Citation Nr: 21005778 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-15 448 DATE: February 2, 2021 REMANDED The appeal as to the claim of entitlement to service connection for right shoulder disorder is remanded. The appeal as to the claim of entitlement to service connection for left shoulder disorder is remanded. The appeal as to the claim of entitlement to service connection for lumbar spine disorder is remanded. The appeal as to the claim of entitlement to service connection for right hip disorder is remanded. The appeal as to the claim of entitlement to service connection for left hip disorder is remanded. The appeal as to the claim of entitlement to service connection for right knee disorder is remanded. The appeal as to the claim of entitlement to service connection for left knee disorder is remanded. The appeal as to the claim of entitlement to service connection for right ankle disorder is remanded. The appeal as to the claim of entitlement to service connection for left ankle disorder is remanded. The appeal as to the claim of entitlement to service connection for respiratory disorder, claimed as difficulty breathing, to include as due to an undiagnosed illness due to service in Southwest Asia, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from November 2003 to April 2004, and from October 2004 to May 2005. His service was under honorable conditions. These matters are on appeal from a July 2015 rating decision. In November 2020, the Veteran testified at a Virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been prepared and associated with the evidence of record. 1. Entitlement to service connection for right shoulder disorder. See argument Below at 9 2. Entitlement to service connection for left shoulder disorder. See argument Below at 9 3. Entitlement to service connection for lumbar spine disorder. See argument Below at 9 4. Entitlement to service connection for right hip disorder. See argument Below at 9 5. Entitlement to service connection for left hip disorder. See argument Below at 9 6. Entitlement to service connection for right knee disorder. See argument Below at 9 7. Entitlement to service connection for left knee disorder. See argument Below at 9 8. Entitlement to service connection for right ankle disorder. See argument Below at 9 9. Entitlement to service connection for left ankle disorder. The Veteran contends that his current right and left shoulder, lumbar spine, right and left hip, right and left knee, and right and left ankle disorders are due to active service. Specifically, during a November 2020 hearing before the Board, the Veteran testified that as an ammunition specialist serving in Afghanistan, he repeatedly loaded heavy loads from HEMTT’s or rocket tubes, which led to pain and popping of his shoulders, numbness and pain of the low back, pain and stiffness of his hips and knees, and pain and instability of his ankles. He further testified that he noticed these symptoms during service, which have continued to the present. Specifically, the Veteran asserted that he continued to experience functional impairment due to his disorders, to include, difficulty going up stairs, cleaning the house, and lifting objects above his shoulder level. In addition, during the aforementioned hearing, the Veteran testified that he received ongoing treatment from a private chiropractor (Active Life Chiropractic). There are records from this practice dated in February 2007 through January 2015. Therefore, the AOJ must obtain complete private treatment records from Active Life Chiropractic, dated from January 2015, to the present. 38 C.F.R. § 3.159(c)(1) (2019). After the aforementioned private treatment records have been obtained and associated with the record, an appropriate VA examination must provide addendum opinions to the May 2015 VA examinations, with consideration of the Veteran’s November 2020 testimony and private treatment records. Moreover, in providing the opinions, the examiner must consider the Veteran’s assertions of symptoms of pain, popping, stiffness, and numbness, since active service. Therefore, the issues must be remanded for adequate VA medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 10. Entitlement to service connection for respiratory disorder, claimed as difficulty breathing, to include as due to an undiagnosed illness due to service in Southwest Asia. During the November 2020 hearing before the Board, the Veteran asserted that his claim for service connection for a respiratory disorder manifested by difficulty breathing, difficulty sleeping, joint pain, and general malaise should be addressed together, as they are known as an undiagnosed illness and/or a medically unexplained chronic multisymptom illness. The Veteran further asserted that he used a CPAP machine; however, he could not explain why it was medically necessary. In addition, the Veteran testified that during his service in Southwest Asia, namely, Afghanistan, he was repeated exposed to burn pits, as he was required to drive trucks into the pit and unload trash. In this regard, the asserted that he experienced difficulty breathing since such time. Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 for a qualifying chronic disability. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section. A "medically unexplained chronic multisymptom illness" means 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." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained 38 C.F.R. § 3.317 (a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness 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). Post-service records include private treatment records dated from February 2007, through January 2015, that note the Veteran’s ongoing complaints of joint pain. In May 2015, the Veteran underwent a VA respiratory examination, during which the examiner found that there was no current diagnosis. Given the Veteran’s ongoing reported symptoms during outpatient treatment, his testimony of difficulty breathing and unexplained joint pain, and the fact that the Veteran has not been afforded a VA Gulf War Examination, the Board finds that a VA examination and opinion are necessary to determine if the Veteran has an undiagnosed illness and/or a medically unexplained chronic multisymptom illness, or if any of the diagnosed illnesses are related to active service. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, during the aforementioned hearing, the Veteran testified that he recently received treatment for his respiratory problem at the VA Medical Center (VAMC). The most recent record from the VAMC is dated in April 2016. Therefore, the AOJ must obtain VA outpatient treatment records from April 2016, to the present. 38 C.F.R. § 3.159(c)(2) (2019). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include complete VA outpatient treatment records from April 2016, to the present, and private treatment records identified by the Veteran from Active Life Chiropractic, from January 2015, to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should state a medical opinion with respect to right and left shoulder disorder (strain) present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and/or left shoulder disorder manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s November 2020 testimony before the Board, when he asserted that he experienced bilateral shoulder pain and popping since active service in Afghanistan, as a result of repeatedly loading heavy loads from HEMTT’s or rocket tubes. The examiner must also comment on the May 2015 VA examination report that shows a diagnosis of bilateral shoulder strain. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should state a medical opinion with respect to lumbar spine disorder (strain) present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the lumbar spine disorder manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s November 2020 testimony before the Board, when he asserted that he experienced lumbar spine pain since active service in Afghanistan, as a result of repeatedly loading heavy loads from HEMTT’s or rocket tubes. The examiner must also comment on the May 2015 VA examination report that shows a diagnosis of lumbar spine strain. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 4. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should state a medical opinion with respect to right and left hip disorder (strain) present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and/or left hip disorder manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s November 2020 testimony before the Board, when he asserted that he experienced bilateral hip pain since active service in Afghanistan, as a result of repeatedly loading heavy loads from HEMTT’s or rocket tubes. The examiner must also comment on the May 2015 VA examination report that shows a diagnosis of bilateral hip strain. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 5. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should state a medical opinion with respect to right and left knee disorder (strain) present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and/or left knee disorder manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s November 2020 testimony before the Board, when he asserted that he experienced bilateral knee pain and stiffness since active service in Afghanistan, as a result of repeatedly loading heavy loads from HEMTT’s or rocket tubes. The examiner must also comment on the May 2015 VA examination report that shows a diagnosis of bilateral knee strain. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 6. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should state a medical opinion with respect to right and left ankle disorder (laxity) present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and/or left ankle disorder manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s November 2020 testimony before the Board, when he asserted that he experienced bilateral ankle pain and giving way since active service in Afghanistan, as a result of repeatedly loading heavy loads from HEMTT’s or rocket tubes. The examiner must also comment on the May 2015 VA examination report that shows a diagnosis of bilateral ankle laxity. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 7. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any undiagnosed illness and any medically unexplained chronic multisymptom illness manifested by any of the following: headaches, cramps, joint pain, muscle pain, cardiovascular disease, elevated blood pressure, or sleep disturbance. If the symptoms are not manifestations of an undiagnosed illness or an unexplained chronic multisymptom illness, the examiner should specify the underlying diagnosis of each of the symptoms. The examiner must review the record, to include service treatment records, VA and private treatment records, lay statements and the Veteran’s testimony before the Board. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner must opine whether it is at least as likely as not (i.e., at least 50 percent probable) that any diagnosed disability, manifested by symptoms to include headaches, cramps, joint pain, muscle pain, cardiovascular disease, elevated blood pressure, or sleep disturbance is causally related to an in-service injury, event, or disease, including service in Southwest Asia. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 8. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 9. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.