Citation Nr: 21066631 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 11-33 720 DATE: November 1, 2021 REMANDED Entitlement to service connection for disability manifested by multiple joint pain, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1990 to August 1990, and in the National Guard with periods of active service from May 2000 to January 5, 2001, and January 21, 2001, to November 2004, to include service in the Southwest Asia theater of operations. The Veteran also had a period of active duty for training from February 1996 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in November 2014, March 2017, November 2017, and May 2019, and then denied the claim in October 2020. The Veteran appealed the Board's October 2020 denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the October 2020 Board denial, and remanded the matter to the Board for compliance with the JMR instructions. The Parties agreed that remand was warranted because "the Board erred when it failed to ensure VA satisfied its duty to assist to obtain an adequate medical opinion." JMR at 1. Specifically, the Parties agreed that the January 2018 opinion addressing the Veteran's shoulder and the March 2020 opinion addressing his hips are inadequate. Id. at 1-2. Regarding the January 2018 shoulder opinion, the Parties agreed that the opinion is inadequate because the examiner failed to address the Veteran's reports that "since 2004 he experienced a limited range of motion in his shoulders and that 'during his tour in Iraq he was involved in a[n] explosion where he flew for 15 feet hitting [his] body including his head.'" Due to this deficiency, the Parties agreed that a new medical opinion addressing the shoulders is warranted. JMR at 2. Regarding the March 2020 hip opinion, the Parties agreed that the opinion is inadequate because the examiner's rationale is internally inconsistent. JMR at 2. Specifically, the examiner attributed the Veteran's hip pain to obesity and stated that his hip pain is neither a "diagnosable" condition nor related to an "undiagnosed" condition. Id. at 2-3. The examiner's opinion, however, fails to explain how the Veteran's "hip pain may be simultaneously not a diagnosable condition yet also unrelated to an undiagnosed condition." Id. at 3. Accordingly, the Parties agreed that the rationale supporting the opinion is inconsistent and inadequate, and therefore a new opinion addressing the hips is warranted. Id. The Parties also agreed that "the Board erred when it failed to provide an adequate statement of reasons or bases for its denial of entitlement to service connection for a qualifying chronic disability pursuant to 38 U.S.C. § 1117." JMR at 3. In this regard, the Parties agreed that the Board failed to discuss "whether [the Veteran's] shoulder bursitis qualified as a medically unexplained chronic multisymptomatic illness (MUCMI)." JMR at 3. Specifically, the Parties agreed that the medical opinion evidence only addressed the etiology of the Veteran's shoulder disability and not its pathophysiology. Id. at 4-5 (discussing 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018)). The Parties agreed that remand was warranted for the Board to make "a finding as to the pathophysiology of [the Veteran's] shoulder condition in evaluating whether the condition qualifies as a MUCMI." Id. at 5. Accordingly, the Board finds that remand is necessary to comply with the JMR instructions. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Schedule the Veteran for an examination addressing the etiology of the Veteran's claimed disability manifested by multiple joint pain in the hips, shoulders, and knees. The examiner must be someone other than the March 2020, January 2018, May 2017, November 2015, or May 2011 examiners, and preferably a specialist. The entire claims file must be made available to and reviewed by the examiner, to include a copy of this Remand order and the May 2021 Joint Motion for Remand (JMR). After reviewing the claims file, the examiner is asked to address the following: (a.) Please opine whether the Veteran's multiple joint symptoms, to include those symptoms manifested by multiple joint pain in the hips, shoulders, and knees (other than those from the service-connected bilateral knee disabilities), are attributed to a known clinical diagnosis. (b.) If any symptoms associated with the claimed multiple joint pain are not determined to be associated with a known clinical diagnosis, the examiner must indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6-months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. In this regard, the examiner must consider the May 2011 VA examiner's finding of "undiagnosed illness" and opine whether and/or to what extent the symptoms attributable to such finding are manifestations of or separate from the Veteran's service-connected disabilities, to include service-connected posttraumatic stress disorder, lumbar disability, peripheral vascular disease (claimed as loss of balance/balance problems), headaches, sinusitis, right carpal tunnel syndrome, lumbar radiculopathy, bilateral knee chondromalacia, bilateral tinnitus, left knee instability, left hallux valgus, and hypertension. The examiner must also opine whether the Veteran's shoulder condition has an inconclusive or partially understood pathophysiology. Please review pages 3-5 of the JMR before rendering such opinion. (c.) For each known clinical diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (an approximate balance of evidence) that such disorder is related to the Veteran's military service, to include his combat experience, anthrax vaccination, and presumed exposure to environmental hazards during his service in Southwest Asia. In rendering his or her opinion, the examiner is asked to consider all pertinent medical evidence, to include, but not limited to, the following evidence: (1) the January 2003 immunization record for anthrax vaccination; (2) the February 2003 service treatment record noting that the Veteran complained of "[b]ody [a]che (joints)"; (3) the September 2003 statement of medical examination and duty status documenting that the Veteran was "under attack in line of duty" during which he "came under fire and hit the ground" while stationed at Camp Latifiya in Iraq; (4) the December 2003 service treatment record noting "symptoms related to vaccination"; (5) the October 2004 service treatment record noting a complaint of "low and upper extremities pain"; and (6) the May 2006 VA treatment note indicating that the Veteran "[p]ersist[ed] with pain in multiple joints" since discharge. The examiner must also consider and discuss the Veteran's lay statement that "during his tour in Iraq he was involved in a[n] explosion where he flew for 15 feet hitting [his] body including [his] head" (see November 2015 Gulf War General Medical Examination) and his report that "since 2004 he started presenting hips ache, knees weakness, both shoulders limited range of movements, headaches that progressively grew in frequency; soreness in his thigh muscles" (see May 2011 Gulf War Examination). The examiner must assume these lay statements as true, even despite the absence of "objective documentation," and determine whether a nexus is "medically plausible" based on the same. Failure to assume these reports as true will render the opinion inadequate. In rendering an opinion, the examiner must be mindful of the internal inconsistency in the March 2020 hip opinion regarding obesity, discussed on pages 2-3 of the JMR, and must not commit the same inconsistency in her/his opinion. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.