Citation Nr: 21068989 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-03 130 DATE: November 17, 2021 ORDER Entitlement to service connection for a disability manifested by lower extremity pain and swelling (claimed as joint and muscle pain), other than residuals of left ankle fracture and service-connected right ankle disability, is denied. Entitlement to service connection for residuals of a left ankle fracture is granted. REMANDED Entitlement to service connection for a respiratory disorder, to includes as due to an undiagnosed illness or MUCMI, is remanded. FINDINGS OF FACT 1. The Veteran does not have an undiagnosed illness or a MUCMI manifested by lower extremity pain and swelling, claimed as joint and muscle pain, but has diagnosed conditions of the joints in the bilateral lower extremities that have a known physiopathology and etiology. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral hip disorder that began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran has a bilateral knee disorder that began during active service or is otherwise related to an in-service injury or disease. 4. Resolving reasonable doubt in the Veteran's favor, he has disabling residuals from a left ankle fracture that was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by lower extremity pain and swelling (claimed as joint and muscle pain), other than residuals of left ankle fracture, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for residuals of a left ankle fracture are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from April 1981 to April 2001, to include service in Southwest Asia from September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s February 2015 rating decision. The Board previously remanded these issues for additional development in November 2019 and April 2021. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's orthopedic claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for a disability manifested by lower extremity pain and swelling (claimed as joint and muscle pain), other than residuals of left ankle fracture In his original November 2012 application, the Veteran claimed service connection for multiple conditions including laceration of the lower hip, right knee injury and fractured right tibia/foot, which he reported were incurred in service between August 1983 and November 1990. The RO denied these claims in an April 2014 rating decision. In a subsequent application filed in May 2014, the Veteran claimed service connection for an undiagnosed illness manifested by various conditions including joint and muscle pains. The RO denied service connection for an undiagnosed illness manifested by joint and muscle pain in a February 2015 rating decision. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran has claimed, however, that he has joint and muscle pain that is due to an undiagnosed illness. Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1); Extension of the Presumptive Period for Compensation for Persian Gulf War Veterans, Interim Final Rule, 86 FR 51000, 51001, Sept. 14, 2021. A "Persian Gulf veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. The Southwest Asia Theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e). A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following MUCMIs: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a MUCMI; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, nonmedical indicators that are capable of independent verification. Signs or symptoms that may be manifestations of undiagnosed illness or MUCMI include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). The term MUCMI refers to 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. 38 C.F.R. § 3.317(a)(2)(ii). A multisymptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multisymptom illness, must be particular to the claimant's case. Id. at 291. Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between the most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8-98 (Aug. 3, 1998). In the present case, all of the VA examiners have agreed that the Veteran's joint and muscle pain is not due to an undiagnosed illness or a MUCMI but rather is related to his joint conditions in the bilateral lower extremities that have a known etiology and diagnosis. See August 2014 and June 2021 VA examinations and medical opinions. The August 2014 VA examiner opined that the Veteran's pain in his hips, knees and ankles (diagnosed as arthralgia bilateral hips, bilateral knee pain and status post bilateral ankle injuries) is not Gulf War related but are due to injury or arthritis. The examiner concluded that the Veteran's disability pattern is not an undiagnosed illness, not a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology and not a diagnosable chronic multisymptom illness with a partially explained etiology. Rather the Veteran's disability is a disease with a clear and specific etiology and diagnosis. In addition, the most recent VA examination conducted in June 2021 resulted in diagnoses of bilateral hip arthritis, bilateral knee strains and right ankle arthritis. As the Veteran stated he did not have issues with his left ankle and was not seeking service connection for one, the examiner did not address whether there was evidence of a left ankle disorder during the appeal period. Initially, the Board notes that the VA examiner opined that the right ankle arthritis diagnosed on examination was related to the right ankle fracture that the Veteran had during service. Based on this opinion, the RO granted service connection for the right ankle arthritis in a July 2021 rating decision. Hence, that issue is no longer before the Board. As for the Veteran's contention that he has joint and muscle pain in the bilateral lower extremities due to an undiagnosed illness, the examiner opined that the Veteran's disabilities of knees strain and arthritis of the hips and right ankle are diseases with a clear and specific etiology and diagnosis and, therefore, it is less likely than not that the disability is related to exposure events experienced in Southwest Asia. The Veteran has not submitted any evidence other than his own unsubstantiated opinion that he has an undiagnosed illness. As to the specifically diagnosed disorders involving the bilateral hips and bilateral knees, the Board finds that the preponderance of the evidence is against finding that the currently diagnosed bilateral hip arthritis and bilateral knee strains are due to his military service. The June 2021 VA examiner opined that it is not at least as likely as not that the Veteran's bilateral hip arthritis is related to any in-service injury, disease or event. The examiner's rationale was that the Veteran denied having any hip problems at his separation examination in 2001 or in the proximal years after the end of his active military service and that his bilateral hip arthritis is more likely related to post-military risk factors such as occupation, body habitus and sedentary lifestyle. The examiner noted that the Veteran's current weight was 250 pounds, although it was 300 pounds about 6 months prior as he had lost some weight due to lifestyle and medication changes. As for the Veteran's knees, the Board acknowledges that there is inconsistent evidence as to what the Veteran's diagnosis should be. A January 2020 VA examiner rendered diagnoses of bilateral knee arthritis and left knee meniscal tear, which the examiner indicated was based on imaging studies. A January 2020 private orthopedist's note also indicates a diagnosis of early degenerative joint disease in the bilateral knees. However, the June 2021 VA examiner found the Veteran has bilateral knee strains/sprains. The examiner stated that the Veteran does not have a diagnosis of bilateral knee arthritis and/or left knee meniscal tear as the imaging studies (X-rays and a left knee magnetic resonance imaging (MRI) study) did not show either arthritis or a meniscal tear in the knees. The examiner found that there were no other factors found on examination or diagnostics that would contribute to his diagnosis of bilateral knee strains, including an acute injury of the right knee as seen in his treatment records in April 2019. The examiner opined that the Veteran's bilateral knee strains diagnosed on examination are not related to his military service because the Veteran denied any knee problems on his separation examination in 2001 or in the proximal years after the end of his active service. Rather, the examiner related the Veteran's bilateral knee strains to post-military risk factors such as occupation, body habitus and sedentary lifestyle. The Veteran has not provided any opposing medical opinions other than his own unsubstantiated statements. While the Veteran is competent to report having experienced symptoms of joint and muscle pain since service, he is not competent to provide a diagnosis or an opinion as to etiology in this case as the issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds the more probative evidence to be the VA examiner's medical opinion as to whether there is a nexus relationship between the Veteran's current bilateral knee disorder and his military service. Moreover, the Board does not find that presumptive service connection based upon a chronic disease, such as arthritis, is warranted. See 38 C.F.R. § 3.307(a)(3). Although arthritis is a chronic disease enumerated in 38 C.F.R. § 3.309(a) subject to presumptive service connection, the evidence does not establish the presence of arthritis within the one-year presumptive period following service. The radiological evidence does not establish that the Veteran has arthritis in his knees and the earliest evidence of bilateral hip arthritis is in 2014, more than a decade following the Veteran's discharge from active duty. As to the Veteran's left ankle disorder, the Board has considered the benefit of the doubt as well as the requirements of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Board notes that the Veteran's service treatment records show he fractured his left ankle in July 1993 but otherwise do not show any chronic residuals during service from this injury. The earliest post-service evidence of a problem with the left ankle is the November 2013 Gulf War Registry examination. At a March 2014 VA examination, the Veteran reported having sprained his ankle in service, but the VA examiner did not find any objective evidence of any current disorder and, thus, noted the reported in-service injury had resolved. At the August 2014 VA examination, the examiner did not diagnosis the Veteran to have a current disorder of the left ankle, but rather provided a general diagnosis of left ankle fracture in 1993. The Veteran reported he continues to have daily flare-ups of mild pain. X-rays taken in July 2014 indicated there was spurring at the inferior lateral malleolar aspect, which were noted to possibly be sequela of the prior injury. The August 2014 VA examiner also noted the Veteran's left ankle condition resulted in functional loss and/or impairment in that he has less movement than normal and pain on movement. Given this evidence, the Board finds that the Veteran has a current left ankle disability pursuant to Saunders. Moreover, resolving reasonable doubt in the Veteran's favor, the Board finds that the current left ankle disability is related to the in-service left ankle fracture incurred in July 1993. As such, the Board finds that the preponderance of the evidence is in favor of granting service connection for the Veteran's current left ankle disability. REASONS FOR REMAND Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness or MUCMI. Initially, the Board notes that, effective August 5, 2021, VA amended its regulations to establish a presumption of service connection for veterans who have a qualifying period of service and certain respiratory conditions (i.e., asthma, rhinitis and sinusitis, to include rhinosinusitis). See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 148, 42725 (Aug. 5, 2021). A qualifying period of service exists if a veteran served on active duty in the Southwest Asia theater of operations (i.e., Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations) during the Persian Gulf War or in Afghanistan, Syria, Djibouti or Uzbekistan on or after September 19, 2001 during the Persian Gulf War. Id. at 41,732-33 (to be codified at 38 C.F.R. § 3.320). A veteran who has a qualifying period of service is presumed to have been exposed to fine, particulate matter during such service unless there is affirmative evidence establishing that the veteran had no such exposure. Id. In addition, the revisions amended VA's duty to assist to require obtaining an examination or medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but establishes that a veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, 3.317, and 3.320 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption. Id. at 41,732 (to be codified at 38 C.F.R. § 3.159(c)(4)(i)(B)). The Veteran is seeking service connection for a respiratory disorder initially claimed in November 2012 as broncho-asthma but in the May 2014 application was claimed to be due to an undiagnosed illness. The service treatment records note a history of asthma in July 1999 but do not show a diagnosis of asthma prior thereto. However, they do indicate the Veteran was treated in August 1993 for bronchitis and pleuritic chest pain. At his January 2001 separation examination, the Veteran reported that, in 1993, he went to TMC (or the ER) for pain in his side and was prescribed an inhaler. He also stated that, since then, he wakes up with a mild cough. The examiner noted that the Veteran had reactive airway disease and was on inhalers for it. The available post-service treatment records do not show complaints or diagnosis of a respiratory disorder from November 2013 to the present and the Veteran has acknowledged on VA examination that he has not been evaluated or treated for a respiratory disorder. The Veteran has been afforded VA examination in August 2014, January 2020 and May 2021. The August 2014 examination report shows the only respiratory order noted was sleep apnea and includes a sleep study report indicating the Veteran was assessed to have severe obstructive sleep apnea. However, at the January 2020 and May 2021 examinations, the Veteran did not report sleep apnea and the examiners did not address it. However, at these examinations, the Veteran reported an onset of breathing problems beginning in service in 1993. At the January 2020 examination, the Veteran related his breathing problems with increase physical demand of fitness training and running in the military. A pulmonary function test (PFT) was performed and the report is associated with the claims file. The examiner newly diagnosed the Veteran to have COPD but opined it was not related to his military service but to his 40 plus history of cigarette smoking. In its April 2021 remand, the Board found the VA examiner's medical opinion to be inadequate because it relied on the absence of treatment or medical findings during service and did not address the Veteran's competent report of symptoms. Therefore, the Veteran's claim was remanded for a new VA examination and medical opinion. On reexamination in June 2021, the examiner failed to find that the Veteran has COPD or any other respiratory disorder and, therefore, gave a negative opinion that he has a respiratory disorder related to his military service. Unfortunately, the Board finds the May 2021 VA examination also inadequate. The VA examiner stated that the January 2020 PFT report was not of record, but it was associated with the claims file along with the January 2020 examination report on February 10, 2020. Moreover, the Board questions the validity of the results of the PFTs conducted for both VA examinations. The January 2020 tester noted that the Veteran's breathing was really bad, and he could not stand for very long so had to sit for the test. Thus, although it is stated that he gave a good effort, it does not sound like he was able to blow hard and fast enough to provide an adequate measurement of his lung functioning. Moreover, it is unclear why the Veteran's breathing was so bad given that he has not had any treatment for any respiratory disorder. In contrast, the May 2021 VA examination resulted in a finding that the Veteran does not have COPD or any respiratory disorder. However, again it appears that the June 2021 PFTs, although read as normal, are of questionable quality as the examiner cautioned that the test should be interpreted with care given the session quality ratings and that the maneuvers were not reproducible. Although it appears the VA examiner took into account the January 2020 examiner's diagnosis of COPD, his opinion that the Veteran does not have a respiratory disorder appears to be based on inadequate information. Hence, it is unclear that the Veteran has a current respiratory disorder and, if he does, what condition he has and if it is related to his military service. The Veteran has reported he has asthma that was treated in the past with inhalers, but the service treatment records show he was diagnosed with bronchitis and a pleural effusion. However, his separation examination noted he had reactive airway disease. The post-service medical records are silent for any diagnosis of a respiratory disorder except for sleep apnea per sleep study in August 2014 and the January 2020 VA examination diagnosis of COPD. However, no one has provided an opinion as to whether the Veteran's sleep apnea is related to his military service. Moreover, the opinions of the January 2020 and May 2021 VA examiners are not based upon adequate information as it appears they ignored the evidence of in-service treatment in August 1993 for bronchitis and the assessment in January 2001 that the Veteran had a reactive airway disease, as well as the Veteran's competent reports of past and current symptoms. Based on the foregoing, the Board finds that remand is warranted to obtain a new VA examination to clarify the Veteran's diagnosis of any current respiratory disorder, to include asthma, COPD and sleep apnea, and to obtain adequate medical opinions as to the cause thereof to include whether the Veteran's complained of symptoms are related to an undiagnosed illness or a MUCMI. The matters are REMANDED for the following action: 1. Obtain up to date VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current respiratory disorder he may have. The examiner must review the claims file. All required diagnostic testing, including PFTs, should be conducted and it should be noted if the test results are adequate based upon the Veteran's effort and if there are factors other than a respiratory condition that affect the results (e.g., obesity, deconditioning, other medical conditions) The examiner is asked to respond to the following questions: (a) Is it at least as likely as not that the Veteran's reported respiratory symptoms either can be attributed to a known clinical diagnosis? (b) If not, are his symptoms evidence of a chronic disability due to an undiagnosed illness or MUCMI secondary to the Veteran's service in Southwest Asia during the Persian Gulf War or do they cause functional loss such that they result in industrial impairment? (c) If the Veteran's respiratory symptoms can be attributed to a known clinical diagnosis or cause functional loss such that they result in industrial impairment, is it at least as likely as not that the Veteran's respiratory condition and/or symptoms began in, or are the result of any injury, disease or event incurred during, his active military service? (d) Do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In providing the requested opinion, consider the Veteran's description of his in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. 3. In readjudicating the Veteran's claim, consideration should be given to the applicability of the new presumption of service connection for respiratory conditions related to exposure to fine, particulate matter that became effective August 5, 2021 as set forth above. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.