Citation Nr: 21062359 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 14-44 174A DATE: October 7, 2021 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). ORDER Entitlement to service connection for a bilateral knee disability is granted. Entitlement to service connection for CAD is granted. REMANDED Entitlement to service connection for Gulf War Syndrome, undiagnosed illness, and medically unexplained chronic multi-symptom illnesses including dizziness and fatigue (Gulf War Syndrome) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral knee disability is related to his active service. 2. Resolving reasonable doubt in the Veteran's favor, his CAD is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2017). 2. The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. The Veteran testified before the undersigned during a June 2018 videoconference hearing. A copy of the transcript is of record. When this case was previously before the Board in October 2018, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. In light of the favorable determination contained herein with the issues decided below, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Service Connection Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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. He also testified before the undersigned that his knees caused him to retire from his job as an electrician. He stated that as an electrician he had to be up on ladders quite a bit, and his knee was essentially like a trick knee where if he hit it, he could fall from the ladder. The Board notes that in Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. VA examination and treatment records show diagnoses of bilateral knee pain. Moreover, VA examination in November 2019 showed that the examiner found that the knees impacted the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) The examiner noted that the Veteran stated that he took an early retirement as he had to climb ladders, walk long distances, and work overtime. Accordingly, the Board finds that Hickson element (1) is met. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, 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. Accordingly, Hickson element (2) is met. With respect to Hickson element (3), 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 noted in the October 2018 remand 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. As such, the negative opinions provided in April 2014 and October 2020 were not responsive to the etiological question before the Board. In response to the Board's remand, the Veteran was afforded a VA examination in November 2019 in which the examiner opined that it was at least as likely as not that the Veteran's knee disability existed prior to service, and it was at least as likely as not that the knee pain was aggravated beyond the natural progression. The examiner stated that the rationale was based on the medical records outlined in the examination report, history obtained from the Veteran, and examination. The examiner stated that it was at least as likely as not that the Veteran's knee pain was related to his military service. A VA opinion, without examination, was obtained in October 2020 in which the examiner stated that based on the Veteran's active service dates, it was less likely than not that his bilateral knee disability was related to his active military service or aggravated by military service. The examiner stated that service treatment records were silent for diagnosis and treatment for a knee condition. The Board notes that greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board acknowledges that the October 2020 examiner provided a negative etiological opinion. However, the VA examiner did not examine the Veteran and based the opinion on the lack of diagnosis and treatment for a knee condition in service. The Board notes that the mere absence of in-service evidence of a disability during service is not fatal to a service connection claim. See Ledford v. Derwinski,3 Vet. App. 87, 89 (1992). The Board finds that the VA examiner's opinion from November 2019 is competent and probative in providing a positive etiological opinion as it was rendered after evaluation of the Veteran, review of the Veteran's history, and is supported by Veteran's observations and allegations in regards to the factual origin of the disability during his active duty service. Therefore, a nexus is established, and the criteria of Hickson element (3) are met. Based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the bilateral knee disability is related to active service, and service connection is warranted. CAD The Veteran contends, and testified before the undersigned, that he started to have heart problems soon after his active deployment in 1996 to Southwest Asia, but it was assessed as high cholesterol. As noted above, the Veteran had service in Southwest Asia in 1996. Accordingly, Hickson element (2) is arguably met. The Veteran submitted a statement from Dr. S.S. in August 2013 that noted his current treatment for CAD. Accordingly, Hickson element (1) is met. 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 opined that the CAD/cardiovascular disease was as likely as not caused by his service in the Gulf War. The Veteran was afforded a VA examination in November 2019 in which the examiner stated in pertinent part that he had an angioplasty/stent following acute myocardial infarction (MI) in 2001; he had two cardiac catherization subsequently that did not require angioplasty or stents. The examiner opined that it was at least as likely as not that the Veteran's CAD was related to his military service. An addendum VA opinion, without examination, was obtained in October 2020 in which the examiner opined that based on the Veteran's active service dates, it was less likely than not that the CAD was related to his active military service or aggravated by miliary service. The examiner stated that service treatment records were silent for diagnosis and treatment for CAD. The Board notes that greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians. Gabrielson, 7 Vet. App. 36, 40. Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis, 1 Vet. App. 66; the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson, 2 Vet. App. 614. The Board acknowledges that the October 2020 examiner provided a negative etiological opinion. However, the VA examiner did not examine the Veteran and based the opinion on the lack of diagnosis and treatment for CAD in service. The Board notes that the mere absence of in-service evidence of a disability during service is not fatal to a service connection claim. See Ledford,3 Vet. App. 87, 89. The Board finds that the VA examiner's opinion from November 2019 together with the private examiner's opinion from June 2014 are competent and probative in providing positive etiological opinions as they were rendered after evaluation of the Veteran, review of the Veteran's history, and are supported by Veteran's observations and allegations in regards to the factual origin of the disability during his active duty service. Therefore, a nexus is established, and the criteria of Hickson element (3) are met. Based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the CAD is related to active service, and service connection is warranted. REASONS FOR REMAND 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. In response to the Board's remand, the Veteran was afforded a VA examination in November 2019 in which the examiner stated that there was no history of chronic fatigue syndrome. The examiner noted that the Veteran reported constant fatigue without improvement or worsening of fatigue. The examiner noted that the Veteran described his dizziness as a feeling of lightheaded with a change in posture. The examiner stated that the Veteran was diagnosed with presyncopal episodes but had no diagnosis or treatment plan for any undiagnosed illnesses. The Board finds that remand is warranted to obtain an addendum opinion to address the etiology of the diagnosed presyncopal episodes and to address whether his reports of fatigue are indicative of a chronic multi-symptom illness of the type contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The matter is REMANDED for the following action: 1. Provide access to the electronic claims file to the November 2019 examiner, or appropriate substitute if this individual is not available, to provide an addendum opinion. An examination should be afforded to the Veteran if deemed necessary by the examiner providing the requested opinions. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should address the following: a. Specify whether the Veteran's complaints of fatigue are indicative of 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 this symptom, instead, is attributable to known clinical diagnoses. b. If no diagnosis is made accounting for this symptom, the examiner therefore must reconcile such conclusion with the evidence of record detailing the Veteran's complaints. c. If the Veteran's 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. d. For the diagnosed presyncopal episodes, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the presyncopal episodes was incurred in service, or is otherwise etiologically related to service. A full and complete rationale for all opinions expressed must be provided. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim 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 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.