Citation Nr: A21017303 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 191023-40002 DATE: October 26, 2021 REMANDED Service connection for arthritis, to include painful joints. Service connection for a left ankle condition. Service connection for a right ankle condition. Service connection for left carpal tunnel syndrome (CTS). Service connection for right CTS. Service connection for neurological left arm condition. Service connection for neurological right arm condition. Service connection for a right foot condition. REASONS FOR REMAND The Veteran served on active duty from September 1983 to August 2003. The matter is on appeal from a September 2019 rating decision. In an October 2019 notice of disagreement (NOD (VA Form 10182, Decision Review Request: Board Appeal), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2019 rating decision. In July 2020, the Board denied the appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in July 2021 granting a July 201 Joint Motion for Partial Remand (JMPR). The Court's order remanded the matter for action consistent with the terms of the JMPR. (The Board had also denied service connection for a left wrist condition, but the parties to the JMPR made clear that he was not appealing that issue.) 1. Service connection for arthritis, to include painful joints. 2. Service connection for a left ankle condition. 3. Service connection for a right ankle condition. 4. Service connection for left CTS. 5. Service connection for right CTS. 6. Service connection for neurological left arm condition. 7. Service connection for neurological right arm condition. 8. Service connection for a right foot condition. The parties to the July 2021 JMPR agreed that the prior Board decision erred when it found the Veteran did not have service in Southwest Asia during the Persian Gulf War. The parties pointed to evidence indicating the Veteran did have such service. Upon further review, the Board now agrees that the Veteran did have service in Southwest Asia. The Veteran was awarded the Southwest Asia Service Medal, and his service personnel records (SPRs) confirm service in Saudi Arabia. For example, there is a travel voucher covering the period from June to August 1991 for service in Saudi Arabia. Hence, the Veteran is a "Persian Gulf veteran" for purposes of 38 C.F.R. § 3.317. The parties to the JMPR also found that the Board erred where it denied service connection for a right foot condition. The Board had found that the service treatment records (STRs) did not reflect treatment for any right foot symptoms in service. The parties noted that the STRs included a September 1983 podiatry record "that referenced the 'right hallux.'" The Board now points out that the parties must be referring to a November 1983 Podiatry consultation, which is handwritten and largely unreadable, but does appear to state "right hallux." (The entry immediately above this Podiatry consultation is from September 1983, which likely accounts for the discrepancy in the JMPR.) Finally, the parties to the JMPR found that the Board did not make clear the basis for its denial of service connection for the ankle, CTS, and arm neurologic conditions. The parties pointed to the Board's conclusion that "whether or not the Veteran has these disabilities at the present time, the preponderance of the evidence is against finding that any ankle disability, CTS, of neurological condition affecting the arms began during active service, or is otherwise related to an in-service injury, event, or disease." The parties felt that the Board's compound finding made it unclear if the claims were being denied based on the absence of a current disability or the absence of a nexus to service. In light of the concerns raised in the JMPR, the Board finds that remand for VA examinations is warranted. First, as indicated, the Veteran is a "Persian Gulf veteran." As joint pain may be an undiagnosed illness and medically unexplained chronic multisymptom illnesses (MUCMI) under 38 C.F.R. § 3.317, a VA examination is needed to address whether the Veteran has a diagnosis of arthritis or, if not, whether he may have joint pain due to his Persian Gulf service. (Consistent with the Board's prior decision, the scope of the arthritis claim does not include the bilateral wrists, shoulders, cervical spine, thoracolumbar spine, knees, or other specific joints which have been separately claimed and adjudicated. Rather, the claim on appeal for arthritis, based on context, is consistent with a claim for generalized or systemic arthritis. The parties to the JMPR did not call into question this aspect of the Board's determination. Hence, the claims remains limited in scope.) The examination will also address the JMPR's final concern regarding whether the Veteran has a diagnosed condition involving the ankles, CTS, or a neurologic condition affecting the arms and, if so, whether it is related to service. Likewise, a VA examination is needed to address whether the Veteran's preexisting right foot condition was aggravated during service when considering the November 1983 Podiatry consultation. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to address the claimed arthritis, to include painful joints, ankles, CTS, and neurological arm conditions. The examiner is asked to address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any functional impairment, such as pain or limited motion, in the joints, ankles, or involving CTS? (c.) Please provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology or pathophysiology (3) a diagnosable chronic multi-symptom illness with a partially explained etiology or pathophysiology, or (4) a disease with a clear and specific etiology, pathophysiology and diagnosis (d.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or pathophysiology, or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (e.) If no, is it at least as likely as not that any diagnosed disorderor any functional impairmenthad its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that a current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed right foot condition. The examiner is asked to address each of the following: (a.) Does the Veteran have a current right foot diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. For each diagnosis, the examiner must address the following: (b.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. (c.) Whether the moderate pes planus, which preexisted service, was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. The examiner must address a November 1983 Podiatry consultation appearing to show treatment for the right hallux. In answering these questions, the examiner is also asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that a current condition is related to service or was aggravated during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.