Citation Nr: 18140091 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-44 174A DATE: October 2, 2018 ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for Gulf War Syndrome, undiagnosed illness, and medically unexplained chronic multi-symptom illnesses including dizziness and fatigue (Gulf War Syndrome). 3. Entitlement to service connection for a heart disability, claimed as coronary artery disease (CAD). REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for Gulf War Syndrome, undiagnosed illness, and medically unexplained chronic multi-symptom illnesses including dizziness and fatigue, is remanded. Entitlement to service connection for a heart disability, claimed as CAD is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to February 1979, from November 1990 to June 1991, and from January 1996 to September 1996, including service in Southwest Asia; he had additional service with the Army Reserve. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the October 2014 Statement of the Case (SOC), the RO did not specifically address a claim of "Gulf War Syndrome, undiagnosed illness, and medically unexplained chronic multi-symptom illnesses including dizziness and fatigue." However, a review of the SOC shows that the RO considered the applicable provisions relating to chronic multi-symptom undiagnosed illnesses in rendering a decision. See 38 C.F.R. § 3.317. To better comport with the allegations and the evidence, the Board has recharacterized the claims on appeal to include entitlement to service connection for “Gulf War Syndrome, undiagnosed illness, and medically unexplained chronic multi-symptom illnesses including dizziness and fatigue” and “a heart disability, claimed as CAD”. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the veteran’s description of the claim). The Veteran testified before the undersigned during a June 2018 videoconference hearing. A copy of the transcript is of record. During the hearing, the record was held open for 60 days to allow the submission of additional evidence; however, additional evidence was not submitted. The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. At the outset, the Board notes that during the June 2018 videoconference hearing, it was noted that the Veteran was submitting additional evidence. However, new evidence was not associated with the electronic claims file at the time of or following the hearing. Moreover, the Veteran’s representative indicated that Army Reserve records were not associated with the electronic record. Finally, the Veteran reported that he had an MRI completed two weeks prior to the hearing and had follow-up scheduled for the end of June; these records are not associated with the electronic claims file. As such, the Veteran should be afforded the opportunity to submit any evidence that was not associated with the record at the time of the June 2018 hearing, and a complete copy of the Veteran’s Army Reserve records and private or VA treatment records, to include the June 2018 MRI results, should be sought on remand. Bilateral Knee Disability The Veteran contends, and testified before the undersigned, that he had left knee surgery in 1989 and aggravated/injured his knees while loading and unloading (jumping in and out of) a cargo truck in service in 1990. Service treatment records show a September 1989 examination for commission in the Army Reserve in which his lower extremities were normal on clinical evaluation. A February 1990 private medical report noted that the Veteran was under care for a torn cruciate ligament and posterior capsule of the left knee, confirmed at arthroscopy in December of 1989. In a March 1991 redeployment examination, the Veteran’s lower extremities were normal on clinical evaluation; in a corresponding report of medical history, the Veteran complained of an occasional sore knee and noted his knee surgery in 1989. A left knee injury during deployment was also noted in an August 1996 report. The Veteran was afforded a VA Gulf War general medical examination in April 2014 in which the examiner diagnosed chronic intermittent pain in both knees, and noted the left knee arthroscopy in 1989. The examiner opined that the chronic left knee residual pain, status-post left meniscal repair was less than likely as not cause by or a result of “S/C”; the examiner stated that the injury was diagnosed during an inactive duty period. The Board finds that the Veteran should be afforded a new VA examination on remand as the April 2014 VA examiner’s opinion regarding the claimed knee disability is not responsive to the etiological question before the Board. The Board notes that a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-2003. Here, the Veteran was found qualified for his second period of service from November 1990 to June 1991. As such, the pertinent etiological question is whether any bilateral knee disability diagnosed during the pendency of this appeal clearly and unmistakably existed prior to the Veteran’s second period of service; if so, the examiner whether it is clear and unmistakable that such disorder did not undergo aggravation beyond its natural progression during the second period of service. Gulf War Syndrome The Veteran contends, and testified before the undersigned, that his dizziness and fatigue were part of a larger picture of Gulf War Syndrome. As noted above, the Veteran served in Southwest Asia. The Veteran submitted a statement from Dr. S.S. in August 2013 that noted his current treatment for dizziness and fatigue. The Veteran was afforded a VA Gulf War general medical examination in April 2014 in which the examiner opined that the Veteran did not have any undiagnosed illness or unexplained multi-symptom illness. The examiner also stated that the Veteran had chronic fatigue but did not have chronic fatigue syndrome. The Board notes that dizziness was not addressed in the examination. The Board finds that the Veteran should be afforded a new VA examination on remand as the April 2014 examiner did not address the Veteran’s claims of dizziness and provided conclusory opinions. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In fact, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). CAD The Veteran contends, and testified before the undersigned, that he started to have heart problems soon after his active deployment in 1996, but it was assessed as high cholesterol. The Veteran submitted a statement from Dr. S.S. in August 2013 that noted his current treatment for CAD. The Veteran was afforded a VA Gulf War general medical examination in April 2014 in which the examiner noted atherosclerotic cardiovascular disease diagnosed in 2001. The examiner stated that the Veteran was diagnosed with CAD in 2001, but at the present time, did not have any CAD or coronary artery ischemia. The Veteran submitted private treatment records in June 2014 that showed diagnoses of arteriosclerotic heart disease (ASHD), hypertensive heart disease, and mitral regurgitation. The private examiner advised the Veteran that his CAD/cardiovascular disease was as likely as not caused by his service in the Gulf War. However, the Board notes that no rationale was provided for this opinion. See Hernandez-Toyens, 11 Vet. App. 379, 382; Miller, 11 Vet. App. 345, 348. The Board finds that the Veteran should be afforded a new VA examination on remand to address the etiology of any heart problems diagnosed during the pendency of this appeal, to include whether he had CAD during the pendency of this appeal, from July 2013, and the diagnosed ASHD, hypertensive heart disease, and mitral regurgitation. Moreover, an examiner should address whether the Veteran’s heart problems, to include CAD, had their onset in or within one year of active duty. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to submit any evidence that was not associated with the record at the time of the June 2018 hearing. 2. Request copies from all appropriate sources of the Veteran’s complete service treatment and personnel records during his service with the Army Reserve. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 3. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims, to specifically include MRI results from June 2018. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 4. After the above development is completed, schedule the Veteran for a VA examination conducted by appropriate health care provider to determine the nature and etiology of his claimed bilateral knee disability. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: a. Opine whether any bilateral knee disability diagnosed during the pendency of this appeal clearly and unmistakably existed prior to the Veteran’s second period of service, from November 1990 to June 1991. b. If so, the examiner should provide an opinion as to whether it is clear and unmistakable that such disabilities did not undergo aggravation during the second or subsequent periods of service beyond its natural progression. c. If the examiner concludes that the bilateral knee disability did not clearly and unmistakable exist prior to the second period of service, the examiner should provide an opinion as to whether the disability is as likely as not etiologically related to service, to include the aforementioned August 1996 report of a left knee injury. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Schedule the Veteran for a VA examination conducted by appropriate health care provider to determine the nature and etiology of his claimed Gulf War Syndrome, undiagnosed illness, and medically unexplained chronic multi-symptom illnesses including dizziness and fatigue. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: a. Specify whether the Veteran's complaints of dizziness and fatigue are indicative of undiagnosed illness or chronic multi-symptom illness of the type contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. To this end, specifically indicate whether these symptoms, instead, are attributable to known clinical diagnoses. b. If no diagnosis is made accounting for these symptoms, the examiner therefore must reconcile such conclusion with the evidence of record detailing the Veteran's complaints. c. If the Veteran's dizziness and fatigue cannot be ascribed to any known clinical diagnosis, specify whether he 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. If the Veteran's dizziness and fatigue can be ascribed to a known clinical diagnosis, for each diagnosis, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed disability was incurred in service, or is otherwise etiologically related to service. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 382 (2011). 6. Schedule the Veteran for a VA examination conducted by appropriate health care provider to determine the nature and etiology of his claimed heart disability, claimed as CAD. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any heart problem diagnosed during the pendency of this appeal, to include any CAD present from July 2013 and the diagnosed ASHD, hypertensive heart disease, and mitral regurgitation, had their onset in or within one year of, or are otherwise etiologically related to, active service. The examiner must address the aforementioned June 2014 private opinion. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 382. (Continued on the next page)   7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel