Citation Nr: 1756906 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-05 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the left knee. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for a disability manifested by multiple joint pain, other than gout and bilateral degenerative arthritis of the knees, to include as due to undiagnosed illness. 4. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected gout or chronic sinusitis and allergic rhinitis with nasal polyps. 5. Entitlement to an increased rating for gout, rated 20 percent disabling prior to April 9, 2011 and 40 percent disabling since that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from July 1990 to August 2000. These matters come before the Board of Veterans' Appeals (Board) from March 2008 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the March 2008 decision, the RO denied service connection for type 2 diabetes mellitus and denied entitlement to a rating in excess of 20 percent for gout. In the May 2010 decision, the RO denied the Veteran's application to reopen claims of service connection for left knee arthritis and arthritis and denied service connection for upper respiratory problems, hardening of the lungs. The RO in Nashville, Tennessee currently has jurisdiction over the Veteran's claims. In April 2011, the RO granted an increased, 40 percent rating for gout, from April 9, 2011 (see an April 2011 supplemental statement of the case (SSOC)). This created a staged rating as indicated on the title page. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2016 videoconference hearing at the RO. A transcript of the hearing has been associated with his file. In March 2017, the Board granted the application to reopen the claims of service connection for a left knee disability and arthritis. The Board also remanded the underlying claims of service connection for a left knee disability and joint pain (to include arthritis), as well as the claims of service connection for an upper respiratory disability and diabetes mellitus and for an increased rating for gout, for further development. A claim of service connection for a respiratory disability (identified as asthma) was originally denied in an August 2002 rating decision on the basis that there was no medical evidence of any such disability which was incurred in or caused by service. The report of a May 2002 pulmonary function test was subsequently received by VA in March 2003. This report documents findings of a mild restrictive defect, moderate airflow obstruction, and mild gas exchange defect. The claim of service connection for asthma was readjudicated and again denied in a June 2003 rating decision on the basis that there was no medical evidence of any such disability which was incurred in or caused by service. The Veteran's Social Security Administration (SSA) disability records were subsequently received by VA in July 2003 and these records include a November 2000 examination report from G.H. Thurman, M.D. which reveals that the Veteran was diagnosed as having asthma. The claim of service connection for asthma was again denied in a January 2004 rating decision on the basis that there was no medical evidence of any such disability which was incurred in or caused by service. VA primary care treatment notes dated in October and December 2003 were subsequently associated with the claims file and these treatment records reflect that the Veteran was diagnosed as having asthma. VA was in possession of these treatment records prior to the January 2004 decision. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). An August 2004 VA primary care treatment note was also included with the claims file and this treatment record documents a diagnosis of asthma. Thereafter, a claim of service connection for a respiratory disability (identified as upper respiratory problems, hardening of the lungs) was denied in the May 2010 rating decision, from which the current appeal originates. As new and material evidence pertaining to the claim of service connection for a respiratory disability was received within a year of the August 2002, June 2003, and January 2004 rating decisions, these decisions are not final and the Veteran's initial claim of service connection for asthma remains pending. 38 C.F.R. § 3.156 (b) (2017); Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision non-final); 38 C.F.R. § 3.400 (q) (2017) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). See also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (to comply with the directive of 38 C.F.R. § 3.156 (b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim). Thus, the Board will adjudicate the Veteran's claim of service connection for asthma on a de novo basis and this issue on appeal is characterized as stated above on the title page. Moreover, in light of the Veteran's reported symptoms and contentions, the fact that service connection has been awarded for gout and degenerative joint disease of the right knee, and the fact that the Board is granting service connection for degenerative arthritis of the left knee, the Board has recharacterized the claim of service connection for joint pain as a claim of service connection for a disability manifested by multiple joint pain, other than gout and bilateral degenerative arthritis of the knees, to include as due to undiagnosed illness, as set forth on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Finally, the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for gastroesophageal reflux disease (GERD) and a right knee disability and the Board remanded these issues in March 2017 for further development. The Appeals Management Center granted service connection for GERD and right knee degenerative joint disease by way of rating decisions dated in May and September 2017, and thereby resolved the appeal as to these issues. The issues of entitlement to service connection for a disability manifested by multiple joint pain and diabetes mellitus and entitlement to an increased rating for gout are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current degenerative arthritis of the left knee had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran's current asthma had its onset in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative arthritis of the left knee are met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board is granting the claims of service connection for degenerative arthritis of the left knee and asthma, the claims are substantiated and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing service connection for certain chronic disabilities listed in 38 C.F.R. § 3.309 (a), including arthritis, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from qualifying service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, a January 2017 VA primary care treatment note and the report of a June 2017 VA knee examination reveal that the Veteran has been diagnosed as having degenerative arthritis of the left knee and asthma. Thus, current disabilities have been demonstrated. There is also evidence of left knee and respiratory symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current degenerative arthritis of the left knee and asthma were incurred in service. The Veteran contends that he has experienced left knee and respiratory symptoms ever since service. Specifically, he has reported that he began to experience knee pain and shortness of breath in service. In this regard, service treatment records include a December 1999 report of medical history form completed for purposes of a physical evaluation board examination, on which the Veteran reported that he experienced shortness of breath. He reported during a pre-discharge VA examination dated in June 2000 that he experienced shortness of breath when walking one block. Also, his wife reported in a November 2009 statement (VA Form 21-4138) that the Veteran began to experience shortness of breath in service in approximately 1995. Moreover, the post-service lay and medical evidence indicates that the Veteran has continued to experience left knee and respiratory symptoms in the years since service. The Veteran is competent to report left knee and respiratory symptoms in service and continuous left knee and respiratory symptoms in the years since service, and the Veteran's wife is competent to report her observations of the Veteran's symptoms. See Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337. There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous left knee and respiratory symptoms in the years since service are credible. The physician who conducted the June 2017 VA knee examination opined that the Veteran's left knee disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner only explained, however, that gout causes an inflammatory type of arthritis and not the degenerative features suggested in the Veteran's recent left knee imaging report. The June 2017 opinion is of little, if any, probative value because although the opinion itself addresses whether the Veteran's left knee disability is directly related to service, the examiner did not provide any specific rationale for this conclusion. Rather, the examiner only explained why the left knee disability was not caused by the Veteran's service-connected gout. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board acknowledges that the Veteran has already been awarded service connection for gout, that there is no evidence to clearly distinguish the left knee symptoms associated with the gout from those associated with degenerative arthritis, and that there is no medical opinion of record that specifically indicates that the Veteran's left knee symptoms in service and in the years since that time are related to the current degenerative arthritis (as opposed to gout). In this regard, the Board notes that it attempted to obtain an adequate medical opinion from a qualified medical professional in that a VA examination was requested in the March 2017 remand. As noted above, the subsequent June 2017 opinion is of minimal probative value. While further development could be undertaken to obtain an additional medical opinion, the competent and credible evidence of left knee symptoms in service and in the years since service, and the current diagnosis of degenerative arthritis of the left knee place the evidence in relative equipoise as to whether the Veteran's current degenerative arthritis of the left knee had its onset in service. Moreover, post service treatment records dated as early as the November 2000 examination report from Dr. Thurman and an April 2001 VA primary care new patient note refer to both gout and arthritis of the knees. Therefore, additional development would be inappropriate in this case. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant); 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). In sum, the evidence reflects that the Veteran experienced left knee and respiratory symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current degenerative arthritis of the left knee and asthma. There is no adequate and probative medical opinion contrary to a conclusion that the current degenerative arthritis of the left knee and asthma had their onset in service. In light of this evidence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current degenerative arthritis of the left knee and asthma had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed degenerative arthritis of the left knee and asthma is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER Entitlement to service connection for degenerative arthritis of the left knee is granted. Entitlement to service connection for asthma is granted. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.) In the present case, the Veteran contends that he has a current disability manifested by multiple joint pain. Service treatment records document reports of and treatment for joint symptoms (including pain) and the Veteran reported a history of swollen or painful joints on the December 1999 report of medical history form completed for purposes of a physical evaluation board examination. Moreover, the Veteran and his wife have reported a continuity of joint symptomatology in the years since service. Hence, there is competent evidence of persistent or recurrent symptoms of a disability manifested by multiple joint pain, evidence of joint symptoms in service, and competent evidence of a continuity of multiple joint symptomatology in the years since service, suggesting that a current multiple joint disability other than gout and degenerative arthritis of the knees may be related to service. Thus, the Board finds that VA's duty to obtain an examination as to the nature and etiology of any current disability manifested by multiple joint pain other than gout and bilateral degenerative arthritis of the knees is triggered. Such an examination is needed to determine whether the Veteran has any current multiple joint disability other than gout and bilateral degenerative arthritis of the knees and to obtain a medical opinion as to the etiology of any such disability(ies). As for the claim of service connection for diabetes mellitus, the Veteran contends that he has current diabetes which is either directly related to service (to include episodes of hypoglycemia therein) or is associated with steroid medications taken for his service-connected gout and chronic sinusitis and allergic rhinitis with nasal polyps. In its March 2017 remand, the Board instructed the AOJ to obtain a medical opinion from an appropriate physician as to the etiology of the Veteran's diabetes. The physician was asked to opine as to whether the Veteran's diabetes was related to service or whether it was caused or aggravated by his service-connected gout and chronic sinusitis and allergic rhinitis with nasal polyps. Thereafter, the Veteran was afforded a VA diabetes examination in April 2017 and was diagnosed as having type II diabetes mellitus. The family nurse practitioner who conducted the examination explained that type II diabetes is caused by either a resistance of the body to the effects of insulin (resistance) or when the body does not produce enough insulin to maintain normal glucose levels. The Veteran most likely had a combination of these causes. He was diagnosed as having type II diabetes in September 2012 based on an HgbA1c reading of 8.8. He did not meet the criteria for a diagnosis of type II diabetes until that time. The April 2017 examiner then opined that it was not likely ("less than 50 percent probability") that the Veteran's diabetes began in service because he did not meet the criteria for diabetes until 2012. There are many causes for low blood sugar and the 2000 and 2002 documentations were based on symptoms and not actual blood sugar numbers. Nevertheless, the onset of symptoms and the diagnosis was years apart and the symptoms were not a prelude to the diabetes. The examiner also opined that it was not likely ("less than 50 percent probability") that the Veteran's diabetes mellitus was caused or aggravated by his service-connected gout or chronic sinusitis and allergic rhinitis with nasal polyps, to include prescribed medications such as steroids. The examiner reasoned that diabetes is a condition of not enough insulin or insulin resistance, and it is not associated with gout or ear, nose, and throat conditions. The steroids that were intermittently used by the Veteran for treatment in the past did not result in elevated blood sugars. In light of the fact that the Board had instructed the AOJ to obtain a medical opinion pertaining to the Veteran's diabetes from an appropriate physician, a second VA diabetes examination was conducted by a physician in June 2017 and a diagnosis of type II diabetes was provided. The physician opined that the diabetes was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The physician reasoned that diabetes mellitus neither occurred in nor was caused by service, that the Veteran's service treatment records were negative for any evidence of diabetes, and that there was no evidence of diabetes within one year of the Veteran's discharge from service. A review of the Veteran's A1C readings indicated a gradual upwards trend that culminated in an A1C reading of 6.4 in April 2011 and 8.8 in September 2012. This strongly suggested that the Veteran's diabetes had its onset between 2011 and 2012. A January 2002 VA treatment record which noted that the Veteran had low blood sugar was of no consequence because low blood sugar (hypoglycemia) is not a recognized presentation of diabetes. Hypoglycemia in diabetes is more often seen as a complication of treatment with insulin or sulphonylurea medications, which the Veteran was not using at the time. The physician also opined that the Veteran's diabetes was not likely ("less likely than not"/"less than 50 percent probability") proximately due to or the result of his service-connected gout, chronic sinusitis, or allergic rhinitis with polyps. The physician explained that the Veteran's records did not suggest that he received steroid therapy at a dose and duration that would aggravate glucose control. Rather, his glucose control showed improvement since 2012 (A1C was 8.8 in September 2012 and 6.2 in April 2017). The length of time on steroids, the relative potency of the glucocorticoid, and the absolute dose all play a role in the occurrence of steroid induced diabetes. The odds ratio for patients receiving the equivalent of 50, 100, and greater than 120 milligrams of hydrocortisone daily were 3.02, 5.82, and 10.35, respectively, compared with controls. The Veteran was using Flonase 50mcg on a daily basis as needed and this dosage was certainly not likely to cause diabetes. The April and June 2017 opinions that the Veteran's diabetes is not likely directly related to service are insufficient because they are, in part, based upon an inaccurate history. Although the examiners reasoned that the Veteran's diabetes did not have its onset until 2011 or 2012, the report of a June 2002 VA hemic disorders examination reflects that the Veteran had a high blood glucose level and VA treatment records dated as early as September 2005 (see a September 2005 VA rheumatology outpatient note) document diagnoses of diabetes. Also, a VA diabetes examination was conducted in August 2008, the Veteran was diagnosed as having type II diabetes mellitus, and the examination report indicates that the diabetes had its onset in 2006. Hence, the April and June 2017 opinions as to direct service connection are based on an inaccurate history and are insufficient. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, as for secondary service connection, the physician who conducted the June 2017 VA diabetes examination only provided an opinion as to whether the Veteran's diabetes was caused by his service-connected gout, chronic sinusitis, or allergic rhinitis with polyps (to include medications taken for these disabilities). The physician did not, however, provide any opinion as to whether the diabetes was aggravated by the service-connected disabilities. See 38 C.F.R. § 3.310(b) (2017). Hence, a remand is necessary to obtain an addendum opinion (preferably from the examiner who conducted the June 2017 VA diabetes examination) that addresses whether the Veteran's current diabetes mellitus was incurred in service or was caused or aggravated by his service-connected gout and/or chronic sinusitis and allergic rhinitis with nasal polyps (to include medications taken for these disabilities). With respect to the claim for an increased rating for gout, the Veteran was afforded a VA examination in April 2017 to assess the severity of the disability. The family nurse practitioner who conducted the examination reported that the Veteran's knees were the only joints that had symptoms (including pain) attributable to gout. The Board points out, however, that an April 2011 VA examination report indicates that the Veteran experienced flare ups of gout in his feet, ankles, and knees and that he has continued to report symptoms (including pain) in multiple joints other than the knees. The examiner who conducted the April 2017 examination did not acknowledge or discuss this evidence or otherwise explain why the Veteran's gout only involved his knees, despite the evidence of more widespread involvement. As for the knees, disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011). Moreover, the Court recently held that the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also notes that a more recent Court decision addresses what constitutes an adequate explanation for an examiner's inability to estimate range of motion loss in terms of degrees during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA knee examination was conducted in June 2017 and the Veteran was diagnosed as having bilateral degenerative arthritis and gout. He reported that he experienced flare ups of his knee disabilities which involved increased pain. The ranges of active motion of the knees were reported and it was noted that there was objective evidence of pain with all ranges of motion, that the pain caused functional loss, and that there was evidence of pain with weight bearing. It is unclear from the June 2017 examination report the points at which pain began during the ranges of knee motion and the extent to which the Veteran experiences additional functional loss of the knees (in degrees of motion) due to pain. Also, the knees were not tested for pain on passive motion and in non weight bearing. Moreover, the examiner was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups because the Veteran was not experiencing a flare up at the time of the examination. In light of the above-noted deficiencies, the Board finds that a new VA examination should be conducted upon remand to assess the severity of the service-connected gout and its residuals in all affected joints (including, but not limited to, the knees). The examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that an estimated degree of range of motion loss due to functional impairment cannot be given, and provide an explanation of any inability to estimate range of motion loss in terms of degrees of motion. Also, given the Board's award of service connection for degenerative arthritis of the left knee, the Board finds that the AOJ should again adjudicate the claim for an increased rating for gout after implementing the award of service connection for degenerative arthritis of the left knee, to include the assignment of an effective date and a disability rating, as these determinations may impact the Board's analysis with respect to the increased rating claim. Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159 (c)(4). The Veteran contends that his claimed disability manifested by multiple joint pain is due to an undiagnosed illness associated with service in the Southwest Asia theater of Operations. For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). Under this law and regulation, 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 December 31, 2021. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, qualifying chronic disabilities include, among other things, an undiagnosed illness. 38 C.F.R. § 3.317 (a)(2). The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). In this case, the Veteran's "Certificate of Release of Discharge from Active Duty" form (DD Form 214) reflects that he did not have any foreign service. Although he received the Southwest Asia Service Medal, it appears from a review of his service personnel records that this was received based upon his service aboard the U.S.S. Deyo while the ship participated in Operation Provide Comfort. The Veteran served aboard the U.S.S. Deyo from November 1990 to July 2003. Hence, upon remand, the AOJ should undertake any necessary development to attempt to confirm whether the Veteran served in the Southwest Asia theater of operations, to include if necessary, obtaining any ship logs or other information detailing the movements and operations of the U.S.S. Deyo during Operation Provide Comfort. Updated VA treatment records should also be secured upon remand. Accordingly, the claims remaining on appeal are REMANDED for the following action: 1. Implement the Board's award of service connection for degenerative arthritis of the left knee and assign a disability rating. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for joint pain, diabetes, and gout, to include the dates of any such treatment. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for joint pain, diabetes, and gout from any sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is obtained. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e) (2017). 3. Obtain and associate with the file all outstanding records of the Veteran's treatment from the VA Tennessee Valley Healthcare System dated since November 2017; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 4. Undertake all necessary actions to attempt to verify the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War, to include (if necessary) obtaining any ship logs and other information detailing the movements and operations of the U.S.S. Deyo during Operation Provide Comfort. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 5. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, request an opinion from an appropriate specialist physician. Ask the physician to review all relevant electronic records contained in the VBMS and Virtual VA (Legacy Content Manager) systems (including a copy of this remand along with any records obtained pursuant to this remand) and provide an opinion as to the nature and etiology of the Veteran's diabetes mellitus. For any diabetes diagnosed since approximately May 2007, the physician should answer the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current diabetes had its onset during service, had its onset in the year immediately following service, is related to the Veteran's hypoglycemia in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the current diabetes was either (i) caused OR (ii) aggravated by the Veteran's service-connected gout and/or chronic sinusitis and allergic rhinitis with nasal polyps (to include medications, such as steroids, taken for these disabilities)? In answering the above questions, the physician should specifically acknowledge and comment on the Veteran's hypoglycemia in service (to include the hypoglycemia noted during a June 2000 pre-discharge VA examination), the high blood glucose level recorded at the time of the June 2002 VA hemic disorders examination, and the diagnoses of diabetes included among the Veteran's treatment records as early as September 2005 (see a September 2005 VA rheumatology outpatient note). The physician must provide reasons for each opinion given. The physician is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for diabetes in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 6. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to assess the nature and etiology of any current disability manifested by multiple joint pain other than gout and bilateral degenerative arthritis of the knees. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should answer the following questions: (a) Is any multiple joint pain that has been present since approximately September 2009 due to a distinct and identifiable disability other than gout and bilateral degenerative arthritis of the knees? (b) If any current multiple joint pain is related to a distinct and identifiable disability other than gout and bilateral degenerative arthritis of the knees, is it at least as likely as not (50 percent probability or more) that the current disability had its onset during service, had its onset during the year immediately following service (in the case of any currently diagnosed arthritis), is related to the Veteran's reported joint symptoms in service, or is otherwise the result of a disease or injury in service? (c) If any current multiple joint pain is not due to a distinct and identifiable disability other than gout and bilateral degenerative arthritis of the knees, is it at least as likely as not (50 percent probability or more) that the symptom represents an objective indication of chronic disability resulting from an undiagnosed illness related to service in Southwest Asia or a medically unexplained chronic multisymptom illness which is defined by a cluster of signs or symptoms? If so, the examiner should also describe the extent to which the illness has manifested. In formulating the above opinions, the examiner should specifically acknowledge and comment on any disability manifested by multiple joint pain diagnosed or any joint pain experienced since approximately September 2009 (even if the disability is currently in remission or has completely resolved), the Veteran's joint symptoms in service, and the reports of multiple joint pain in the years since service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history and such statements by the Veteran (including his reports of a continuity of symptomatology in the years since service) must be specifically acknowledged and considered in formulating any opinions. 7. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, the AOJ shall contact the Veteran and coordinate with him to schedule a VA examination during a time in which he is experiencing a flare up of his gout. All such efforts should be documented in the claims file. If it is not possible to schedule the examination during a flare up, the reason must also be documented in the claims file. (The examination shall nevertheless be scheduled.) All relevant electronic records, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report the severity and extent of all symptoms associated with the Veteran's gout, to include whether the disease is active or inactive, the number of exacerbations per year, the number of incapacitating episodes per year, the extent to which symptoms cause impairment of health (i.e., definite impairment, severe impairment, or total incapacitation), and whether there is any associated weight loss or anemia. The examiner should identify all joints affected by the gout and specifically indicate whether the Veteran's feet, ankles, knees, and any other reported joint problems are part of his gout. With respect to each joint affected by gout, the examiner should complete the appropriate disability benefits questionnaire pertaining to that joint. In particular, for each such joint, the examiner should report all appropriate ranges of joint motion on both active motion and passive motion and in both weight bearing and non weight bearing. The same range of motion testing should also be conducted for any opposite undamaged joint for comparison purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to all appropriate ranges of joint motion: What is the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? In answering this question, the examiner must elicit information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment of flare-ups from the Veteran in accordance with the VA Clinician's Guide, Ch. 11. If the examiner is unable to estimate functional loss in terms of degrees of motion after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his gout. 8. If any benefit sought on appeal remains denied, the AOJ should issue an appropriate supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. 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). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs