Citation Nr: 21008878 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-50 678 DATE: February 18, 2021 REMANDED Entitlement to a compensable evaluation for hypogonadism with testosterone deficiency is remanded. Entitlement to a compensable evaluation for migraine headaches status-post concussion is remanded. Entitlement to an evaluation in excess of 10 percent for a left shoulder strain is remanded. Entitlement to service connection for a chronic cough is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for bilateral knee DJD is remanded. Entitlement to service connection for bilateral ankle DJD is remanded. Entitlement to service connection for bilateral feet pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from March 1992 to March 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified before the undersigned at a virtual video conference Board hearing. A transcript of the proceeding has been associated with the claims file. 1. Entitlement to a compensable evaluation for hypogonadism with testosterone deficiency 2. Entitlement to a compensable evaluation for migraine headaches status post-concussion 3. Entitlement to an evaluation in excess of 10 percent for a left shoulder strain A September 2012 rating decision granted service connection for hypogonadism with testosterone deficiency (noncompensable), migraine headaches status post-concussion (noncompensable), and a left shoulder strain (10 percent). Notice of the rating decision was issued in October 2012, and the Veteran filed an October 2013 notice of disagreement as to the initial ratings. Since the issuance of the August 2016 statement of the case (SOC), several VA treatment records have been associated with the claims file showing treatment for the Veteran’s hypogonadism, migraine headaches, and left shoulder strain. See, e.g., CAPRI, received February 2020 at p.3 and 44 of 152. Also, since the issuance of the SOC, the Veteran was provided with December 2017 and January 2020 VA examinations for his migraine headaches. In January 2020, the Board sent a written request for a waiver of consideration of new evidence by the agency of original jurisdiction, but no response was received. Therefore, the Board finds these matters must be remanded so that the AOJ may review this new evidence and re-adjudicate the claims in a supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304. In addition, since his separation from service in 2012, the Veteran has not been afforded VA examinations relating to his left shoulder or hypogonadism with testosterone deficiency (as part of the BDD program). During the July 2020 Board hearing, the Veteran testified of worsening symptoms. Therefore, the Board finds that the Veteran should be afforded new VA examinations relating to those claims. Because the Veteran’s medical records show treatment for manic episodes during the period on appeal, and because he testified at the Board hearing that he believes these manic episodes or symptoms of mania were caused by taking testosterone, the VA examiner should provide a medical opinion as to whether the Veteran’s manic episodes or symptoms of mania were caused by his testosterone supplementation or cessation of this medication. See, e.g., Records, received October 2017 at p.11, 14, 20, 34, 42; CAPRI, received November 2020 at p.37 of 187; Records, received November 2011 at p.6 of 23; CAPRI, received February 2020 at p.16. of 26. 4. Entitlement to service connection for a chronic cough The Veteran claims he has a chronic cough due to his active service. The Veteran’s service treatment records include a February 2009 post-deployment health assessment that shows he had daily exposure to smoke from burn pits in Iraq, albeit he checked the box “no” as to whether he had a chronic cough at that time. See Records, received November 2011 at p.1 of 23. A November 2009 record shows diagnosed atypical mycobacterial pneumonia. See STR at p.125 of 134. Other post-deployment records also document environmental exposures. See STR at p.63-65 of 150. His October 2011 retirement report of medical history shows he reported a chronic cough over time, shortness of breath when running or other high intensity exercise or exertion, and that he coughed constantly even when not sick. See STR at p.130-131 of 150. A November 2011 VA examination report (BDD) shows the Veteran reported a chronic cough for four years with purulent sputum and shortness of breath. Gross inspection of the lungs was normal, and a chest x-ray was within normal limits. The examiner noted that a diagnosis was not possible at that time because pulmonary function testing (PFT) was pending. A September 2012 rating decision denied the claim on the basis that there was no evidence of a current disability. Since the issuance of the August 2016 SOC, new evidence has been associated with the claims file, which includes but is not limited to August 2016 and September 2016 Tricare treatment records that show the Veteran complained of shortness of breath for five years and a cough. A September 2016 pulmonology record shows PFT results possibly indicated asthma, but he needed to return for testing after stopping Advair for two days and Albuterol for 12 hours. See Records, received November 2017 (two sets) at p.41 and 45 of 48, and at p.10 of 65. An October 2016 pulmonology record shows the Veteran reported continued shortness of breath with exertion, as well as reflux symptoms. PFT testing was not consistent with asthma. Further evaluation was offered based on fact that the Veteran reported burn pit exposure and that his symptoms did not begin until after deployment. See Records, received November 2017 at p.19 of 65. As new, relevant evidence has been associated with the claims file, and no waiver of consideration by the AOJ has been received by the Veteran, the Board finds this matter should be remanded so that the AOJ may review all the new evidence and readjudicate the claim by way of a SSOC. Regarding his Iraq service, 38 C.F.R. § 3.317(a) provides that VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that becomes manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016. See also 38 U.S.C. § 1117 (2012). A “qualifying chronic disability” is defined as: (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, as follows: (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; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). Because the Veteran’s service records show he served in Iraq and had daily exposure to burn pits, and because he has reported symptoms of shortness of breath with a cough, as well as reflux, the Veteran should be afforded a new VA examination to address whether the Veteran has a pulmonary condition manifested by shortness of breath and a cough that is related to his active service, including as due to documented burn pit exposure in Iraq, or in the alternative, whether the Veteran has an undiagnosed illness or medically unexplained chronic multisymptom illness due to his burn pit exposure in Iraq. 5. Entitlement to service connection for a neck disability The Veteran asserts he has a neck disability due to his active service. He testified at the Board hearing that he believes it is caused by lots of parachute jumps in service, as well as a motor vehicle accident in service. Consistent with the Veteran’s testimony, his DD Form 214 shows he is the recipient of a parachutist (freefall) badge and that he served in special forces units. A March 2010 service treatment record shows the Veteran incurred a neck strain during physical training (PT). See STR at p.121 of 134. An October 2011 retirement report of medical history shows the Veteran reported right-sided neck pain. See STR at p.130 of 150; see also p.49 of 134. Also, a November 2011 service treatment record shows the Veteran was in a motor vehicle accident and incurred a neck strain. See Records, received November 2011 at p.8 of 23. A November 2011 VA examination report (BDD) shows the Veteran reported he injured his neck in a bad landing jump, and the pain began in 2008. Range of motion testing was normal, and an x-ray was within normal limits. See Report at p.12 and 14; see also Radiology report, received January 2012. The examiner opined that for the claimed cervical condition, there was no diagnosis because there was no pathology to render a diagnosis. Subsequently, the September 2012 rating decision denied the claim for lack of evidence of a current disability. More recent VA treatment records show complaints of neck or cervical pain. See, e.g., CAPRI, received February 2020 at p.2 of 26. The Veteran testified at the Board hearing that he was starting physical therapy in October 2020, and that he had an MRI one year prior, but none of these records have been associated with the claims file. Therefore, this matter should be remanded so that the Veteran may be afforded an opportunity to identify outstanding records of treatment for his claimed cervical condition, including any records of PT and an MRI dated around 2019 so that these records may be associated with the claims file. In addition, the Board acknowledges that the Veteran has not been afforded a VA examination since service (through the BDD program), and he testified at the Board hearing that he has experienced neck pain since the car accident in service. Therefore, on remand, the Veteran should be afforded a new VA examination to address the current nature and etiology of the claimed cervical disability. 6. Entitlement to service connection for bilateral knee DJD The Veteran also claims he has bilateral knee DJD due to his active service. He testified at the Board hearing that he believes it is due to several parachute jumps in service, as well as due to running up ladders aboard ship while wearing firefighter equipment or heavy equipment. He also testified that he twisted and injured his right knee playing basketball. As noted above, the Veteran’s service records show he performed freefall parachuting in service. An April 2005 service treatment record shows a diagnosed left knee strain. See STR at p.18-19 of 150. His January 2007 report of medical history notes left knee pain and a history of twisting it playing basketball. See STR at p.37 of 150. A September 2008 record shows a right knee sprain. See STR at p.43 of 150. A June 2010 record shows he self-reported arthritis in his knees. See STR at p.55 of 150. His October 2011 retirement report of medical history shows he reported knee trouble. See STR at p.130 of 150. A November 2011 VA examination report (BDD) shows the Veteran reported bilateral knee pain, but range of motion testing was normal, and x-rays were within normal limits. The examiner opined there was no diagnosis because there was no pathology to render a diagnosis. Subsequently, the September 2012 rating decision denied the bilateral knee claims for lack of evidence of a current disability. After the issuance of the SOC, additional VA treatment records were associated with the claims file showing complaints of knee pain during the period on appeal. See CAPRI, received February 2020 at p.105-106 of 152, and received October 2019 at p.74 of 110. An April 2012 VA PCP initial visit record that shows diagnosed arthritis of the knees, albeit not clear whether this was merely based on a history by the Veteran. See CAPRI, received February 2020 at p.17 of 26. Because there are VA treatment records dated after the November 2011 BDD VA examination showing diagnosed bilateral knee arthritis, the Board finds this matter should be remanded for a new VA examination to address the current nature of the claimed disability and etiology. 7. Entitlement to service connection for bilateral ankle DJD 8. Entitlement to service connection for bilateral flat feet The Veteran also claims he has bilateral ankle DJD and bilateral flat feet due to his active service. He testified at the Board hearing that he believes it is due to several parachute jumps in service, as well as due to running up ladders aboard ship wearing firefighter equipment or heavy equipment. He also testified that he twisted and injured his right knee playing basketball. As noted above, the Veteran’s service records show he performed freefall parachuting in service. Regarding his ankles, a January 2007 report of medical history notes left ankle pain. See STR at p.37 of 150. A May 2010 record notes left ankle edema after a jump but otherwise normal x-ray. See STR at p.120 of 150. A June 2010 record shows he self-reported arthritis in his ankles. See STR at p.55 of 150. An October 2011 service treatment record shows the Veteran complained of right ankle pain that started 1.5 days prior after a jump; an x-ray was normal, and ankle joint pain was diagnosed. See Records, received November 2011 at p.17 of 23. Regarding his bilateral feet, an October 2007 service treatment record shows complaint of bilateral feet pain. See STR at p.32 of 150. His October 2011 retirement report of medical history shows he reported foot pain during prolonged standing, and that he wore shoe inserts. See STR at p.130 of 150. The Veteran testified at the Board hearing that he was prescribed shoe inserts in service at the Womack Army Clinic, although he acknowledged there was no record of that treatment in the file. A November 2011 VA examination report (BDD) shows the Veteran reported bilateral ankle symptoms since 2008, and he reported bilateral feet symptoms for 38 years (i.e., since around 1973). Ankle ranges of motion were normal. Examination of the feet revealed no pes planus. X-rays of the bilateral ankles and feet were all within normal limits. The examiner opined that there was no diagnosis because there was no pathology to render a diagnosis. The September 2012 rating decision denied the claims for lack of a current disability. The Veteran testified at the Board hearing that he is in receipt of disability income from the Social Security Administration (SSA). As these ankle and feet claims were denied based on a lack of evidence of a current disability, the Board finds the SSA records should be obtained as they may have relevant treatment records. In addition, the Veteran testified at the Board hearing that he experiences ankle pain in the mornings, and that he continues to experience bilateral foot pain. The Board is cognizant that he has never been afforded a VA examination since he separated from service in 2012. Therefore, on remand, the Veteran should be afforded new VA examinations for the claimed bilateral ankle and feet claims to address the current nature and etiology of the claimed conditions. The matters are REMANDED for the following action: 1. Associate with the claims file the Veteran’s records from the SSA. 2. Ask the Veteran to identify all outstanding records of treatment; obtain any necessary Forms 21-4142 authorizations to obtain the records. In that regard, the file includes VA treatment records dated through November 2020, but include no record of a cervical MRI dated around 2019 referenced by the Veteran at the Board hearing. Ask him to identify the date and location of the cervical MRI procedure so it may be obtained. 3. Seek to obtain any outstanding treatment records for foot complaints or shoe inserts from the Womack Army Clinic. See Board hearing transcript. 4. After the above development in paragraphs (1) and (2) has been completed, provide a new VA examination to address the current severity of the Veteran’s left shoulder disability – to include ranges of motion in weight-bearing and nonweight-bearing, active and passive. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups. The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has “considered all procurable and assembled data before stating that an opinion cannot be reached,” and “that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large.” The Board may “accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.” See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should also address the effect of the Veteran’s left shoulder disability on his occupational functioning and activities of daily living. 5. After the above development in paragraphs (1) and (2) has been completed, obtain a new VA examination to address the current severity of the Veteran’s hypogonadism with testosterone deficiency. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. Ask the VA examiner to provide a medical opinion as to whether it is “at least as likely as not” (50 percent or greater probability) that the Veteran’s symptoms of mania or hypomania during the period on appeal were caused by his testosterone supplementation or cessation of that medication. Direct the VA examiner’s attention to the following records - Records, received October 2017 at p.11, 14, 20, 34, 42; CAPRI, received November 2020 at p.37 of 187; Records, received November 2011 at p.6 of 23; CAPRI, received February 2020 at p.16. of 26. The examiner should also address the effect of the Veteran’s hypogonadism with testosterone deficiency on his occupational functioning and activities of daily living. 6. After the above development in paragraphs (1) and (2) has been completed, afford the Veteran a new VA examination to determine the current nature and the etiology of his claimed chronic cough, to include addressing whether it constitutes an undiagnosed illness due to service in the Persian Gulf. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is “at least as likely as not” (50 percent or greater probability) that any chronic cough condition had its onset in service, or is otherwise related to his active service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Please note to the VA examiner that the Veteran has documented exposure to burn pits in Iraq in his service records. Please direct the VA examiner’s attention to - Records, received November 2011 at p.1 of 23; STR at p.125 of 134; STR at p.63-65 of 150; STR at p.130-131 of 150. If no current disability manifested by a chronic cough or shortness of breath is diagnosed on examination, please ask the VA examiner to address whether it is “at least as likely as not” (50 percent or greater probability) that the Veteran’s symptoms are due to an undiagnosed illness, or a medically unexplained chronic multisymptom illness, resulting from his exposures in the Persian Gulf. 7. After the above development in paragraphs (1) and (2) has been completed, afford the Veteran a new VA examination to determine the current nature and the etiology of his claimed cervical disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is “at least as likely as not” (50 percent or greater probability) that any cervical condition had its onset in service, or is otherwise related to his active service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Please direct the VA examiner’s attention to the following treatment records - STR at p.121 of 134; STR at p.130 of 150; STR at p.49 of 134; Records, received November 2011 at p.8 of 23. 8. After the above development in paragraphs (1), (2), and (3) has been completed, afford the Veteran a new VA examination to determine the current nature and the etiology of his claimed bilateral knee DJD, bilateral ankle DJD, and bilateral feet pes planus disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is “at least as likely as not” (50 percent or greater probability) that any knee, ankle, or pes planus condition had its onset in service, or is otherwise related to his active service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Regarding the claimed bilateral knee disability, please direct the VA examiner’s attention to - STR at p.18-19 of 150; STR at p.37 of 150; STR at p.43 of 150; STR at p.55 of 150; STR at p.130 of 150. Regarding the claimed bilateral ankle disability, please direct the VA examiner’s attention to - STR at p.37 of 150; STR at p.120 of 150; STR at p.55 of 150; Records, received November 2011 at p.17 of 23. Regarding the claimed bilateral feet pes planus, please direct the VA examiner’s attention to - STR at p.32 of 150; STR at p.130 of 150. 9. Then, readjudicate the Veteran’s claims and provide him with a Supplemental Statement of the Case (SSOC) based on a review of all new evidence associated with the claims file since the issuance of the August 2016 Statement of the Case (SOC). After the Veteran has been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Juliano, 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.