Citation Nr: 1805277 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-17 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for left knee disability, to include as due to undiagnosed illness. 2. Entitlement to service connection for bilateral foot disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to June 1991, including service in Saudi Arabia from October 1990 to April 1991 during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran and his spouse testified at a hearing before a Decision Review Officer (DRO) at the RO in December 2015. A transcript of the hearing is of record. The Board notes that, although the RO adjudicated and denied claims for service connection for degenerative joint disease of the left knee and bilateral pes planus, the evidence of record reflects additional diagnoses relating to the Veteran's left knee and bilateral feet. To encompass any diagnosed disabilities, the Board has expanded the claims, as reflected on the title page. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for left knee and bilateral foot disabilities. The Veteran reports that his left knee and bilateral foot problems began in service, and that his current conditions are related to service. The Veteran has also reported environmental hazards from service in Saudi Arabia during the Persian Gulf War. See July 2014 Persian Gulf Registry Code Sheet. The Veteran has also requested consideration of whether his left knee condition is due to an undiagnosed illness. See August 2014 Veteran's Statement. Service connection is provided on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active 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, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2017). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The "Southwest Asia theater of operations" refers to Iraq, Kuwait, 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). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 C.F.R. § 3.2. A qualifying chronic disability is an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms. 38 U.S.C. § 11117 (a)(2) (2012). During the December 2015 DRO hearing, the Veteran reported that he injured his left knee while serving at Fort Leonard Wood but dealt with it by taking over the counter pain medication instead of going to sick call. He reported that he started favoring one side and then the other side and that his condition worsened over the following 10 years. He reported that he eventually sought treatment during service and was told to use heating pads. He reported a diagnosis of arthritis, and also stated that he was told he could have fibromyalgia. See Hearing Tr., pp. 4-9. As to his feet, the Veteran testified that his feet began to bother him during training because of marching and running, that he sought treatment and was told to soak his feet, that he was allowed to wear tennis shoes instead of boots for a few days, that he had inserts for his boots, and that he learned to deal with the pain. See Hearing Tr., pp. 10-11. VA treatment records show bilateral pes planus, degenerative changes of the bilateral feet with hallux valgus deformities, degenerative joint disease of the left knee, and a history of Osgood Schlatter disease. See June 2009 VA Treatment Record (noting bilateral degenerative changes with hallux valgus deformities, bilateral pes planus, bilateral posterior and plantar calcaneal spurs); March 2012 VA Treatment Record (noting Osgood Schlatter disease); March 2013 VA Treatment Record (noting that left knee x-rays were consistent with degenerative joint disease); June 2014 VA Treatment Record (noting degenerative changes in the left knee with anterior tibial spurring and superior patellar spur formation). The Veteran has not undergone VA examination in relation to his left knee and bilateral foot disability claims. VA has a duty to provide a medical examination when it is deemed necessary to make a decision on a claim if the evidence (including lay statements of the appellant) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of the disability; if the evidence indicates that his disability or symptoms may be associated with the appellant's service or another service-connected disability; and there is not sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence described above meets these requirements, as the Veteran's reports and medical records show current diagnoses and potential connections to service. Given these facts, VA examination is warranted to determine the nature of the Veteran's left knee and bilateral foot disabilities, and whether such disabilities started in service, manifested to a compensable degree within one year of separation from service, are related to service (to include the Veteran's reported in-service symptoms and in-service exposure to environmental hazards while serving in the Persian Gulf War), or are manifestations of a qualifying chronic disability. In his May 2012 claim, the Veteran reported that he received treatment for his left knee and bilateral foot conditions during service. The Veteran reported treatment for his foot condition while stationed at Fort Leonard Wood, Missouri, between 1987 and 1989. He reported treatment for his left knee condition while stationed at Fort Sam Houston, Texas, in 1985, treatment at Fort Leonard Wood, Missouri, between 1987 and 1989, and treatment in Hanau Germany in 1989. The Veteran's service personnel records show service in Germany from October 1986 to October 1988. The service treatment records in the Veteran's claims file do not show treatment for knee or foot conditions; however, they appear incomplete. For example, the Veteran's separation examination is missing. Accordingly, additional attempts should be made to obtain a complete copy of the Veteran's service treatment records. While on remand, the VA should obtain all outstanding VA treatment records, including VA treatment records from August 2016 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's service treatment records, including records from Fort Leonard Wood, Missouri, Fort Sam Houston, Texas, and Germany. If no additional records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. Document all efforts made in this regard. 2. Obtain any additional VA treatment records, including those dated from August 2016 to the present. 3. After associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination or examinations to address the nature and etiology of the Veteran's left knee and bilateral foot conditions. The examiner(s) should review the Veteran's electronic claims file in conjunction with the examination. After conducting any necessary tests, the examiner should: a) Identify all left knee disabilities found to be present at any time since May 2012. b) For each diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the diagnosis: i. had its onset in service; or ii. is otherwise related to any injury or disease that occurred in service, to include the Veteran's reported left knee problems during service and his reported exposure to environmental hazards from service in Saudi Arabia during the Gulf War. For any diagnosis of arthritis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the arthritis manifested to a compensable degree within one year of the Veteran's discharge from service (i.e., between June 1991 and June 1992). c) If there is no diagnosed disability that the Veteran's left knee symptoms can be attributed to, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. d) Identify all foot disabilities found to be present at any time since May 2012. e) For each diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the diagnosis: i. had its onset in service; or ii. is otherwise related to any injury or disease that occurred in service, to include the Veteran's reported foot problems during service and his reported exposure to environmental hazards from service in Saudi Arabia during the Gulf War. For any diagnosis of arthritis, the examiner shall opine as to whether it is at least as likely as not (50 percent probability or greater) that the arthritis manifested to a compensable degree within one year of the Veteran's discharge from service (i.e., between June 1991 and June 1992). For the opinions requested above, the examiner(s) should consider all pertinent medical and lay evidence, to include the Veteran's hearing testimony, including his report that he was told he could have fibromyalgia, a January 1985 service treatment record that notes that the Veteran was unable to bear his weight equally due to pain from an injury, and a March 2013 VA treatment record which indicates that the Veteran reported his left knee has been aching since the 1980s. The examiner(s) should set forth the complete rationale for all opinions. 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. 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 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). _________________________________________________ V. Chiappetta 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).