Citation Nr: 20006595 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 17-34 091 DATE: January 29, 2020 REMANDED Entitlement to a rating in excess of 20 percent for lumbar strain and degenerative arthritis is remanded. Entitlement to a compensable rating for left knee ligament strain/leg is remanded. Entitlement to service connection for painful joints, to include as due to an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from February 1988 to July 1991. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 20 percent for lumbar strain and degenerative arthritis. The Veteran contends that he is entitled to a higher rating than the 20 percent currently assigned for his lumbar disability. The Board notes that the Veteran was last afforded a VA examination for compensation and pension purposes in August 2015. Since this examination, the Veteran has stated that his symptoms have worsened. The Veteran has reported on his Notice of Disagreement (NOD) and substantive appeal (VA Form 9) that he has chronic back pain, an abnormal gait, and has to constantly wear a back brace to function. In addition, he reported being totally immobilized and had to miss work due to his back symptomology. This evidence demonstrates to the Board that the Veteran’s symptoms may have worsened since the last VA examination. Accordingly, a remand is necessary for a new VA examination to determine the current severity of his service-connected lumbar disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In addition, the Veteran has stated that he has undergone additional medical treatment related to his claims. On remand, the RO should request and associate these records with the claims file once they have been identified by the Veteran. 2. Entitlement to a compensable rating for left knee ligament strain/leg. The Veteran contends that he is entitled to a compensable rating for his service-connected left knee disability. The Board notes that the Veteran was last afforded a VA examination for compensation and pension purposes in August 2015. Since this examination, the Veteran has stated that his symptoms have worsened. The Veteran has reported on his NOD and VA Form 9 that he has painful knee motion, knee instability (which required the use of a knee brace for support) and weakness in the knee. This evidence demonstrates to the Board that the Veteran’s symptoms may have worsened since the last VA examination. Accordingly, a remand is necessary for a new VA examination to determine the current severity of his service-connected left knee disability. See Green. 3. Entitlement to service connection for painful joints, to include as due to an undiagnosed illness. The Veteran contends that he currently experiences painful joints that resulted from his exposure to environmental hazards while stationed in Iraq during Operation Desert Storm. The Veteran’s service records show that the Veteran is a Gulf War Veteran. Pursuant to applicable law and regulations, VA has authorized the payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of disability of 10 percent or more not later than December 31, 2021. Under 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection for infectious diseases. The Veteran underwent a VA examination in August 2015. The examiner noted the Veteran’s painful joint complaints in his knees, back, and elbows. The examiner then gave a negative opinion that the painful joints were the result of military service. The examiner noted that the Veteran’s painful joints were the result of chronic musculoskeletal issues related to his back and left knee (which he is already service-connected for). The Veteran has stated that he has had chronic pain in his back, both knees, both ankles, and both arms (including his wrists and elbows) since his Gulf War service. In his June 2017 VA Form 9, the Veteran stated that he’s had to wear braces on his elbows, knees, back, ankles, and wrists. The Board notes that diagnoses were not provided for the Veteran’s reported right knee pain, pain in his bilateral ankles, and bilateral wrists. The Board finds an examination should be afforded that discusses these complaints and provides an opinion regarding the etiology of these reported symptoms. As such, the matter must be remanded to conduct new VA examination. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any outstanding, relevant VA and private treatment records. Ask the Veteran to identify private treatment records that may be relevant and obtain appropriate release of private treatment records where appropriate. 2. Schedule the Veteran for VA examination(s) to determine the current severity of his service-connected lumbar spine and left knee conditions. The claims file must be made available to the examiner(s) and the claims file must be reviewed by the examiner(s). Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner(s) must specifically provide an opinion regarding whether the Veteran’s conditions would result in additional functional limitations during periods of flare-ups. If the examination(s) is not conducted during a period of a flare-up, the examiner(s) must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran’s lay statements and medical evidence of record. If the examiner(s) is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. 3. Schedule the Veteran for VA examination in connection with the service connection claim for his reports of bilateral wrist, bilateral ankle, and right knee pain. The claims folder must be provided to and reviewed by the examiner as part of the examination. The examiner is asked to address each of the following questions: (A.) Whether any of the Veteran’s reported bilateral wrist, bilateral ankle, and right knee pain is attributable to any known clinical diagnosis. (B.) For any identified diagnoses, the examiner should opine as to whether is it at least as likely as not (a 50 percent probability or greater) that such disability manifested in service or is otherwise related to service, to include as due to his presumed environmental exposures experienced during service in Southwest Asia. (C.) Alternatively, if any of the Veteran’s symptoms cannot be attributed to a known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of chronic disability resulting from undiagnosed illness related to the Veteran’s Southwest Asia service, or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. If the Veteran’s symptoms are found to represent an objective indication of chronic disability resulting from either an undiagnosed illness or a chronic multisymptom illness, the examiner should also describe the extent to which the illness has manifested. (Continued on the next page)   The examiner must provide a detailed rationale for any opinion. The Veteran and other lay persons are competent to report on his history of observable symptoms and their reports must be considered. If the examiner rejects their lay reports, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.