Citation Nr: 1322241 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 02-02 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a disorder manifested by an upset and acidic stomach, including as due to an undiagnosed illness. 2. Entitlement to service connection for a disorder manifested of shortness of breath, including as due to an undiagnosed illness. 3. Entitlement to service connection for a bilateral shoulder disorder, including as due to an undiagnosed illness. 4. Entitlement to service connection for bilateral elbow pain and numbness and tingling of the hands, including as due to an undiagnosed illness. 5. Entitlement to service connection a bilateral knee disorder, including as due to an undiagnosed illness. 6. Entitlement to service connection for a bilateral ankle disorder, including as due to an undiagnosed illness. 7. Entitlement to service connection for a neck disorder, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1995, which included service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. As outlined in the Board's previous decisions, this case has a lengthy procedural history. The Veteran's appeal stems from his service connection claims filed in October 1995, approximately one month after his retirement from active service. The Veteran perfected a substantive appeal of his claims in February 2002 and requested to participate in a Board hearing conducted at the RO. The Veteran was scheduled to testify at his requested hearing in January 2006; however, he failed to appear. In April 2006, the Board issued a decision addressing the Veteran's appeal, denying service connection for a right wrist ganglion cyst, frostbite residuals, and loss of protective skin pigment. The remainder of the Veteran's claims were remanded for further evidentiary development, and the RO/Appeals Management Center (AMC) completed the requested development and readjudicated the Veteran's claims. While the record fails to reveal that the Veteran made a second request to participate in a Board hearing, the Veteran was nevertheless scheduled to testify at another Board hearing conducted at the RO, which was held in September 2011 before the undersigned Veterans Law Judge. A transcript of those proceedings has been associated with the Veteran's claims file. The Board remanded this appeal in February 2012 and December 2012. The issue of service connection for a disorder manifested by an upset and acidic stomach, including as due to an undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran performed over 100 parachute jumps in service with many hard landings. 2. The Veteran's service treatment records note complaints of pain, numbness, weakness, and tingling in the bilateral upper extremities; respiratory symptoms including shortness of breath; joint symptoms to include pain, aching, swelling, and/or stiffness, affecting the knees, shoulders, and ankles; and severe neck pain. 3. During the period on appeal, the Veteran has been diagnosed with bilateral carpal tunnel syndrome; chronic bilateral brachioradialis tendonitis; bilateral plantar fasciitis with plantar spurs; chronic bilateral patellar tendonitis; chronic bilateral trapezius muscle strain; chronic cervical strain; and, reactive airway disease, all of which the Veteran has credibly reported experiencing since service. CONCLUSIONS OF LAW 1. The criteria for service connection for shortness of breath, diagnosed as reactive airways disease, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 2. The criteria for service connection for a bilateral shoulder disorder, diagnosed as chronic bilateral trapezius muscle strain, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 3. The criteria for service connection for bilateral elbow pain and numbness and tingling of the hands, diagnosed as carpal tunnel syndrome and bilateral brachioradialis tendonitis, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 4. The criteria for service connection for a bilateral knee disorder, diagnosed as chronic bilateral patellar tendonitis, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 5. The criteria for service connection for a bilateral ankle disorder, diagnosed as bilateral plantar fasciitis with plantar spurs, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 6. The criteria for service connection for a neck disorder, diagnosed as a chronic cervical strain, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a disorder manifested of shortness of breath, a bilateral shoulder disorder, bilateral elbow pain and numbness and tingling of the hands, bilateral knee disorder, a bilateral ankle disorder, and a neck disorder. As this represents a complete grant of the benefit sought on appeal regarding those claims, no discussion of VA's duty to notify and assist is necessary with respect to them. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, 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. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 38 C.F.R. § 3.317(a)(1)). 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. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of certain illnesses. 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 multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), 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 multisymptom illness. A "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)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). "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)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom 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. 38 C.F.R. § 3.317(b). 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. 38 C.F.R. § 3.317(a)(4). Turning first to the Veteran's service connection claim for a disorder manifested by shortness of breath, including as due to an undiagnosed illness, the Board notes that during a May 1996 VA examination, the Veteran reported a history of shortness of breath and heart palpitations. During 2002 VA treatment, the Veteran complained of a 12-year history of shortness of breath. Pulmonary function testing at that time revealed mild obstructive airway disease, and subsequent VA treatment notes dated through 2012 show additional diagnoses of reactive airway disease, hyporeactive airway disease, and hyperreactive airway disease. They further show ongoing prescriptions of Albuterol for wheezing. Additionally, a recent diagnosis of shortness of breath was rendered in conjunction with April 2012 pulmonary function testing. The ongoing VA treatment notes, showing objective evidence of chronic respiratory problems post service and the Veteran's early 1996 and 2002 reports of long-standing symptoms, are consistent with the Veteran's report that he developed shortness of breath in service and has experienced this recurring condition since his discharge from service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Moreover, the Veteran's assertion is consistent with service treatment records documenting the Veteran's report of a history of shortness of breath reported in service and treatment for respiratory problems. Next, regarding the Veteran's service connection claim for a disorder manifested by bilateral elbow pain and numbness and tingling of the hands, the Board notes that post-service VA records and examination reports show a diagnosis of bilateral carpal tunnel syndrome and chronic tendonitis involving the bilateral brachial radialis tendon. Additionally, service treatment records, including a July 1995 separation examination report, document complaints of chronic pain, weakness, tingling, numbness, and/or paresthesias of the bilateral upper extremities, and diagnoses of carpal tunnel syndrome and paresthesias of the upper extremities of undetermined etiology. Those service records further show that, while electromyography testing in service was normal, the Veteran exhibited objective evidence of neurological problems in November 1987 and June 1994 at which times bilateral Phalen and/or Tinel's signs were positive. The foregoing evidence, showing chronic upper extremity complaints of pain and numbness in service and complaints post service, and diagnoses of bilateral carpal tunnel syndrome and chronic brachioradialis tendonitis, supports the Veteran's report that he developed a conditions manifested by pain and numbness affecting the bilateral upper extremities in service and has experienced these recurring conditions since his discharge from service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) Regarding the Veteran's musculoskeletal service connection claims, post-service treatment notes and VA examination reports show current disabilities. Specifically, the record shows various diagnoses to include bilateral plantar fasciitis with plantar spurs relating to the ankle complaints, bilateral patellar tendonitis, bilateral brachioradialis tendonitis, chronic bilateral trapezius muscle strain, chronic cervical strain, arthritis, and degenerative joint disease. Significantly, during a 1996 VA examination, the Veteran was diagnosed with various forms of arthritis. While those diagnoses were not supported by x-ray imaging, the Board finds it significant that the examiner determined that a diagnosis was warranted based on the Veteran's reported symptoms, findings on physical examination, and history of service as a paratrooper. Service treatment records also support in-service incurrence of those disabilities. Those records show complaints of or treatment for injury to the right knee and ankle in April 1976, a left shoulder strain in February 1987, a left knee scar associated with trauma in November 1987, a diagnosis of traumatic arthritis in September 1991, and ongoing complaints of joint pain, swelling, and stiffness affecting the shoulders, knees, ankles, and elbows. Significantly, during a July 1995 separation examination, the Veteran reported a positive history of swollen or painful joints; broken bones; arthritis, rheumatism or bursitis; bone, joint or other deformity; painful or trick shoulder; recurrent back pain; and trick or locked knee. He elaborated that he has sore, aching, painful joints in his ankles, knees, shoulders, and elbows, as well as severe neck pain associated with locking in his middle back. The July 1995 separation examiner noted defects to include degenerative joint disease of multiple joints, noting that the Veteran was a parachute jumper with over 100 jumps. Again, while the in-service arthritis diagnoses were not supported by x-ray imaging, the Board finds it significant that the examiner found that the Veteran's complaints and clinical findings, along with his history of parachute jumps, were consistent with a diagnosis of arthritis. As with the Veteran's other claims, the record supports the Veteran's competent and credible reports of an onset of knee, ankle, shoulder, and neck symptoms in service, and continuing symptoms post service. The Board acknowledges that the 2011 VA examiner declined to link the Veteran's diagnosed shortness of breath/reactive airway disease, carpal tunnel syndrome, plantar fasciitis, patellar tendonitis, brachioradialis tendonitis, and cervical strain to service or to an undiagnosed illness; however, the Board finds that the opinion is inadequate for rating purposes. Specifically, the examiner did not address whether the Veteran's musculoskeletal problems are related to his numerous parachute jumps and documented hard landings in service. Moreover, while the opinion was predicated on a stated lack of corroborative medical evidence in the Veteran's service treatment records, the examiner failed to consider the Veteran's competent and credible lay testimony that he experienced the symptoms of his claimed conditions during service, but failed to always seek treatment due to his status as an officer with an elite unit. Additionally, the 2011 VA physician's recitation of the evidence in the Veteran's claims file fails to reflect his consideration of a November 1987 diagnosis of left shoulder strain and the Veteran's diagnosed maladies during his 1995 service examination, and his 1996 and 1997 VA examinations. Nor does the physician adequately address or reconcile his conclusions with significant positive evidence in favor of the Veteran's claims, including the ongoing complaints of numbness, tingling, and pain in the bilateral arms during service, and his reports of knee, ankle, and/or shoulder pain in service and upon separation, at which time he also reported severe neck pain. Accordingly, this medical opinion is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The Board further acknowledges that attempts were made to obtain additional VA opinions in April 2012 and January 2013, but that the Veteran failed to cooperate during the examination April 2012 examination. In this regard, the April 2012 VA examiner concluded that the Veteran had no current disorders manifested by shortness of breath, shoulder pain, elbow pain, numbness and tingling in his hands, knee pain, ankle pain, or neck pain. However, the examiner did not acknowledge or address the diagnoses made during the appeal period related to the Veteran's claimed disorders, namely restrictive airway disease of unknown etiology, chronic bilateral trapezius muscle strain, chronic brachioradialis tendonitis, carpal tunnel syndrome, bilateral patellar tendonitis, bilateral plantar spurs, and chronic cervical strain. Moreover, the examiner's findings that the Veteran had no neck disorder or shortness of breath are inconsistent with electronic VA treatment records reflecting April 2012 radiological findings of degenerative cervical spine changes, and April 2012 pulmonary function testing. Therefore, the Board finds that those examination reports are of little probative value as to the etiology of any of the Veteran's claimed conditions. However, the Board also finds that further remand is not necessary to obtain an additional opinion with respect to the claims decided herein, because the Board finds that, after resolving all doubt in the Veteran's favor, the evidence of record is sufficient to grant service connection. Thus, the more probative evidence of record reflects that the Veteran complained of or was treated in service for respiratory symptoms, including shortness of breath; pain and numbness and tingling of the elbows and hands; chronic bilateral knee, shoulder, and ankle pain; and, neck pain, and further, sought service connection for those conditions upon his discharge from service. He has competently and credibly reported experiencing symptoms related to those conditions continually since service, and VA treatment notes dating from 2000 to 2012, and VA examination reports dated in 1996, 1997, 2006, and 2011 support ongoing conditions diagnosed respectively as reactive airways disease and shortness of breath; bilateral carpal tunnel syndrome and chronic brachioradialis tendonitis; chronic bilateral patellar tendonitis; chronic bilateral trapezius muscle strain; bilateral plantar fasciitis with plantar spurs; and chronic cervical strain. To the extent that the Veteran did not seek frequent or continuous treatment in service for any of his disabilities on appeal, the Board finds credible the Veteran's reports of failing to seek treatment for his various maladies during service, as he felt that frequent sick call visits would jeopardize his placement in his elite unit, and because he felt that his duties as an officer took precedence over him seeking medical care. Accordingly, a basis for granting service connection for the foregoing conditions has been presented. Therefore, this portion of the Veteran's appeal is granted. ORDER Service connection for a disorder manifested of shortness of breath, diagnosed as reactive airways disease, is granted. Service connection for a bilateral shoulder disorder, diagnosed as bilateral chronic trapezius muscle strain, is granted. Service connection for bilateral elbow pain and numbness and tingling of the hands, diagnosed as carpal tunnel syndrome and chronic brachioradialis tendonitis, is granted. Service connection for a bilateral knee disorder, diagnosed as chronic bilateral patellar tendonitis, is granted. Service connection for a bilateral ankle disorder, diagnosed as plantar fasciitis with plantar spurs, is granted. Entitlement to service connection for a neck disorder, diagnosed as chronic cervical strain, is granted. REMAND With regard to the remaining claim on appeal for service connection for a disorder manifested by upset and acidic stomach, the Veteran may prevail on that claim if the probative evidence reflects a diagnosis related to his claimed disorder and there is probative evidence relating that diagnosed disorder to service, or if the claimed condition is not linked to a known clinical etiology and the requirements of 38 C.F.R. § 3.317 are met. Thus, when the claim was last remanded, the Board requested that the Veteran be afforded a related VA examination, and that for any diagnosis rendered during that examination, or for any related diagnosis rendered during the appeal period, the examiner offer a medical opinion as to whether the diagnosed disorder is related to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The record reflects that the requested medical examination was performed in April 2012, and the examiner diagnosed the Veteran to have gastroesophageal reflux disease (GERD) in conjunction with his claim for an acidic stomach. However, the examiner did not offer a related etiological opinion. In January 2013, an additional etiological opinion was requested from the same April 2012 VA examiner, who indicated in a separate report that her previous opinion remains unchanged. Significantly, the VA examiner did not offer an etiological opinion regarding the Veteran's diagnosed GERD. Thus, the claim must be remanded in order to obtain the medical opinion previously requested by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). As noted in the Board's prior December 2012 remand, the Veteran has made clear his unwillingness to participate in any further VA examinations. Therefore, the Board will not request that the Veteran be reexamined, but rather, request an etiological opinion based on a review of the record. The Board further requests that an opinion be obtained from an examiner other than the examiner who provided the April 2012 and January 2013 opinions, as that examiner has declined to provide etiological opinions on two separate occasions. The VA examiner should be mindful that, for purposes of the opinion, the Board finds credible the Veteran's reports of failing to seek treatment for his various maladies during service, as he felt that frequent sick call visits would jeopardize his placement in his elite unit, and because he felt that his duties as an officer took precedence over him seeking medical care. Additionally, the Veteran's recent VA treatment records should be obtained, as they may reflect additional or alternative diagnoses related to the Veteran's claimed condition. The Veteran's electronic claims file indicates that his VA treatment records were last obtained in November 2012. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from November 2012 to the present. 2. After completing the above development, send the Veteran's claims folder to a different person than the examiner who conducted the April 2012 VA examination and provided the January 2013 opinion. The Veteran should not be re-examined, as he has stated that he is unwilling to participate in any further VA examinations. After reviewing the record, the reviewer should opine as to whether it is at least as likely as not that the Veteran's GERD, or any other disorder manifested by an acidic and upset stomach shown during the period on appeal which dates from his 1995 discharge from service, had its onset in or is otherwise attributable to service. When rendering these opinions, the reviewer should consider the Veteran's report of the onset and continuity of his related symptoms since service. The reviewer should provide a complete rationale for any opinion expressed. If it is determined that a medically-sound opinion cannot be rendered without resorting to speculation, an explanation as to why that is so should be provided. 3. Then readjudicate the appeal. For any benefit sought that remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC, and be given the opportunity to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs