Citation Nr: 21001815 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-30 826 DATE: January 11, 2021 REMANDED Entitlement to service connection for left wrist tendonitis is remanded. Entitlement to service connection for left thigh weakness, pain, and atrophy is remanded. Entitlement to service connection for right thigh weakness, pain, and atrophy is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with honorable service from February 2008 to May 2011, with an earlier period of uncharacterized service from May to June 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision. The Veteran testified before the undersigned during a January 2019 hearing. 1. Entitlement to service connection for left wrist tendonitis is remanded. During his January 2019 Board hearing, the Veteran identified relevant outstanding private treatment records, specifically treatment records from Florida in 2011 related to his left wrist. A remand is required to allow VA to obtain authorization and request these records. Furthermore, though a February 2015 VA examiner addressed the Veteran’s left wrist and found no evidence of a disability warranting a diagnosis, a new medical opinion is necessary because the evidence of record shows the Veteran has consistently reported recurring left wrist pain throughout the appeal period and no VA examiner has opined whether the Veteran’s left wrist pain is productive of functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment). 2. Entitlement to service connection for left thigh weakness, pain, and atrophy is remanded. 3. Entitlement to service connection for right thigh weakness, pain, and atrophy is remanded. The Veteran contends he has experienced muscle atrophy in his bilateral thighs since having dysentery while in active service, resulting in frequent pain and weakness. A February 2015 VA examination hip and thigh condition disability benefits questionnaire (DBQ) addressed the Veteran’s service-connected right hip disability but did not provide any opinion regarding the Veteran’s bilateral thigh symptoms or the history of complaints of muscle atrophy shown by the medical evidence of record at the time of the exam. Physical therapy notes from early 2011 before the Veteran’s discharge from military service show he was experiencing knee pain with muscle weakness in the lower extremities, and an April 2011 letter from the Veteran’s physical therapist indicates that, despite improved leg strength, the Veteran continued to fatigue very quickly and had limited endurance that was not normal for a man of his age and fitness level. At his January 2019 Board hearing, the Veteran testified that he received treatment at the Andrews Institute in Florida for his thigh condition, including examinations for possible nerve damage. While the Veteran’s file contains some records from the Andrews Institute, including a May 2013 treatment note containing complaints of a four-year history of fatigue and the inability to develop muscle and strength in the vastus medialis and adductor longus, these records do not contain the results of the neurologic testing that was recommended as part of this treatment. The Board notes the Veteran’s service records show he served in Iraq from October 2009 to August 2010. Based on this service and the presence of undiagnosed conditions characterized by muscle pain and weakness with chronic fatigue, the Board finds consideration of the Veteran’s condition under 38 C.F.R. § 3.317 has been raised by the record. For purposes of 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 (MUCMI); 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. Disabilities that have existed for 6 months or more and those disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic under the regulation. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A MUCMI is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(ii). It means 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. A chronic multisymptom illness will not be considered medically unexplained when both the etiology and the pathophysiology of the illness is partially understood. 38 C.F.R. § 3.317(a)(2)(ii). The determination of whether the illness is medically unexplained is particular to the individual Veteran in each case. See Stewart v. Wilkie, 30 Vet. App. 383, 391(2018). For these reasons, the Board finds a remand is necessary to ensure VA has obtained all private treatment records from the Andrews Institute related to the Veteran’s thigh condition. Furthermore, a remand is necessary to obtain VA medical opinions that fully address the Veteran’s contentions as outlined above. 4. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was initially provided a VA examination for his hearing loss in February 2015; however, though the test showed the Veteran experienced bilateral hearing loss, the examiner indicated the results were not valid for rating purposes due to high variability on re-testing. A subsequent examination in July 2015 found the Veteran did not having hearing loss in either ear for VA purposes based on the criteria in 38 C.F.R. § 3.385. Since this exam, the Veteran has submitted several statements from friends and family who assert they have observed the Veteran’s hearing difficulties since his discharge from active service. The Veteran also testified at his January 2019 Board hearing that the VA test results showing he does not have a current hearing loss disability are not an accurate reflection of his current condition. Based on this evidence, the Board finds a new VA examination is warranted to clarify whether the Veteran has a current hearing loss disability for VA purposes and, if so, to determine the etiology of the hearing loss. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the Andrews Institute and any other private treatment providers who have treated his claimed conditions since service, to include the facility where he obtained emergency treatment for his wrist identified in his January 2019 Board testimony. Make two requests for the authorized records from the identified facilities, unless it is clear after the first request that a second request would be futile. 2. After all available records have been obtained and added to the Veteran’s file, forward the claims file to an appropriate clinician to determine whether the Veteran’s current left wrist and bilateral thigh conditions are related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether the Veteran has a diagnosed left wrist, right thigh, and/or left thigh disability that is at least as likely as not (50 percent or greater probability) the result of disease or injury in active duty service. Please note that pain alone can be a disability for VA compensation purposes even without diagnosed underlying pathology so long as the pain results in functional impairment of earning capacity. Therefore, if the Veteran does not have a diagnosed disability of the left wrist or left or right thigh, the examiner is asked to determine if the Veteran’s symptoms of left wrist or left or right thigh pain or weakness result in functional loss. If so, the examiner is asked to opine as to whether it is at least as likely as not that the pain or weakness that results in functional loss is related to military service. If the examiner determines the Veteran’s symptoms, including pain, weakness, fatigue, and muscle atrophy, are objectively demonstrated but not attributable to a known diagnosis, the examiner should specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness, as established by history, physical examination, and clinical tests and notations. As to any diagnosed disability (including pain that results in functional impairment of earning capacity), is the etiology OR pathophysiology of the condition not understood AT ALL as to this particular Veteran? As to any diagnosed disability (including pain that results in functional impairment of earning capacity), if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to this particular Veteran, is it at least as likely as not that the diagnosed condition is attributable to service? The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. For purposes of this examination, the examiner must consider the following: “Medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or cause that is characterized by overlapping signs and symptoms and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. “Objective indications of 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including conceded noise exposure during military service. The examiner should focus specifically on whether the noise exposure in service is the cause of any current hearing impairment. Facts and medical principles relied on to arrive at an opinion should be set forth, including any principles relating to the possibility of a delayed onset of loss of acuity due to noise exposure in service. In other words, if the examiner finds that current hearing loss is not related to acoustic trauma in service solely because normal hearing was noted upon discharge, the examiner MUST explain the significance of normal hearing upon discharge and why this would preclude the current hearing loss from being related to acoustic trauma in service. The examiner should also address the lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. (Continued on the next page)   All opinions must be accompanied by an explanation. The lack of hearing loss documented in service cannot, standing alone, serve as the basis for a negative etiology opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.