Citation Nr: 21008410 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-23 107 DATE: February 17, 2021 REMAND Entitlement to service connection for a right knee disability, to include as an undiagnosed illness due to service in the Persian Gulf, is remanded. Entitlement to service connection for a left knee disability, to include as an undiagnosed illness due to service in the Persian Gulf, is remanded. Entitlement to service connection for a right ankle disability, to include as an undiagnosed illness due to service in the Persian Gulf, is remanded. Entitlement to service connection for a left ankle disability, to include as an undiagnosed illness due to service in the Persian Gulf, is remanded. REASONS FOR REMAND The Veteran had active service from August 1989 to August 1993, from April 1994 to April 1997, and from July1997 to October 2011, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in January 2020 for further development. In part, the Board requested a VA Gulf War opinion with respect to the etiology of the claimed bilateral knee and bilateral ankle disabilities. The requested opinion has been obtained. However, as addressed below, the Board finds that another remand is necessary to ensure compliance with the Board’s January 2020 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service treatment records (STRs) note that the Veteran was involved in a motor vehicle accident in March 1993; he was struck on the left side while he was riding a motorcycle, injuring his left ankle and left knee. An April 1998 STR notes that the Veteran reported left knee pain for one month, without trauma; the record notes rule out knee strain. Post-service treatment records are silent for any complaints, treatment, or diagnosis related to either the knees or the ankles. In a June 2013 and July 2013 correspondences, the Veteran, acknowledging that he has not sought treatment for his knees and ankles, indicated that he spent more than 20 years participating in physical training and road marches, including a 25-mile march in 1999. He attended air assault school in 1990 and airborne school in 2003, which included some hard landings and even landing on a tree trunk resulting in a residual left leg scar. He contends that all of these events have resulted in the knee pain he currently experiences. Additionally, he served in numerous deployments, in which he carried heavy equipment. He reported that over the years, his knees have become more painful and sore. He also contends that these same in-service activities, in addition to wearing heavy boots, has led to his current ankle problems. A Gulf war opinion was rendered in June 2019, which indicates that the Veteran did not have any diagnosed illnesses for which no etiology was established or a diagnosed medically unexplained chronic multisymptom illness. The examiner indicated that there is no objective medical evidence in the available medical records beginning October 2010 to present documenting a chronic bilateral knee or bilateral ankle joint pathology/condition or residual. His June 2019 bilateral ankle and knee x-rays are normal. Although acknowledging that the Veteran claims that his reported symptoms do not constitute a medical diagnosis, the examiner indicated that multiple etiologies can have similar symptoms and only through medical care can one make a diagnosis. The claimed symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a medical diagnosis or physical impairment. Furthermore, without excluding diagnosable conditions, the examiner was unable to determine whether any claimed symptoms meet the criteria of an undiagnosed illness, a diagnosable but medically unexplained etiology, a diagnosable chronic multisystem illness with partially explained etiology, nor a disease with a clear and specific diagnosis. Therefore, these conditions are not related to a specific exposure event experienced by the Veteran’s service in Southwest Asia, an undiagnosed illness, a diagnosable but medically explained etiology, a diagnosable chronic multisystem illness with partially explained etiology nor a disease with a clear and specific diagnosis. An associated June 2019 VA examination for his knees and ankles notes that the Veteran reported that he sustained injuries to his ankles and knees in service, which were later aggravated during a 25-mile road march. Additionally, the Veteran reported that he completed approximately 70 parachute jumps while in air assault school. He indicated that his knee and ankle symptoms were previously treated with NSAID, temporary profile, and physical therapy. He reports constant bilateral moderate to severe knee and ankle pain associated with an intermittent buckling sensation of the knees and intermittent swelling of the ankles. The pain was worse with walking one city block or 10 minutes and cool climate. He reported using a cane daily to aid with ambulation. The Veteran described his functional impairment due to his knees and ankles as difficulty with walking. The examination notes that the examiner was unable to test range of motion for the Veteran’s bilateral knees and ankles. Specifically, the examiner indicated that, upon range of motion testing, the Veteran only moved his knees and ankles slightly, which is inconsistent with findings of normal knee and ankle joint x-rays. In its January 2020 remand, the Board indicated that the June 2019 examiner opined that, without excluding diagnosable conditions, it could not be stated that any claimed bilateral knee or bilateral ankle symptoms meet the criteria of an undiagnosed illness, a diagnosable but medically explained etiology, a diagnosable chronic multisystem illness with partially explained etiology, or a disease with a clear and specific diagnosis. However, the Board indicated that the examiner did not provide such opinion in terms of probability and did not provide a rationale for the purported opinion. Therefore, the Board found the opinion to be inadequate and remanded for an addendum opinion. An addendum opinion was obtained in February 2020, which notes that the Veteran’s reported symptoms of bilateral ankle pain and swelling and bilateral knee pain with buckling sensation, with normal knee and ankle x-rays do not constitute a medical diagnosis. Multiple etiologies can have similar symptoms and only through medical care can one make a diagnosis. Determining the exact cause of these findings is outside the scope of the VA examination. Therefore, the symptoms of bilateral ankle pain and swelling and bilateral knee pain with buckling sensation with normal ankle and knee x-rays not only fail to meet the criteria for a specific diagnosis, but the results “do not meet the criteria of an undiagnosed illness, a diagnosable but medially explained etiology, a diagnosable chronic multisystem illness with partially explained etiology nor a disease with a clear and specific diagnosis.” Therefore, the Veteran’s current bilateral knee and ankle symptoms are not related to a specific exposure event experienced by the Veteran’s service in Southwest Asia. Unfortunately, although the examiner provided further rationale in support of the opinion as to why a specific diagnosis could not be rendered for the Veteran’s symptoms, the examiner did not provide any rationale in the addendum for the opinion that the results do not meet the criteria of an undiagnosed illness, a diagnosable but medically unexplained etiology, or a diagnosable chronic multisystem illness with partially explained etiology as requested. Thus, to ensure compliance with the Board’s January 2020 directives, the Board finds that another remand is necessary. Additionally, the Board notes that the June 2019 knee and ankle examinations indicate that the Veteran was only able to move his knees and ankles slightly, but the examiner nevertheless indicated that the Veteran did not have a knee or ankle disability. In this regard, the Board notes the holding in the Federal Court decision of Saunders v. Wilkie, 886 F.3d 1356 (2018), indicating that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Thus, in light of the examiner’s note that the Veteran was only able to move his knees and ankles slightly, without finding a diagnosed disability, an opinion should be rendered addressing whether the Veteran’s bilateral knee and bilateral ankle symptoms cause functional impairment, such that it may qualify as a disability. The matter is REMANDED for the following action: Obtain an addendum opinion from the VA examiner who conducted the June 2019 VA examination. If the examiner is unavailable, another appropriate examiner should provide the opinion. If necessary, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed bilateral knee and bilateral ankle disabilities. The claims file should be made available to the examiner. The examiner is asked to: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s claimed bilateral knee and bilateral ankle disabilities are due to a (1) a diagnosable chronic multisymptom illness with a partially explained etiology, or (2) a disease with a clear and specific diagnosis. If it is the latter, the examiner must provide the diagnosis of the disability(ies). (b.) If the Veteran’s disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, then the examiner should opine as to whether it is at least as likely as not that the Veteran’s claimed bilateral knee and bilateral ankle disabilities are causally related to his active service, to include as a result of his exposure to environmental hazards while serving in Southwest Asia during the Persian Gulf War. (c.) If no diagnosis is rendered but the examiner determines that the Veteran’s symptom have a clear and specific etiology, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran experiences knee or ankle pain, or other symptoms, which results in an impairment in earning capacity, and whether it is at least as likely as not that such is causally related to his active service. In providing these opinions, the examiner is asked to specifically address the significance, if any, of the 1998 and 1993 STRs noting left knee and left ankle pain. (d.) If the examiner determines that the Veteran’s disability pattern is neither a diagnosable chronic multisymptom illness with a partially explained etiology nor a disease with a clear and specific etiology, then the examiner should opine as to whether the Veteran’s claimed bilateral knee and bilateral ankle symptoms are due to objective indications of a qualifying chronic disability to include (1) an undiagnosed illness, or (2) medically unexplained chronic multisystem illness. For purposes of this opinion, the examiner should consider the following: “Medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or cause 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 multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. “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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. (e.) If no disability, undiagnosed illness, or medically unexplained chronic multisymptom illness is identified, an explanation should be provided. (Continued on the next page)   (f.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.