Citation Nr: 18155835 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-16 947 DATE: December 6, 2018 ORDER Service connection for left knee pain is granted. REMANDED The issue of service connection for a lumbar spine (back) disorder is remanded. The issue of service connection for a right wrist disorder is remanded. FINDING OF FACT The Veteran has a chronic left knee undiagnosed disability characterized by pain. CONCLUSION OF LAW The criteria to establish service connection for an undiagnosed illness of the left knee have been met. 38 U.S.C. §§ 1110, 1117, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from May 1988 to September 1991; during May 1992; and from September 2003 to October 2004. He also served in the California Army National Guard and the U.S. Army Reserve. He served in Southwest Asia. In April 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Persian Gulf Veteran with a qualifying chronic disability that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a). A qualifying chronic disability is one that cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a). Qualifying chronic disabilities, including those that result from (1) an undiagnosed illness, (2) a medically unexplained chronic multi symptom illness (MUCMI) (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulations, warrant a presumption of service connection. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a). An MUCMI is a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a). Signs and symptoms of an undiagnosed illness or MUCMI include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs and 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, and menstrual disorders. See 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). Pain, such as muscle pain or joint pain, may establish an undiagnosed illness that causes a qualifying chronic disability. Objective indications of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other, non-medical indicators that are capable of independent verification, such as time lost from work, evidence that the Veteran sought treatment for his symptoms, and changes in his appearance, physical abilities, and mental or emotional attitude. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014); see also 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Objective medical evidence is not required for an award of service connection under 38 U.S.C. § 1117. Veterans are competent to report signs or symptoms without the need for any medical verification or etiological opinion. Veterans, spouses, family members, and friends are all competent to report objective signs and symptoms that are capable of lay observation. Symptoms that are capable of lay observation are presumed to be related to service. See Gutierrez v. Principi, 19 Vet. App. 1 (2004). VA treatment records indicate that the Veteran was treated for left knee pain from January to August 2010, including participation in physical therapy. He has never been diagnosed with a left knee disorder. The report of an August 2018 VA examination expressly states that the Veteran had no left knee diagnosis. As the Veteran served in Southwest Asia, he is entitled to the presumptions in 38 U.S.C. § 1117. The record indicates that there is objective evidence of a chronic pain disability for which there is no diagnosis. Therefore, service connection is warranted and the claim is granted. REASONS FOR REMAND 1. The issue of service connection for a lumbar spine (back) disorder is remanded. 2. The issue of service connection for a right wrist disorder is remanded. The matter is REMANDED for the following action: 1. Reasons for the remand: In August 2017, the Board directed the RO to contact the National Personnel Records Center (NPRC), the California State Office of the Adjutant General, and/or the appropriate service entity to verify the Veteran’s complete periods of service, including dates of active duty, active duty for training, and inactive duty for training. The RO instead, obtained Leave and Earnings Statements from the Defense Finance and Accounting Services (DFAS) and records related to pay—but never verified the dates of his different periods of service. Therefore, remand is necessary. Remand is also necessary to obtain new VA wrist and lumbar spine examinations because the August 2018 examinations are inadequate. The lumbar spine examination report states that the Veteran had only one diagnosis, despite treatment records indicating that he had multiple diagnoses. The examiner also stated that the disorder was congenital and not aggravated by service. However, the Veteran is presumed sound on service entry and, therefore, remand is necessary for a medical opinion that addresses the questions the Board asked in its August 2017 remand. A new VA wrist examination is necessary because the August 2018 examiner stated that the Veteran had no diagnosis and, therefore, did not provide a nexus opinion. A June 2010 VA examination and radiology report stated, however, that the Veteran had periarticular osteopenia. The August 2018 examiner opined that the June 2010 diagnosis must have been in error because he no longer had the disorder. As the Veteran had a diagnosed disorder during the pendency of the appeal, remand is necessary to obtain a nexus opinion. The RO’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). 2. Contact the NPRC, the California State Office of the Adjutant General, and/or the appropriate service entity and request that it (1) verify the Veteran’s complete periods of active service, active duty, active duty for training, and inactive duty for training with the U.S. Army Reserve and the California Army National Guard and (2) forward all available service treatment records (STRs) not already of record for incorporation into the record. THE RO MUST ASCERTAIN THE EXACT DATES THE VETERAN HAD EACH TYPE OF SERVICE. 3. AFTER COMPLETING THE ABOVE DEVELOPMENT, schedule the Veteran for a VA wrist examination WITH AN EXAMINER OTHER THAN THE ONE WHO PROVIDED THE AUGUST 2018 EXAMINATION to obtain an opinion as to the nature and etiology of a wrist disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address each of the following: (a.) Whether any diagnosed right wrist disorder, including periarticular osteopenia, originated in service or was caused by any in service event, injury, disease, or disorder. (b.) Whether the Veteran has a right wrist diagnosis, including periarticular osteopenia, without conclusive pathophysiology or etiology. (c.) Whether the Veteran has right wrist signs or symptoms that are not associated with any diagnosis. (d.) Whether the Veteran’s reports of in-service wrist pain were the first manifestations of his current wrist disorder, including periarticular osteopenia. The examiner’s attention is drawn to the following: *STRs: --May 2003 physical examination for service entrance indicating that upper extremities were normal, but noting a left wrist injury. STRs Volume 1, p. 76-77. --May 2003 report of medical history indicating painful shoulder, elbow, or wrist, indicating swollen or painful joint(s), and stating that the Veteran fell on his wrist, was advised he may need physical therapy, and that his wrist is in constant pain. STRs Volume 1, p. 80-81. --May 2003 STR describing a left wrist injury, but not mentioning a right wrist injury. STRs Volume 1, p. 57. --October 2003 pre-deployment health assessment which states that the Veteran hurt his wrist during his last period of active duty. STRs Volume 1, p. 51. --August 2004 post-deployment health assessment where the Veteran indicated that he had swollen, stiff, or painful joints and muscle aches. STRs Volume 1, p. 38. *February 2010 application for service connection where the Veteran wrote that his wrist injury occurred while doing exercises in service when he had to land on his wrists and hands. *April 2010 statement where the Veteran wrote that he injured his wrist while in service and went to sick call at that time but was just given ibuprofen and sent back to work. *June 2010 VA examination and radiology report which showed periarticular osteopenia of the wrist, indicated decreased range of motion, and where the Veteran was diagnosed with wrist sprain. *February 2011 VA treatment record addendum stating that it is more likely than not that the Veteran’s wrist disorder was caused by service-related activities while on active duty. VBMS Entry 2/1/2011, p. 4. *April 2017 Board hearing testimony where the Veteran described multiple in-service injuries to his wrist. 4. AFTER COMPLETING THE ABOVE DEVELOPMENT, schedule the Veteran for a VA lumbar spine examination WITH AN EXAMINER OTHER THAN THE ONE WHO PROVIDED THE AUGUST 2018 EXAMINATION to obtain an opinion as to the nature and etiology of the Veteran’s lumbar spine disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address each of the following: (a.) Whether each lumbar spine disorder originated in service or was caused by any in service event, injury, disease, or disorder. (b.) Whether the Veteran has a lumbar spine diagnosis without conclusive pathophysiology or etiology. (c.) Whether the Veteran has lumbar spine signs or symptoms that are not associated with any diagnosis. (d.) Whether the Veteran’s reports of in-service back pain were the first manifestations of his current lumbar spine disorders. The examiner MUST address all lumbar spine disorders which have been diagnosed at any point during the pendency of this appeal. The Veteran is presumed sound on entry into service and, therefore, an opinion addressing in-service aggravation or stating that any lumbar spine disorder began prior to service is inadequate. The examiner’s attention is drawn to the following: *STRs: --May 2003 physical examination for service entrance report which states that the Veteran’s back was normal. STRs Volume 1, p. 76-77. --May 2003 report of medical history where the Veteran indicated that he had back pain and swollen or painful joints and on which he wrote that his back was in pain and he had been lifting heavy equipment in the motor pool. STRs Volume 1, p. 80-81. --August 2004 post-deployment health assessment on which the Veteran wrote that he had back pain and on which it was noted that referral was indicated for his back pain. STRs Volume 1, p. 44. --August 2004 post-deployment health assessment on which the Veteran indicated that he had swollen, stiff, or painful joints; back pain; and muscle aches. STRs Volume 1, p. 38. *January 2010 VA treatment record stating that the Veteran had chronic low back pain since he returned from service in Southwest Asia where he served in the infantry and was jumping, crouching, and running with heavy gear. VBMS Entry 3/5/2010, p. 4. *February 2010 application for service connection stating that his back disorder occurred after he received spinal anesthesia during in-service surgeries, including when he was assigned to the light infantry unit but was required to do heavy lifting. *February 2010 spine X-ray study that stated a diagnosis of bilateral L5 pars interarticularis defects with 1.5-centimeter L5 anterolisthesis. VVA 5/21/2013, p. 21. *April 2010 statement where the Veteran wrote that that he injured his back while running, jumping, and shooting during service. *August 2010 stating that the Veteran had low back pain, L5 anterolisthesis, with pain radiating to his lower extremities and stating a diagnosis of low back pain. VVA Entry 5/21/2013, p. 12-13. *December 2010 VA treatment record stating a diagnosis of Grade I anterolisthesis of L5 on S1 with endplate Modic changes and pars defect. VVA Entry 7/11/2014, p. 28. *February 2011 VA treatment record addendum stating that it is more likely than not that the Veteran’s back disorder was caused by service-related activities while on active duty. VBMS Entry 2/1/2011, p. 4. *January 2012 VA treatment record stating that the Veteran had chronic low back pain for many years, stating a diagnosis of chronic back pain and that the Veteran should continue rehabilitation and use of a heating pad. VVA Entry 5/21/2013, p. 1-2. *March 2017 VA treatment record stating that the Veteran’s back pain began in the 1990s when he was in the military. VBMS Entry 7/16/2018, p. 8. *April 2017 Board hearing testimony where the Veteran stated that he had recently been diagnosed with a “slipped disc” in his low back and describing in-service injuries to his back. *August 2018 VA examination report stating a diagnosis of lumbar spondylolisthesis and including an X-ray study report that indicates that the Veteran likely had chronic spondylolysis and possibly a congenital segmentation anomaly. 5. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel