Citation Nr: 21005756 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-02 489 DATE: February 2, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a right knee strain is remanded. Entitlement to an initial disability rating in excess of 10 percent for a left knee strain is remanded. Entitlement to service connection for a genitourinary condition, to include urinary tract infection (UTI), is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1996 to June 2009. She served in Iraq from January 2005 to January 2006. See DD-214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a genitourinary condition and denied an initial rating in excess of 10 percent for her left and right knee strains. In February 2018 and September 2019, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded to afford the Veteran adequate VA examinations and to request that the Veteran assist VA in obtaining relevant medical records. The claims are back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminarily, the Board notes that the Veteran submitted VA Forms 21-4142 and 21-4142a in October 2010 and April 2019 for the same private medical facility. In April 2019, VA was informed by the facility that the Veteran had specifically instructed them not to release her records to VA; the Veteran received a copy of her own medical records from the facility. See April 2019 VA Form 21-0820. However, she was not informed of VA’s inability to receive the medical records as she had requested or was otherwise provided an opportunity to submit her own copy she received from the facility. See August 2020 Subsequent Development Letter. On remand, the Veteran should be notified of VA’s inability to acquire these records and provided an opportunity to submit the relevant medical records. 1. Entitlement to an initial disability rating in excess of 10 percent for a right knee strain is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for a left knee strain is remanded. The Veteran has been afforded four VA examinations within the appellate period. In her first VA examination, the examiner reported that the Veteran had flare-ups in her knees once per day that last three hours after physical activity. See November 2009 VA examination report. Indeed, the Veteran has consistently reported similar flare-ups within the appellate period. See October 2010 NOD, December 2013 VA Form 9, and September 2020 VA examination report. VA examiners subsequent to the Veteran’s November 2009 VA examination report have stated that the Veteran has denied flare-ups. See April 2019, December 2019, and September 2020 VA examination reports. The Board’s September 2019 remand instructions required the examiner to estimate the range of motion lost, if any, during periods of flare-ups based on the evidence of record, including the Veteran’s statements. The examiners did not attempt to estimate the range of motion lost, despite the Veteran’s consistent statements endorsing flare-ups. Thus, a remand is required for an adequate examination, to include an estimate of any range of motion lost during flare-ups. 3. Entitlement to service connection for a genitourinary condition, to include urinary tract infection (UTI), is remanded. The Board expanded the Veteran’s claim for service connection for a urinary tract infection to one for a genitourinary condition in its February 2018 remand. Preliminarily, the Board notes that a December 2019 VA examiner concluded that a “very recent clinic note” was inconsistent with the medical record. See December 2019 VA examination report. However, the most recent medical records available in the record include visits in May 2019 and before. See May 2019 VA treatment records. The most recent treatment note related to the Veteran’ genitourinary system is from February 2017. See May 2019 Government treatment records. Thus, it is unclear as to what treatment note the examiner is drawing her conclusion. On remand, the AOJ should make efforts to supplement the record with any outstanding treatment records. The Veteran has been afforded two VA examinations. Both examiners made two similar conclusions: (1) the Veteran’s UTIs were acute and, thus, did not meet the diagnosis of a chronic UTI; and (2) the Veteran did not have a genitourinary diagnosis. The Veteran contends that she has a genitourinary condition, which she describes as UTIs that have occurred frequently since her separation. See December 2013 VA Form 9. She explained that the impact of her genitourinary condition includes daytime voiding up to three times per hour and nighttime voiding up to once per hour. Id. Indeed, the May 2019 VA examiner described the functional impairment as decreased productivity due to the need to void. See May 2019 VA examination report. The Board notes that in the absence of proof of a present disability, to include symptoms that cause functional impairment of earning capacity, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In determining whether symptoms cause functional impairment in earning capacity, the VA’s rating schedule may provide guidance but there must be competent evidence to show that an impairment rises to a level that affects earning capacity. See Wait v. Wilkie, ___ Vet.App. ____ (2020). Here, competent evidence shows that the Veteran’s voiding pattern decreases her occupational productivity causing functional impairment. See May 2019 VA examination report; see also 38 C.F.R. § 4.115a. Thus, the Veteran has a disability for VA compensation purposes. Therefore, an analysis as to whether the Veteran has a diagnosis related to her genitourinary condition carries a different purpose. Importantly, service connection may be warranted for a Persian Gulf War 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 not later than December 31, 2021. 38 C.F.R. § 3.317 (a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). The regulations list several signs or symptoms that may be a manifestation of an undiagnosed illness but did not limit the possible signs or symptoms to only those delineated. 38 C.F.R. § 3.317(b). The Veteran asserts that the onset of her genitourinary condition was frequent UTIs during service but prior to her deployment to Iraq. See May 2019 VA examination report. However, the May 2019 VA examiner concluded that the Veteran’s UTIs were acute and had resolved with no residuals. Id. The VA examiner also determined that the Veteran’s increased voiding was an impairment to her occupational functioning. Id. Thus, the record is unclear as to whether the Veteran’s increased voiding is related to any other diagnosed condition and, if not, whether the Veteran’s disability had its onset before, during, or after her deployment to Iraq. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for her bilateral knee and genitourinary disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented. 2. Inform the Veteran that private medical records responsive to her April 2019 VA Form 21-4142a were not obtainable. Provide her with an opportunity to submit those records or resubmit a VA Form 21-4142a. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented. 3. After the above development is completed, schedule the Veteran for an appropriate examination to determine the current nature and severity of her bilateral knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After the development in #1 and #2 above are completed, schedule the Veteran for an examination to determine the nature and etiology of any genitourinary disability, to include increased voiding. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all genitourinary signs and symptoms present, to include increased daytime and nighttime voiding. For each identified sign or symptom, the examiner is asked to respond to the following inquiries: A. Does the Veteran have a diagnosis related to her symptoms? If not, does the Veteran have a diagnosed disability that explains each of her alleged symptoms? If the Veteran does not have a diagnosis related to her symptoms or one that explains each of her alleged symptoms, please estimate the onset date of her alleged symptoms. B. As to any diagnosed disability, that is not service connected, is the etiology OR pathophysiology of the condition not understood AT ALL as to the Veteran? C. As to any diagnosed disability, that is not service connected, if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to the Veteran, is it at least as likely as not that the diagnosed condition is attributable to service? In rendering these opinions, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.