Citation Nr: 1802248	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-03 777	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a right knee disability.

2.  Entitlement to an initial evaluation in excess of 10 percent for service connected lumbar spine strain.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

Jeanne Celtnieks, Associate Counsel


INTRODUCTION

The Veteran served with the U. S. Marine Corps on active duty from August 2006 to August 2010.  His service included multiple deployments to Iraq.  He was awarded the Iraq Campaign Medal.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision of the Winston-Salem North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).

A hearing was held before the undersigned in August 2016.

The issue of entitlement to an initial evaluation in excess of 10 percent for service connected lumbar spine strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, a right knee disability is related to service.  


CONCLUSION OF LAW

The criteria for service connection for a right knee disability have been met.  38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.471a, Diagnostic Code5003 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131.  A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War.  See 38 U.S.C. § 1117 (f); 38 C.F.R. § 3.317 (e).  The Veteran's military records document that he served in Southwest Asia during the Persian Gulf War.

Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during 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 not later than December 31, 2021.  Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests.  See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a), (b).

A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs or symptoms.  See 38 C.F.R. § 3.317 (a)(2).

The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  See 38 C.F.R. § 3.317 (a)(3).

Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  See 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b).

With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317 , the veteran is not required to provide competent evidence linking a current disability to an event during service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  The symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of "direct service connection," VA cannot impose a medical nexus requirement.  38 U.S.C. § 1117; 38 C.F.R. § 3.317.  Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue.  Id. at 9-10.  Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117.  Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). 

In the June 2010 medical examination on separation, the Veteran noted right knee pain.  A VA examination of the knee was provided in March 2012.  The examiner found that the knee was red but not swollen.  The Veteran reported pain.  Objective evidence of pain was not observed.  Diagnostic studies did not show any significant results.  The examiner was unable to diagnose a knee disability.

A June 2013 MRI report from a private examiner, Dr. L. A., reflected "trace edema" and noted that the finding was nonspecific but had been described in patients with chronic knee pain.  A July 2013 results of a Physical Work Performance Evaluation from ErgoScience reflected that the examiner observed signs of knee pain and the Veteran reported pain during the evaluation.  Accordingly, after resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates the Veteran has right knee joint pain consistent with a compensable disability rating of 10 percent.  38 C.F.R. §  4.71a. 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Thus, even if the Veteran's symptoms of right knee pain do not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion throughout the period on appeal, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion.  38 C.F.R. § 4.59.

The Board finds that the criteria for a 10 percent disability rating by analogy to Diagnostic Code 5003, applying the principles of 38 C.F.R. § 4.59, for painful motion that is manifested to a noncompensable degree, is supported by the evidence in this case.  In statements made throughout the course of this appeal, the Veteran has reported having right knee pain since service.  Moreover, on at least one of the examinations during the appeal period, the examiner observed signs of knee pain.  Thus, resolving reasonable doubt in the Veteran's favor, presumptive service connection for undiagnosed right knee joint pain, as due to a qualifying chronic disability, is warranted.  38 U.S.C. § 1117; 38 C.F.R. § 3.317.  The grant of presumptive service connection as due to a qualifying chronic disability renders moot other theories of service connection.


ORDER

Entitlement to service connection for a right knee disability is granted.  


REMAND

In evaluation of joint disabilities, range of motion testing for pain must be conducted in active motion, passive motion, and in weight-bearing and nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The Veteran was provided VA examinations in March of 2012 and November 2014.  Neither VA examination contains complete range of motion testing required by Correia.  As such they are inadequate for the Board's consideration.  Additionally, the private evaluations submitted by the Veteran do not contain range of motion testing that is compliant with the holding in Correia.  As such, a remand is required for a new VA examination.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a new VA examination to determine the current severity of his lumbar spine disability.

The examiner must test lumbar range of motion for pain in active motion, passive motion, weight-bearing, and nonweight-bearing.  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 this is so.

2.  Readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or 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.



____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs