Citation Nr: 1803502 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-17 597A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an upper back disability, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 2. Entitlement to service connection for a left knee disability, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 3. Entitlement to service connection for a right knee disability, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 2005 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In addition to the claims on appeal, the Board notes that the Veteran originally perfected his appeals regarding his claims for service connection for neck and left hip disabilities. These claims were granted in a July 2017 rating decision, and are therefore no longer before the Board. The Veteran initially requested a Board hearing in his July 2012 VA Form 9. However, in correspondence received in September 2014 and January 2015, he withdrew his hearing request. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he incurred upper back and bilateral knee disabilities while deployed overseas, including as a result of wearing heavy equipment, rough landings in airborne jumps, and various military exercises or missions. He also asserts that these disabilities may be secondary to his service-connected left hip, left thigh, lumbar, and/or cervical spine disabilities. See Notice of Disagreement (March 2011); VA Form 9 (July 2012). The record shows that the Veteran served in the Southwest Theater of Operations during the Persian Gulf War, and as such may be entitled to compensation for an undiagnosed illness or medically unexplained chronic multisymptom illness. See 38 U.S.C. § 1117(a)(2)(A), (B) (2012); 38 C.F.R. § 3.317(a)(2)(A), (B) (2017). Signs or symptoms of such illness include joint pain. 38 C.F.R. § 3.317(b)(5), (9). The Board further notes that the Veteran was awarded the Combat Infantryman Badge, indicating combat service. Thus, his lay reports of in-service symptoms (including his reports of upper back and bilateral knee pain) are both competent and credible. See 38 U.S.C. § 1154(b). In its November 2016 remand, the Board noted that there was conflicting evidence as to whether the Veteran had received clinical diagnoses with regard to his upper back and knee symptoms. Notably, an August 2010 VA examination report showed no evidence of pathology, while the Veteran's private treatment notes and VA outpatient notes (including opinions provided by his VA physician) indicated ongoing treatment for upper back and knee pain. Accordingly, the Board directed the AOJ to schedule an examination "to determine whether the Veteran has undiagnosed illness or medically unexplained chronic multisymptom illness with regard to his claimed disabilities." The Board instructed the examiner/s to "consider any additional medical records obtained," as well as to provide opinions as to whether the claimed disabilities were secondary to any service-connected disability. On remand, VA spine and knee examinations were performed in April 2017; however, it appears a Gulf War examination was never scheduled. Moreover, the reviewing examiners do not appear to have discussed the medical evidence referenced by the Board, including the nexus opinions provided by the Veteran's VA physicians in August 2013, October 2013 (and, subsequently, in March 2017). Finally, there is no indication that the examiners provided substantive opinions regarding secondary service connection. The Board notes that a remand confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case must be REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran from December 2016 to the present. 2. Schedule the Veteran for a Gulf War examination with the appropriate specialist. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. If indicated, Spine and Knee examinations should also be scheduled to determine the nature and etiology of any current disabilities of the upper back and knees. After reviewing the entire claims file, the examiner should respond to the following: (a) Indicate whether the Veteran's documented upper back and bilateral knee symptoms either (i) can be attributed to known clinical diagnoses, or (ii) constitute undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to 38 C.F.R. § 3.317. (b) As to any clinically diagnosed disorders of the upper back and/or bilateral knees, opine as to whether it is at least as likely as not (50-percent probability or more) that such disorder/s were incurred in or aggravated during service, to include as a result of wearing heavy equipment, rough landings in airborne jumps, and military exercises and missions. (c) As to any clinically diagnosed disorders of the upper back and/or bilateral knees, opine as to whether it is at least as likely as not (50-percent probability or more) that any such disorder/s was caused or permanently aggravated by any service-connected disability, to include lumbar strain, cervical strain, left thigh impairment, and left hip strain. In formulating the requested opinions, the examiner should specifically discuss: * August 2010 and April 2017 VA examination reports * All relevant private and VA outpatient notes, including chiropractic notes indicating treatment for ongoing upper back and bilateral knee pain * August 2013, October 2013, and March 2017 nexus opinions provided by the Veteran's VA physicians * The Veteran's competent and credible reports of in-service joint pain 3. After completing all indicated development, readjudicate the claims in light of all the evidence of record, to include those provisions related to a combat Veteran, 38 U.S.C. § 1154(b). If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). 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). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).