The Board pauses to note that since the Veteran has been diagnosed with a headache disability, any Persian Gulf theory of entitlement is supportable since headaches are specifically listed.  See 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2012).

While the Veteran's September 1997 separation examination revealed that he had experienced a concussion prior to service, his entrance examination did not reveal any neurological defects and the Veteran did not identify a preexisting headache disability.  In fact, a neurological examination conducted at the time of his enlistment was normal. As a result, the Veteran is presumed to have been in sound condition when accepted for service. 

During service, the Veteran complained of headaches while receiving medical treatment on several occasions.  See, e.g., an August 1997 treatment record.  While he denied experiencing "frequent or severe headaches" during his separation examination, the record clearly indicates that the Veteran had headaches during service.  

During the May 2012 VA examination, the Veteran reported that he began having headaches while on active duty and that he has continued to experience headaches to the present.  However, the VA examiner did not provide an opinion as to whether the Veteran's current headache disability is related to the symptoms he experienced during service. 

As alluded to above, headaches are not a chronic disability as defined by 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.303(b), 3.309.  Therefore service connection may not be granted based on continuity of symptomatology.  

The Board notes, however, that the Veteran is competent to report on that which comes to him through his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In this case, headaches that first developed in service are something on which the Veteran may, as a lay person, competently address.

As noted, the Veteran has reported that he began experiencing headaches during service which have continued to the present and he is competent to report symptoms of headaches and the date of onset and duration.  Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  His complaints have been diagnosed by health care professionals as a headache disability.  See Jandreau, supra (lay evidence can be competent to and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

This case meets the three-element test as set forth in 38 C.F.R. § 3.303(a) - (1) the existence of a present disability (the diagnosed headache disability); (2) in-service incurrence of a disease (the documented complaints of headaches); and (3) a causal relationship between the present disability and the disease or injury incurred during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The nexus requirement here was established by way of credible lay evidence and competent, circumstantial medical evidence of a headache disorder that began during service and has continued to the present.  Both the lay and medical evidence of record is probative in the instant case.    

In addition, the Board emphasizes that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In this case, the Veteran sought treatment for headaches while on active duty and has reported that he has continued to experience headaches to the present.  This is evidence of very substantial probative weight and value.  

Moreover, 38 C.F.R. § 3.303(a) provides that determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  

Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a headache disability.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In the alternative, the appellant has headaches that have not been attributed to a known cause.  In essence, head pain without underlying disease or injury.  Service connection would therefore be warranted under a Gulf War theory of entitlement.

	B. Bilateral Hips and Right Ankle

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C.A. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997).  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992).  Likewise, the Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under the relevant statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty.  See Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001).  Hence, the mere fact of a veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he or she has met the current disability due to disease or injury requirement.  Rather, an underlying disease or injury is required.

In the present case, the Board finds that the preponderance of the evidence reflects a lack of any such underlying disease or injury related to the bilateral hips or right ankle at any time during the appeal period.  During the May 2012 VA examination, the Veteran complained of pain in his hips; however, the objective examination was wholly unremarkable.  Similarly, while the Veteran complained of right ankle pain during the May 2012 VA examination, the objective examination was also wholly unremarkable for his right ankle. 

Specifically, when examined in May 2012, the Veteran demonstrated full range of motion in both hips and was able to perform repetitive use testing without any functional impairment.  The examiner noted that the Veteran maintained full muscle strength and there was no "localized tenderness or pain to palpation for [the] joints/soft tissue of either hip."  The VA examiner concluded that the Veteran's "physical and radiological examination findings are within normal [limits, and] no clinical diagnosis can be attributed to the Veteran's subjective complaints of joint pain." 

With respect to his right ankle, the Veteran demonstrated full range of motion in his right ankle and was able to perform repetitive use testing without any functional impairment.  It was noted that the Veteran maintained full muscle strength in his ankle, his joints were stable and there was no evidence of shin splints, a stress fracture, achilles tendonitis or achilles tendon rupture.  The VA examiner did not identify a right ankle disability.

Based upon the foregoing, the Board finds that the May 2012 VA examiner's report indicating that there were no objective findings to support a disability (an impairment) relating to the hips or right ankle, to be evidence of significant probative weight indicating a lack of a current disability.  Furthermore, there is no proof of pathology, either a disease or an injury, to account for the complaints.  The Board notes that this finding is consistent with the evidence contained in the claims folder which also does not describe the existence of a bilateral hip disability or right ankle disability during the appeal period.  Hence, basic entitlement to service connection under 38 U.S.C.A. §§ 1110, 1131 is not warranted.

As alluded to above, the Veteran's DD 214 documents that he was awarded the Southwest Asia Service Medal, the Kuwait Ribbon and the Combat Action Ribbon.  As a result, the Board has also considered the provisions 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, applicable to Persian Gulf veterans.

As noted above, the Veteran's hip pain and right ankle pain, which he is competent to report, has not been attributed to any known clinical diagnosis.  The Board notes that the Veteran's symptoms did not manifest during active service in the Southwest Asia theater of operations, or become manifest to a degree of 10 percent or more through objective indications, to include signs and non-medical indicators that are capable of independent verification.

The Board has considered the Veteran's statements and notes that he is competent to report the symptoms of bilateral hip and right ankle pain.  See Jandreau, supra; Buchanan, supra.  In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson, supra (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  

In this case, however, the May 2012 VA examiner's findings that there was no hip or right ankle disease or injury and no findings of any functional impairment outweigh the more general and conclusory descriptions of the Veteran and his opinion that these subjective symptoms constitute a disability.  Cf. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (threshold considerations in weighing the probative value of medical opinions include the qualifications of the person opining, and most of the probative value from such opinions come from their reasoning).  We again note that the grant of benefits under a Gulf War theory required the existence of a disability (an impairment).  Here, the medical evidence disclosing no impairment is far more probative and credible than the appellant's self report.

In summary, a disability of the bilateral hips and right ankle are not shown by the evidence of record.  The Board has carefully reviewed the record and has concluded that a preponderance of the evidence is against the Veteran's claim for service connection, to include as due to an undiagnosed illness.  The doctrine of reasonable doubt has been considered but as the preponderance of the evidence is against his claim, it is not applicable.  Gilbert v. Derwinski, 1 Vet.App. 49 (1990).


ORDER

Service connection for headaches is granted.

Service connection for a bilateral hip disability is denied. 

Service connection for a right ankle disability is denied. 


REMAND

For the following reasons, the Board finds that the issues of entitlement to service connection for a left ankle disability, a bilateral wrist disability and a bilateral elbow disability must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist.

With respect to his left ankle claim, the Veteran's service treatment records document that he fractured his left ankle during service.  See a November 1991 treatment record.  The Veteran was also diagnosed with a sprained left ankle in August 1996.  

Upon review, however, the record is unclear as to whether the Veteran was experiencing left ankle pain at the time of his separation from service. While he indicated that he was experiencing swollen and painful joints and foot trouble in a September 1997 self-report of medical history, the Veteran clarified these remarks by describing knee pain and toenail fungus.  The Board also notes that a left ankle disability was also not identified during the Veteran's September 1997 separation physical; however, this report suggests that an examination of the Veteran's lower extremities was not conducted. 

In fact, the first documented complaint of left ankle pain comes from an April 2012 VA treatment record.  The Veteran was not diagnosed with arthritis of the left ankle until May 2012.  

The Board also notes that while the Veteran has been diagnosed with arthritis, this condition was not noted during service or within the one year presumptive period defined in 38 C.F.R. § 3.307.  The record does not currently contain evidence of manifestations sufficient to identify in-service arthritis and sufficient observation to establish chronicity at the time. 

Consequently, this issue contains certain questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).

These questions concern whether the Veteran has a left ankle disability which is related his military service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).

With respect to the Veteran's claimed bilateral wrist disability, during the May 2012 VA examination, the Veteran complained of tightness in his wrists which began after he fell onto his outstretched hands in 1989.  While the VA examiner conducted a physical examination and stated that the Veteran's "current physical and radiological examination findings are within normal" limits, the record indicates that the examiner did not conduct range of motion testing for the Veteran's wrists. 

Based on the lack of range of motion testing, the Board finds that the May 2012 VA examiner's conclusion that a wrist disability was not present is inadequate.  See Bloom v. West, 12 Vet.App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See also Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008).  

Consequently, this issue contains certain questions which cannot be answered by the Board.  See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).  Therefore, a VA examination and medical opinion are necessary to determine the nature and etiology of any wrist disability that may be present. 

With respect to the Veteran's bilateral elbow claim, following a physical examination, the May 2012 VA examiner stated that "physical and radiological examination findings [were] within normal [limits, and] no clinical diagnosis can be attributed to [the] veteran's subjective complaints of joint pain."  It was noted that the Veteran's complaints began 9 years after discharge from active duty and there are no medical records of joint pain or complaints in the ensuing years. 

While the VA examiner found that the Veteran did not have an identifiable bilateral elbow disability, in a January 2013 addendum, the examiner stated that the Veteran's elbow pain was "consistent with a diagnosis of medial epicondylitis which he reports was diagnosed 10 years ago." 

Upon review, the May 2012 VA examination and addendum are internally inconsistent.  As noted, after conducting a physical examination, the examiner determined that there was no clinical diagnosis which can account for the Veteran's elbow pain.  However, he subsequently stated that the Veteran's complaints are consistent with a prior diagnosis of medial epicondylitis.  As such, the record is unclear as to whether the Veteran hadepicondylitis that has since resolved, or whether the Veteran's complaints are related to service.  Consequently, this issue contains certain questions which cannot be answered by the Board.  See Colvin, supra. 

Accordingly, the remaining issues are REMANDED for the following action:

1. The RO/AMC should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all health care providers who have treated him for his left ankle, bilateral wrists and bilateral elbows.  The Board is particularly interested in records of pertinent VA treatment that the Veteran may have received since December 2012.

The RO should attempt to obtain such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder.

The Veteran should also be notified that he may submit medical evidence or treatment records to support his claim for service connection.

2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any left ankle disability.  The examiner should review the claims file and opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified left ankle disability had causal origins in service or is otherwise related to the Veteran's active duty service.  The examiner should specifically comment on relationship, if any, between the Veteran's in-service ankle fracture and strain and his current diagnosis of arthritis. Rationales should be associated with all conclusions reached in the examination report.

3. Schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of his claimed bilateral wrist and bilateral elbow pain. All necessary tests should be conducted.

The claims file must be made available to the examiner in conjunction with the examination.

The examiner is asked identify all appropriate clinical diagnoses. If any joint pain cannot be attributed to a known clinical diagnosis, the examiner should describe pertinent objective findings related to such symptomatology and explain why it cannot be so attributed.

If a known clinical diagnosis is found to be responsible for the symptomatology, the examiner should indicate whether it (50 percent probability or more) such diagnosis is etiologically related to the Veteran's military service. 

A complete rationale should accompany any opinion provided.  If an opinion cannot be provided without resorting to mere speculation, it should be so stated and an explanation should be provided as to why that is so.

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion.

4. After completing all indicated development, the RO/AMC then should readjudicate the remaining issues on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran has the right to submit additional evidence and argument on the 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 Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs