Citation Nr: 18145917 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-01 123 DATE: October 30, 2018 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a gastrointestinal disorder is denied. REMANDED Entitlement to service connection for joint pain of the bilateral shoulders is remanded. Entitlement to service connection for joint pain of the bilateral elbows is remanded. Entitlement to service connection for joint pain of the bilateral hands is remanded. Entitlement to service connection for joint pain of the bilateral feet is remanded. FINDINGS OF FACT 1. The Veteran’s right and left knee symptoms have been attributed to a known etiology, are not symptoms of an undiagnosed or medically unexplained chronic multisymptom illness, and are not etiologically related to his active duty service. 2. The Veteran’s gastrointestinal symptoms have been attributed to a known etiology, are not symptoms of an undiagnosed or medically unexplained chronic multisymptom illness, and are not etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder, to include as a qualifying chronic condition under 38 C.F.R. § 3.317, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for entitlement to service connection for a left knee disorder, to include as a qualifying chronic condition under 38 C.F.R. § 3.317, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for entitlement to service connection for a gastrointestinal disorder, to include as a qualifying chronic condition under 38 C.F.R. § 3.317, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to June 1986 and from November 1990 to May 1991. The Board observes that the informal hearing presentation submitted by the Veteran’s representative in September 2018 discussed issues not addressed in this decision. Specifically, the Veteran’s representative included the issues of entitlement to service connection for neurological problems of the bilateral upper and lower extremities as well as entitlement to service connection for a respiratory condition as issues before the Board in the present appeal. Although those issues were included by the RO in the November 2014 statement of the case, those issues were not perfected by the Veteran in his January 2015 substantive appeal, which perfected only the issues of entitlement to service connection for gastrointestinal problems, entitlement to service connection for right and left knee disorders, and entitlement to service connection for joint problems, generally. Accordingly, as entitlement to service connection for neurological problems of the bilateral upper and lower extremities and entitlement to service connection for a respiratory disorder were not timely perfected by the Veteran, they are not before the Board at this time. With regard to the claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the Veteran’s claims, letters dated in May 2012, August 2012, and December 2012 satisfied the duty to notify provisions. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev’d on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The Veteran’s service treatment records and identified private treatment records have been obtained. 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The RO obtained a VA examination and opinion addressing the etiology of the Veteran’s right and left knee symptoms as well as his gastrointestinal symptoms in August 2012. Review of the August 2012 examination report reflects that it is adequate in this case, as it was based on a review of the claims file, including the Veteran’s lay statements of record. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, the opinions provided are based upon an accurate review of the facts in this case and provide sufficient explanation and rationale to support the opinions. Accordingly, the Board finds the August 2012 VA opinions to be adequate. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that service connection for a gastrointestinal disorder and for right and left knee disorders is warranted. Specifically, he alleges that these symptoms constitute a qualifying chronic disability and that service connection is warranted on a presumptive basis under 38 C.F.R. § 3.317(a) based upon the Veteran’s service in the Persian Gulf War. Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either 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% or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834 -81836 (Dec. 29, 2011). Objective indications of a chronic disability include both ‘signs’, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317 (a)(3-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). The Veteran’s military records reflect that he had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. Entitlement to service connection for a right knee disorder, a left knee disorder, and a gastrointestinal disorder In an August 2013 statement, the Veteran reported that his knees began bothering him immediately after service, but that he self-medicated the pain. He noted that he finally saw a specialist for his knee pain in 2011 and that, thereafter, he underwent right knee surgery. He indicated that he has no cartilage in his knees. With regard to his gastrointestinal disorder, the Veteran noted that he has symptoms of diarrhea and blood in the stool, which became debilitating in 2009. He noted that he saw a specialist who diagnosed diverticulitis. In February 2012 and May 2012 statements, the Veteran’s wife reported that the Veteran has had fatigue, muscle and joint pain, gastrointestinal problems, neurological symptoms, and mood disturbances since returning home from service. In an August 2013 statement, S.H. reported that the Veteran experienced joint pains in the knees and stomach problems since 1991. The Veteran’s service treatment records are silent for any notations of, complaints of, or treatment for right or left knee pain or gastrointestinal symptoms. Post-service private treatment records beginning in 2009 reflect complaints of abdominal discomfort for three weeks. An October 2009 computed tomography (CT) scan of the abdomen showed diverticulitis. Private treatment records dated in 2012 note the Veteran’s reports of right knee pain for one year. In January 2012, the Veteran indicated that he remembered running across a field, kicking a ball with his son, and popping his knee. In February 2012, the Veteran underwent a right knee arthroscopy, debridement, and chondroplasty of the trochlea. The postoperative diagnosis was right knee trochlear injury and trochlear degenerative joint disease, status post arthroscopic debridement and chondroplasty of the trochlea. In August 2012, the Veteran underwent a VA examination. The examiner diagnosed status post right knee arthroscopy with residual scars and left knee nonaggressive appearing sclerotic density involving the left femoral condyles. After conducting a physical examination and interview of the Veteran and reviewing the Veteran’s claims file, the examiner opined that the Veteran’s right and left knee disorders were diagnosed disorders with known etiologies, and that they were not related to his active duty service. The examiner explained that the degenerative changes of both knees were more likely than not related to wear and tear caused by his post-service occupation, and that neither knee condition was related to environmental hazards associated with his service in the Persian Gulf. The August 2012 examiner also diagnosed diverticulitis and opined that diverticula of the sigmoid colon is an anatomic abnormality with a known etiology and is not otherwise related to the Veteran’s active duty service, to include any environmental hazard. Based on the competent and credible evidence of record, the Board finds that the Veteran’s right and left knee symptoms and his gastrointestinal problems have been competently and credibly associated with known etiologies and diagnoses. The only medical evidence discussing the etiology of the Veteran’s knee symptoms is the August 2012 VA opinion which attributes his symptoms to degenerative changes which are more likely than not associated with wear and tear from his post-service occupation. The August 2012 VA opinion also reflects that the Veteran’s gastrointestinal symptoms are due to diverticulitis which is an anatomic abnormality with a known etiology. Because the only competent medical evidence of record attributes the Veteran’s right and left knee symptoms and gastrointestinal symptoms to known etiologies and diagnoses, service connection based on the laws and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. To the extent that the Veteran has asserted that his right and left knee joint symptoms and gastrointestinal symptoms are symptoms or manifestations of an undiagnosed or medically unexplained chronic multisymptom illness, the Veteran is not competent to state that these complaints are symptoms of an undiagnosed illness or provide opinions as to their etiology. Such an opinion requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the statements are not competent, the Board finds they are not entitled to probative weight. Turning to direct service connection, the probative evidence in the claims file does not show that the Veteran’s right or left knee disorders or his diverticulitis is directly related to active duty service. Initially, the Board observes that the earliest evidence of diverticulitis is dated in 2009, 18 years after service discharge, and the earliest evidence of knee symptoms is dated in 2012, 21 years after service discharge. Moreover, there is no medical evidence in the claims file suggesting a link between the Veteran’s knee disorders or his diverticulitis and his active duty service. The Veteran’s service treatment records do not show any complaints of or treatment for knee or gastrointestinal symptoms. Further, the August 2012 VA examiner concluded that the Veteran’s right and left knee disorders and diverticulitis were not etiologically related to his active duty service. The Board finds the August 2012 VA opinion to be probative, as it is based upon review of the Veteran’s claims file and provides supporting rationale with discussion of the pertinent facts. The Board acknowledges the Veteran’s contentions that his knee symptoms and gastrointestinal symptoms began soon after discharge, and that they are therefore etiologically related to service. Lay evidence can be competent and sufficient 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 (Fed. Cir. 2007). The Veteran’s opinions are outweighed in probative value by the reasoned and expert conclusions provided by the VA examiner, who is a medical professional. Further, the Veteran’s lay statements that he has experienced knee and gastrointestinal symptoms since soon after discharge are contradicted by his statements in the medical records, which report the onset of knee pain in 2011 and the onset of gastrointestinal symptoms in 2009. Thus, the Board does not afford any probative value to the Veteran’s statements regarding the continuity of his symptoms since service discharge. The preponderance of the evidence weighs against the Veteran’s claims for service connection. Accordingly, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claims are denied. REASONS FOR REMAND Entitlement to service connection for joint pain of the bilateral shoulders; entitlement to service connection for joint pain of the bilateral elbows; entitlement to service connection for joint pain of the bilateral hands; and entitlement to service connection for joint pain of the bilateral feet are remanded. The Veteran contends that he experiences joint pain of the bilateral elbows, shoulders, hands, and feet, and that these symptoms are manifestations of an undiagnosed illness or chronic multisymptom illness associated with his service in the Persian Gulf. As discussed above, the Veteran is a Persian Gulf Veteran. The Veteran has not been afforded a VA examination with regard to these claims to determine the etiology of these symptoms. Accordingly, a VA examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA Gulf War Illness examination by a clinician who is capable of determining the current nature and likely etiology of the Veteran’s joint pain of the bilateral shoulders, bilateral elbows, bilateral hands, and bilateral feet. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed symptoms represent a medically unexplained chronic multisymptom illness or an undiagnosed illness; and, whether it is at least as likely as not that the Veteran’s reported symptoms represent a cluster of signs or symptoms typically seen in Gulf War Veterans. The examiner is advised that the Veteran is competent to report observable symptomatology, and that the Veteran’s lay statements should be presumed to be credible for the purposes of this examination only. A complete rationale for all opinions must be provided. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel