Citation Nr: 21065470 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 13-15 244 DATE: October 26, 2021 REMANDED Entitlement to service connection for pain in the joints, including especially in the neck, back, and legs, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to September 1970 and from January to June 1991. In December 2014, he testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In August 2020, the Board denied the Veteran's claim, and in response he appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In granting a June 2021 Joint Motion for Remand (JMR), the CAVC vacated the Board's decision denying this claim and remanded it back to the Board for further proceedings consistent with agreement in the JMR. Specifically, in granting the JMR, the CAVC found that the June 2019 VA examination that the Board had relied on in making its determination was inadequate because the examiner did not address whether Agent Orange exposure directly caused the Veteran's claimed condition, including with discussion of individual risk factors, and failed to address environmental toxins exposure during the Persian Gulf War as another possible etiology. The Board consequently is obtaining this needed additional medical comment before readjudicating this claim. Accordingly, this claim is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain all outstanding records pertinent to this claim, whether VA and/or private, following proper procedures (38 C.F.R. § 3.159(c)). Notify him if unable to obtain records that have been sufficiently identified (38 C.F.R. § 3.159(e)). 2. After obtaining all additional medical treatment or other records relevant to this claim, schedule the Veteran for another VA examination by an appropriate clinician for more medical comment (addendum opinion) concerning the nature and etiology of the pain in the joints, including especially in the neck, back, and legs. A complete copy of this remand and the JMR and all relevant medical and other records must be made available to the examiner for review and consideration. The examiner must review the pertinent evidence, including the Veteran's lay assertions and documented history of complaints. To ensure sufficient responses are received, the current Disability Benefits Questionnaire (DBQ) format must be utilized. Based on a review of the results of the Veteran's past physical examinations, including his VA examinations in April 2010 and June 2019, his statements regarding the development and treatment of this disability, and all other relevant evidence in the claims file, the examiner should answer the following question: Is it at least as likely as not (a 50 percent probability or greater) that the pain in the Veteran's joints, including especially in his neck, back, and legs, began during his service from October 1968 to September 1970 and from January to June 1991, or, if owing to arthritis, initially manifested within a year of his discharge, so by June 1992, or is otherwise related or attributable to an in-service injury, event, or disease including to exposure to Persian Gulf War environmental hazards and/or Agent Orange? In responding, the examiner should, as directed by the June 2021 CAVC JMR, address the June 1991 service treatment record (STR) noting hip stiffness and an x-ray report showing "thickening of the periosteum along the internal pelvic rim opposite the acetabula". Rationale for the opinion is essential. The absence of evidence of treatment for this claimed disability in the Veteran's STRs or even post-service treatment records prior to initial diagnosis cannot be the sole or exclusive reason for providing an unfavorable opinion. However, it is permissible to consider this as one of several factors, provided there also is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records or sooner than when indicated. The examiner is advised that the Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence in the case, a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner, or whatever other reason). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.