Citation Nr: A21020608 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 191001-35125 DATE: December 29, 2021 ORDER Entitlement to service connection for a right upper trapezius condition is denied. New and relevant evidence having been submitted, the request to readjudicate the claim for entitlement to service connection for a right knee condition is granted. New and relevant evidence having been submitted, the request to readjudicate the claim for entitlement to service connection for a left knee condition is granted. New and relevant evidence having been submitted, the request to readjudicate the claim for entitlement to service connection for a right elbow condition is granted. New and relevant evidence having been submitted, the request to readjudicate the claim for entitlement to service connection for a left elbow condition is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a left elbow condition is remanded. FINDINGS OF FACT 1. The Veteran has not had a right upper trapezius condition at any time during or approximate to the pendency of the claim. 2. A July 2004 rating decision denied service connection for a right knee condition, a left knee condition, a right elbow condition, and a left elbow condition; the Veteran did not appeal this rating decision; thus, it became final. 3. In March 2019, the Veteran filed a new application for service connection for bilateral knee and elbow conditions claiming they were due to Gulf War Syndrome. CONCLUSIONS OF LAW 1. The criteria for service connection for a right upper trapezius condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. New and relevant evidence has been submitted to readjudicate the claim for entitlement to service connection for a right knee condition. 38 C.F.R. § 3.2501. 3. New and relevant evidence has been submitted to readjudicate the claim for entitlement to service connection for a left knee condition. 38 C.F.R. § 3.2501. 4. New and relevant evidence has been submitted to readjudicate the claim for entitlement to service connection for a right elbow condition. 38 C.F.R. § 3.2501. 5. New and relevant evidence has been submitted to readjudicate the claim for entitlement to service connection for a left elbow condition. 38 C.F.R. § 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to April 2002. In October 2019, the Veteran elected the Evidence Submission Reviewed by a Veterans Law Judge lane to appeal his June 2019 rating decision. Accordingly, the Veteran was given an additional 90 days to submit evidence in support of his claim. As the 90-day window has now closed, the claim is ready for review. I. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a right upper trapezius condition. The Veteran first filed an application for service connection for a right trapezius condition in March 2019. On his application he indicated that this condition was from carrying backpacks during his Gulf War service. The Board notes that the Veteran is currently service connected for a left trapezius strain. The Veteran was given a VA examination for his shoulders in August 2019. Here, the examiner did not diagnose any right shoulder condition, only finding the Veteran's previously diagnosed left upper trapezius strain. Moreover, the examiner found the Veteran's right shoulder range of motion to be all normal. As no current disability was found, the RO denied the claim. In an April 2021 brief, the Veteran's representative argues that the RO's denial based on no current diagnosis is "no longer adequate given that in the presence of functional impairment in earning capacity an underlying condition may be established as service-connected in the absence of an objectively diagnosed disability. Saunders v. Wilkie, 886 F.3rd 1356 (Fed. Cir. 2018). It does not appear that VA has adequately developed the cause to determine if there is, or is not, a functional impairment in earning capacity associated with any of the claimed conditions, and in particular, the right upper trapezius issue." The Board is not persuaded by this argument. First, the Veteran has not contended that his right upper trapezius condition has caused an impairment on his earning capacity. Moreover, the August 2019 VA examiner found no loss of range of motion of the Veteran's right shoulder. Accordingly, no current disability or functional impairment is supported by the evidence. The Veteran's representative also argues that the Veteran had implied that his right upper trapezius condition may be due to an undiagnosed illness for his Gulf War service. However, the Board notes that the Veteran specifically contended on his application that some conditions were the result of "Gulf war syndrome" and the upper right trapezius condition was not one of them. Instead, the Veteran only attributed this condition to carrying backpacks and wearing a vest during the Gulf War. In any event, there is no credible evidence of a current chronic disability. The evidence is not in "approximate balance" or "nearly equal." There is no persuasive evidence of a current disability during the pendency of this claim. Accordingly, entitlement to service connection for a right upper trapezius condition is denied. II. New and Relevant Evidence VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). Relevant evidence is evidence that "tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard under 38 C.F.R. § 3.156(a). Id. 2. The request to readjudicate the claim for entitlement to service connection for a right knee condition. 3. The request to readjudicate the claim for entitlement to service connection for a left knee condition. 4. The request to readjudicate the claim for entitlement to service connection for a right elbow condition. 5. The request to readjudicate the claim for entitlement to service connection for a left elbow condition. In November 2003, a VA examiner sent an email to VA staff noting that the Veteran complained of left foot, bilateral knee, and bilateral elbow problems that started in service. The RO took this as an informal claim and issued a July 2004 rating decision denying service connection for each condition. The Veteran did not appeal this rating decision; thus, it became final. However, as noted above, the Veteran filed a March 2019 application requesting service connection for bilateral knee and bilateral elbow conditions. The Veteran specifically indicated that these conditions were the result of "Gulf war syndrome." A review of the Veteran's military personnel records show that he served in Southwest Asia. This is a new theory of entitlement and he complains of symptoms so it is relevant in that it "tends to prove or disprove a matter at issue in a claim." Accordingly, the Board finds that new and relevant evidence has been received and readjudication of the claims for entitlement to service connection for a right knee condition, a left knee condition, a right elbow condition, and a left elbow condition is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition is remanded. 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a right elbow condition is remanded. 4. Entitlement to service connection for a left elbow condition is remanded. As noted above, the Veteran has contended that these conditions are all the result of Gulf War syndrome. A review of the record shows that the RO did not provide the Veteran with a Gulf War examination in conjunction with these claims, despite this theory of entitlement being listed on his application for service connection. This is a pre-decisional duty to assist error. Thus, remand is warranted to provide the Veteran with a Gulf War examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a Gulf War examination to determine whether his bilateral knee and/or bilateral elbow conditions may be etiologically related to his service in Southwest Asia and/or meet the regulatory criteria for an undiagnosed illness and/or medically unexplained illness. A detailed rationale for the opinions reached must be provided. If the reviewing clinician is unable to offer the requested opinions, it is essential that the reviewing clinician offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.