Citation Nr: 21007835 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-10 437A DATE: FEBRUARY 10, 2021 ORDER Entitlement to service connection for chronic joint pain, other than back pain, left knee pain and right ankle pain, to include as secondary to service-connected right knee disability, and/or as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness due to environmental exposures during the Gulf War is denied. FINDING OF FACT The medical evidence of record does not reflect chronic joint pain that manifest in service or that is secondary to the Veterans service-connected right knee disability other than back pain, left knee pain and right ankle pain. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic joint pain, other than back pain, left knee pain and right ankle pain, to include as secondary to service-connected right knee disability, and/or as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness due to environmental exposures during the Gulf War have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.317 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active duty service in the U.S. Air Force from November 1977 to February 2004, including deployments in Saudi Arabia and Afghanistan during the Persian Gulf War era. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia in which service connection for joint pain as due to an undiagnosed illness was denied for lack of a chronic condition. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2018. The transcript of the hearing has been associated with the claims file. This claim was previously before the Board in May 2019 and was remanded for further development. In a July 2020 rating decision, the RO granted direct service connection for degenerative disc disease of the lumbar spine (claimed as chronic joint pain), and secondary service connection of the right ankle and the left knee due to the Veteran’s service-connected right knee condition. Accordingly, the Veteran’s claim for service connection is now characterized as chronic joint pain except for these joints, due to the service-connected right knee, or as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness due to environmental exposures during the Gulf War. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that there has been substantial compliance with the remand directives. Entitlement to service connection for chronic joint pain, to include as secondary to service-connected right knee disability, and/or as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness due to environmental exposures during the Gulf War The Veteran contends that he has chronic joint pain throughout his body, other than back pain, left knee pain and right ankle pain, that was incurred in, aggravated by, or otherwise attributable to service. To establish a right to compensation for a present disability, 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. In addition, the Board notes that the Veteran served in the Southwest Asia theater of operations in support of Persian Gulf War. 38 C.F.R. § 3.317 (e). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces 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, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Competent and credible lay evidence of subjective symptoms, such as pain, may establish an undiagnosed illness that causes a qualifying chronic disability under 38 C.F.R. § 3.317 (b). Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014); Gutierrez v. Principi, 19 Vet. App. 1, 9 (2004). An illness is a medically unexplained chronic multi symptom illness where either the etiology or the pathophysiology of the illness is inconclusive; it is not a medically unexplained chronic multi symptom illness where both the etiology and the pathophysiology of the illness are partially understood. Whether a condition is a medically unexplained chronic multi symptom illness is based on the evidence for the veteran's claim. Stewart v. Wilkie, 30 Vet. App. 383, 389-91 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A review of the Veterans service treatment records reflects a March 2000 health assessment in which the Veteran reported temporary hand edema and generalized arthralgias in January 2000 for 10 days after an Anthrax vaccination and after taking Theraflu. His viral upper respiratory infection affected his voice for several weeks which ultimately was improved with steroids. On his retirement physical assessment in August 2003, the Veteran indicated that he was not experiencing pain but marked that he experienced pain at level 2 on a scale of 0 to 10 periodically for short periods after standing and running that was improved by aspirin. Just before the physical examination, he struck his knee on a board and experienced slight pain with running. Turning to the Veteran’s VA treatment records from December 2010 through August 2020, there is no evidence of treatment for complaints of joint pain, chronic or otherwise. A primary care visit in June 2018 for follow-up on the Veteran’s chronic problems notes several medical conditions including low back pain, however, there is no reference to pain in any other joint, whether acute or chronic. In August 2020 the Veteran was seen for a follow-up primary care visit for his chronic problems including intrahepatic liver disease by tele-visit. The Veteran’s problem list did not include shoulder, knee or any other joint pain and the clinician’s review of symptoms did not elicit any complaints of joint pain. The Veteran offered testimony in September 2018 that his joint issues with the ankle and shoulder started in 1996 or 1997 and he noticed that in performing his normal workout his joint soreness became more noticeable in 2006 and 2007. His back and right knee bothered him the most along with his right shoulder. The Veteran described his joint pain as “random pain throughout his body” for which he had not received a diagnosis. The Veteran testified that a physician attributed his right foot pain to his service-connected right knee disability. He further noted that the medication that he takes for his knee pain also resolves the other joint pains. In the May 2019 decision, the Board noted that the Veteran underwent a Gulf War examination in January 2011, but the examiner found was no indication of a Gulf War illness at that time. However, the Board notes that an undiagnosed illness or medically unexplained chronic multi-symptom illness can manifest at any point to a degree of 10 percent or more prior to December 31, 2021 and remanded the claim for additional development. See 38 C.F.R. § 3.317. In October 2019, the Veteran underwent VA examinations for shoulder and arm conditions, knee and lower leg conditions, and lumbar spine condition and in January 2020, he underwent Gulf War condition examinations for chronic fatigue syndrome and infectious diseases. A diagnoses of bilateral shoulder strain effective 2019 was confirmed on the VA shoulder examination with the Veteran reporting the date of onset of his shoulder pain as 2000 following his 5th Anthrax vaccination in Saudi Arabia. The Veteran noted that the afternoon after the injection his elbow, ankle, knee and shoulder joints swelled. Benadryl was administered and the swelling decreased overnight. Presently, the Veteran complained of continuing pain and functional loss with limited reach behind his back that he treated with over-the-counter analgesics. The examiner concluded that there was no evidence of onset of an ongoing shoulder condition in service. Further as the shoulder joint is a distinct entity from the service-connected knee which involves manipulative functions as opposed to the postural movements such that there is no cause and effect relationship between the two. In January 2020 the Veteran underwent VA examinations for the Gulf War conditions for chronic fatigue syndrome and infectious diseases related to his claim of chronic joint pain. The VA examiner conducted an in-person examination including interview of the Veteran for his history and reviewed his entire claims file including the Board remand. At the outset the examiner found that there were no disabilities for which an etiology had not been established nor any additional signs and/or symptoms of functional impact that may have represented an “undiagnosed illness or “diagnosed medically unexplained chronic multi-symptom illness.” The examiner noted that the Veteran’s physical examination was normal except for the findings associated with the knees, back, and ankle which are service-connected and the shoulder, which is not service-connected, in separate examinations. The examiner reviewed and did not find chronic joint pain noting that the Veteran was diagnosed with an insomnia disorder and adjustment disorder that was related to his insomnia and his fatigue. Fatigue is also a symptom of the Veteran’s liver condition that is encompassed in his service-connected gastrointestinal disorders. Despite physical and mental conditions that are associated with chronic fatigue, the Veteran continued to work a 40-hour week, drive 25 minutes each way to work, participate in other activities after work including grocery shopping and 1-2-hour gym workouts. With respect to Gulf War infectious diseases, the examiner noted that the Veteran had not been diagnosed with any listed infectious disease. He was notified of problems with the lot of the vaccine from which he received his 5th Anthrax vaccination sometime between 1999 and 2000. The Veteran experienced hand swelling, multiple arthralgias and tightness in his voice box which lasted 10 days to several weeks. There was no documentation of a Persian Gulf/Afghanistan infection during his military service and the Veteran agreed that he had no chronic sequelae present following the self-limited side-effects to the 1999-2000 anthrax injection. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for chronic joint pain, is not warranted, either on a presumptive basis or on a direct basis. In reaching these conclusions, the Board has carefully considered the Veteran's assertions in the evidence of record. The Board acknowledges that, as a lay witness, the Veteran is competent to report discernable symptoms such as exhaustion. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses that which is heard, felt, seen, smelled, or tasted"). Clearly, the Veteran is competent to report whether he feels join pain. Nevertheless, ascertaining a diagnostic impression of chronic joint pain or determining chronic multi-symptom undiagnosed symptomatology involving expert knowledge of immune disorders, viral infection, hormonal imbalance, and neurology is beyond the scope of lay observation. Thus, a determination as to the etiology of chronic joint pain and/or multi-symptom undiagnosed chronic multi symptom illness requires highly specialized training which the Veteran has not shown that he possesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, supra. As noted above, the evidence of record fails to show that the Veteran suffered from a multi-symptom undiagnosed chronic undiagnosed chronic joint pain symptomatology in service. Moreover, the record of evidence fails to reveal a continuity of this symptomatology since separation from service. Joyner, supra. Concerning a grant of service connection on a direct basis, the Board observes that service connection is predicated upon the existence of a current disability of chronic joint pain, an inservice injury and a medical nexus. See Sheddin, supra. While the Veteran did have shoulder strain diagnosed in his VA examination in 2019, the required element of an in-service injury is not evident. Id. In addition, without an inservice injury, the question of a medical nexus between the current shoulder strain and service is not feasible and service connection cannot be established. Id. In addition, with respect to chronic joint pains throughout the Veteran’s body aside from the service-connected knees, right ankle, and spine, the evidence of record fails to reveal a current disability. Here, the Board assigns substantial probative weight to the entirety of the Veteran’s VA treatment records for the period on appeal and the expert medical opinions of October 2019 and January 2020. In the absence of a current disability, compensation may not be awarded. In the absence of evidence of current chronic joint pain apart from the knees, right ankle, and spine, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the entirety of the evidence of record does not contain a diagnostic impression of chronic joint pain related to a multi-system undiagnosed or medically unexplained chronic multi-symptom illness due to environmental exposures during the Gulf War. Accordingly, the preponderance of evidence is against the Veteran's claim and there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.