Citation Nr: 1754583 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-01 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a left elbow disability, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117. 2. Entitlement to service connection for a bilateral ankle disability, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117. (The issues of entitlement to service connection for a right elbow disability, entitlement to service connection for a bilateral knee disability, entitlement to service connection for a gastrointestinal disability, entitlement to a rating in excess of 10 percent for headaches, whether clear and unmistakable error exists in a May 17, 1996 rating decision as to the assigned effective date of May 8, 1995 and noncompensable rating for the award of service connection for generalized anxiety disorder, entitlement to a rating in excess of 70 percent for generalized anxiety disorder, and entitlement to a total disability rating based upon individual unemployability will be addressed in separate decisions.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1986 to November 1993, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction is currently in the RO in Cheyenne, Wyoming. In February 2015, the Veteran and his spouse testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In an April 2015 Board decision, the Board denied the issues of entitlement to service connection for left elbow and bilateral ankle disabilities. In that decision, the Board also remanded the issues of entitlement to service connection for right elbow, bilateral knee, and gastrointestinal disabilities, as well as the issues of whether clear and unmistakable error exists in a May 1996 rating decision as to the assigned effective date of May 8, 1995 and the noncompensable rating for the award of service connection for generalized anxiety disorder. The Veteran subsequently appealed the April 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2015 Order, the Court granted the parties' October 2015 Joint Motion for Remand (JMR), vacating the Board's April 2015 decision as to the denial of entitlement to service connection for left elbow and bilateral ankle disabilities, and remanded the appeal to the Board for readjudication consistent with the JMR. All of the remanded issues in the April 2015 Board decision (which will be adjudicated in separate Board decisions) were left undisturbed by the Court. In March 2016, the Board remanded the left elbow and bilateral ankle claims for additional development consistent with the October 2015 JMR. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the outset, given the Veteran's documented service in Southwest Asia Theater of Operations (during Operation Desert Shield), consideration of the provisions of 38 U.S.C.A. § 1117 (a)(1) for objective indications of a qualifying chronic disability is warranted. In the October 2015 JMR, the parties agreed that a remand was necessary as the Board's April 2015 decision did not provide adequate consideration of whether the Veteran's reported left elbow and bilateral ankle pain were manifestations of a chronic disability due to an undiagnosed illness under the provisions of 38 U.S.C.A. § 1117 (a)(1) (West 2014). In March 2016, the Board remanded the claims to conduct VA examinations consistent with the October 2015 JMR. In July 2016, the Veteran underwent Disability Benefits Questionnaire (DBQ) examinations to evaluate the claimed left elbow and bilateral ankle disabilities. Relevant to the left elbow, the examiner found that the Veteran did not have any left elbow diagnosis while noting his report that he has had "bilateral elbow pain for 10 years since . . . 2006 time frame." With regard to the ankles, the examiner also found no current diagnosis for those joints but noted the Veteran's report that "he has had ankle pain for about 10 years/around 2006" manifested by daily pain. However, the examiner did not opine whether the left elbow and bilateral ankle symptoms were manifestations of chronic disabilities due to an undiagnosed illness under 38 C.F.R. §3.317 (2017), as specifically instructed by the Board's March 2016 remand pursuant to the October 2015 JMR. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the July 2016 DBQ examiner rendered negative nexus opinions on a direct basis for both claims in finding that the claimed left elbow and bilateral ankle conditions were less likely than not due to service. As rationale, she explained that such conditions began "13 years after military" and the Veteran had "minimal" exposure to Southwest Asia environmental hazards. In support, the examiner provided an extensive commentary addressing rheumatoid factors, including their impact on the general population, without clearly explaining their relevance specific to the Veteran, given that he was found to be negative for rheumatoid factors during service. See October 1992 in-service laboratory finding. In so doing, the examiner did not render a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Under these circumstances, the Board finds that the medical evidence currently of record is inadequate to resolve the claim, both claims must be remanded to conduct VA Gulf examinations to ensure compliance with the previous remand. See Stegall, 11 Vet. App. at 268. While on remand, the AOJ should associate any updated VA treatment records with the Veteran's claims file and request that he identify any outstanding private treatment records referable to his claims. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records referable to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA Gulf War examination in order to address the claimed disabilities manifested by left elbow and bilateral ankle pain. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should note and detail all reported symptoms of the claimed disabilities manifested by pain in the left elbow and bilateral ankles. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all such symptoms. (B) The examiner should specifically state whether the Veteran's claimed left elbow and bilateral ankle pain are attributed to known clinical diagnoses (C) If any symptoms associated with the claimed left elbow and bilateral ankle pain are not determined to be associated with known clinical diagnoses, the examiner must opine whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) For each known clinical diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his exposure to environmental hazards coincident with his service in Southwest Asia. A complete rationale for any opinion offered should be provided. 3. Thereafter, the RO should readjudicate the left elbow and bilateral ankle claims. If benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. They should then be afforded an applicable time to respond thereto. (CONTINUED ON NEXT PAGE) 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 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 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).