Citation Nr: 21010211 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-32 294 DATE: February 24, 2021 ORDER 1. Entitlement to service connection for joint pain, neck, is denied. 2. Entitlement to service connection for joint pain, bilateral hips, is denied. 3. Entitlement to service connection for joint pain, left shoulder, is denied. 4. Entitlement to service connection for joint pain, bilateral elbows/forearms, is denied. 5. Entitlement to service connection for joint pain, left hand, is denied. REMANDED 1. Entitlement to service connection for joint pain, back, is remanded. 2. Entitlement to service connection for joint pain, right shoulder, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has joint pain of the neck that results in functional impairment of earning capacity to constitute a disability for VA compensation purposes, and his symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 2. The preponderance of the evidence of record is against finding that the Veteran has joint pain of the bilateral hips that results in functional impairment of earning capacity to constitute a disability for VA compensation purposes, and his symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 3. The preponderance of the evidence of record is against finding that the Veteran has joint pain of the left shoulder that results in functional impairment of earning capacity to constitute a disability for VA compensation purposes, and his symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 4. The preponderance of the evidence of record is against finding that the Veteran has joint pain of the bilateral elbows/forearms that results in functional impairment of earning capacity to constitute a disability for VA compensation purposes, and his symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 5. The preponderance of the evidence of record is against finding that the Veteran has joint pain of the left hand that results in functional impairment of earning capacity to constitute a disability for VA compensation purposes, and his symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness. CONCLUSIONS OF LAW 1. The criteria for service connection for joint pain, neck, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.97, Diagnostic Codes (DC) 8850-5002. 2. The criteria for service connection for joint pain, bilateral hips, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.97, Diagnostic Codes (DC) 8850-5002. 3. The criteria for service connection for joint pain, left shoulder, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.97, Diagnostic Codes (DC) 8850-5002. 4. The criteria for service connection for joint pain, bilateral elbows/forearms, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.97, Diagnostic Codes (DC) 8850-5002. 5. The criteria for service connection for joint pain, left hand, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.97, Diagnostic Codes (DC) 8850-5002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1979 to August 1992, including active service in the Southwest Asia theater of operations. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office. This claim has come before the Board on two separate occasions. The first time in October 2017, it was remanded for an examination. The second time in January 2020, it was remanded again for an examination and medical opinion. The Veteran testified at a Board videoconference hearing in March 2017, and a copy of the hearing transcript has been obtained and associated with the record. The Veterans Law Judge who conducted the March 2017 hearing is no longer employed at the Board, so the Veteran was afforded the option of testifying at an additional Board hearing; however, the Veteran declined an additional hearing in November 2019.   Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board may consider pain a current disability as outlined above; however, to be considered as such, the pain must rise to the level of functional impairment of earning capacity. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, No. 18-4349. Service connection may also be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested 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, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, 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). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). The Veteran had active service in Saudi Arabia from September 1990 to March 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). 1. Entitlement to service connection for joint pain, neck I. Presumptive Service Connection The Veteran contends he is entitled to service connection for joint pain of the neck. In a February 2020 VA examination, the Veteran reported that the onset of his neck pain was in 2016, when he felt a tingling sensation in the right side of the neck. It is mentioned the Veteran had a nerve condition study where he was diagnosed with carpal tunnel syndrome, but no diagnosis was made regarding the neck. The Veteran described having flare-ups as for no apparent reason having worse tingling in his neck, and that he has pain that causes functional loss. He also claims his ability to climb ladders is impaired because he fears getting weak and falling. He reported no pain or weakness in the arms, but he is concerned it could happen. The examiner noted the Veteran has normal range of motion, and no muscle spasms, no muscle atrophy, and no ankylosis. The Veteran did have hypoactive reflexes, and the examiner explained them as being likely age related and not due to trauma or a diagnosis of something, particularly since the reflex changes were bilateral. The examiner concluded there was no evidence of a neck condition, that it does not qualify as an undiagnosed illness, and that his neck complaints are less likely than not associated with military service. The examiner continued by saying the Veteran’s neck was entirely normal and his complaint is a tingling sensation in the right trapezius, but was unable to substantiate or confirm any neck injury or treatment during service, therefore, the examiner was unable to relate the Veteran’s complaint of a neck condition to service. As there is no diagnosis, the Veteran’s signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). They can potentially qualify as an undiagnosed illness; however, in this instance, they have not manifest to a degree of 10 percent or more. Since joint pain of the neck is not in the rating decision, the RO considered 5002, arthritis rheumatoid (atrophic), when trying to assess whether he meets a 10 percent or more rating. According to DC 5002, in order for the Veteran to reach a 10 percent rating, he must have one or two exacerbations a year in a well-established diagnosis. However, while the Veteran reports flare-ups with tingling and mild pain, he does not have a well-established diagnosis nor one to two exacerbations per year. Stankevich v. Nicholson, 19 Vet. App. 470 (2006) (holding that a BVA decision must analyze and explain why a particular diagnostic code was selected as the one most analogous to the undiagnosed illness). Accordingly, presumptive service connection as an undiagnosed illness is not warranted. II. Direct Service Connection The Veteran contends he is entitled to service connection for joint pain of the neck. That the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Court of Appeals for Veterans' Claims recently clarified the holding in Saunders; the CAVC reiterated that pain not rising to the level of functional impairment of earning capacity is not considered a current disability under VA law and regulations. See Wait v. Wilkie, No. 18-4349. As discussed above, the Veteran had a VA examination in February 2020. During this examination, he told the examiner the tingling in his neck began in 2016. The medical records confirm there is no record of neck pain complaints or treatments during service or after service prior to him saying the onset began in 2016. The Veteran also said that his joint pain in his neck causes functional impairment during flare-ups but continues to describe it as a tingling with mild pain that he relieves with “popping” his neck. In accordance with Saunders v. Wilkie and clarified by Wait v. Wilkie, “pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a ‘disability’ under 38 U.S.C. § 1110. Functional impairment is defined as the inability of the body or a constituent part “to function under the ordinary conditions of daily life including employment.” 38 C.F.R. § 4.10. The record does not show nor has the Veteran asserted he is unable to work or perform any occupational tasks due to his joint pain in his neck, only that he does not climb ladders for fear he could go weak and fall. Accordingly, the Board finds that the Veteran’s flare-ups and pain that accompanies do not rise to the level of a current disability necessary for service connection. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that there is a current disability that is subject to service connection. As the preponderance of the evidence is against a finding of a current disability, the threshold requirement for substantiating a claim for direct service connection is not met, and the claim for service connection for joint pain, neck, must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for joint pain, bilateral hips. I. Presumptive Service Connection The Veteran claims he is entitled to service connection for joint pain, bilateral hips. The Veteran had a VA examination in February 2020. During this examination, the examiner noted the Veteran said his hip condition began in 2016. He reported having pain in both hips, indicating there was no inciting incident and the Veteran was not seen by a doctor. The examination showed there was no pain during the examination, including no pain during repetitive motions. However, the Veteran reported he has flare-ups causing more pain, and suffered functional loss or functional impairment presenting as impairing his standing and walking and requiring him to lie down at times for relief of the discomfort. The examiner said there was no objective evidence to warrant a diagnosis of a hip condition, nor do either qualify as an undiagnosed illness. He also opined it is less likely than not associated with military service. As there is no diagnosis, the Veteran’s signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). They can potentially qualify as an undiagnosed illness; however, in this instance, they have not manifest to a degree of 10 percent or more. Since joint pain of the hips is not in the rating decision, the RO considered 5002, arthritis rheumatoid (atrophic), when trying to assess whether he meets a 10 percent or more rating. According to DC 5002, in order for the Veteran to reach a 10 percent rating, he must have one or two exacerbations a year in a well-established diagnosis. However, while the Veteran reports flare-ups and pain, he does not have a well-established diagnosis nor one to two exacerbations per year. Stankevich v. Nicholson, 19 Vet. App. 470 (2006) (holding that a BVA decision must analyze and explain why a particular diagnostic code was selected as the one most analogous to the undiagnosed illness). Accordingly, presumptive service connection as an undiagnosed illness is not warranted. II. Direct Service Connection The Veteran contends that he is entitled to service connection for joint pain, bilateral hips. That the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Court of Appeals for Veterans' Claims recently clarified the holding in Saunders; the CAVC reiterated that pain not rising to the level of functional impairment of earning capacity is not considered a current disability under VA law and regulations. See Wait v. Wilkie, No. 18-4349. As mentioned above, during the Veteran’s February 2020 VA examination, it is noted the Veteran suffers flare-ups and described suffering functional loss due to pain causing impairment with standing and walking. He reported no pain during the examination, no pain during repetitive motion, and measured at normal range of motion. The examiner also opined that the Veteran’s hip condition does not impact his ability to perform any type of occupational task. In accordance with Saunders v. Wilkie and clarified by Wait v. Wilkie, “pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a ‘disability’ under 38 U.S.C. § 1110. Functional impairment is defined as the inability of the body or a constituent part “to function under the ordinary conditions of daily life including employment.” 38 C.F.R. § 4.10. The record does not show nor has the Veteran asserted he is unable to work or perform any occupational tasks due to his joint pain in his bilateral hips. Accordingly, the Board finds that the Veteran’s flare-ups and pain that accompanies do not rise to the level of a current disability necessary for service connection. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that there is a current disability that is subject to service connection. As the preponderance of the evidence is against a finding of a current disability, the threshold requirement for substantiating a claim for direct service connection is not met, and the claim for service connection for joint pain, bilateral hips, must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for joint pain, left shoulder. 4. Entitlement to service connection for joint pain, bilateral elbows/forearms. 5. Entitlement to service connection for joint pain, left hand. I. Presumptive Service Connection The Veteran claims he is entitled to service connection for joint pain, left shoulder, bilateral elbows/forearms, and left hand. The Veteran had a VA examination in February 2020. During this examination, the examiner noted the Veteran suffered an injury to his right elbow and right shoulder while repelling from a helicopter during training. He noted the injury is about the same, somewhat improved, and that the Veteran suffered no current symptoms. He reported no injuries or event involving his left hand, left elbow/forearm, or left shoulder. The Veteran reported no pain, no flare-ups, and no functional impairment of his left shoulder, elbows/forearms, or his left hand. The examiner said there was no objective evidence to warrant a diagnosis of a left shoulder, elbow, or a left-hand condition, nor do they qualify as an undiagnosed illness. As there is no diagnosis, the Veteran’s signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). They can potentially qualify as an undiagnosed illness; however, in this instance, they have not manifest to a degree of 10 percent or more. Since joint pain of the shoulders, elbows, or hands are not in the rating decision, the RO considered 5002, arthritis rheumatoid (atrophic), when trying to assess whether he meets a 10 percent or more rating. According to DC 5002, in order for the Veteran to reach a 10 percent rating, he must have one or two exacerbations a year in a well-established diagnosis. However, the Veteran reports no flare-ups, no pain, and no functional impairment, he also does not have a well-established diagnosis nor one to two exacerbations per year. Stankevich v. Nicholson, 19 Vet. App. 470 (2006) (holding that a BVA decision must analyze and explain why a particular diagnostic code was selected as the one most analogous to the undiagnosed illness). Accordingly, presumptive service connection as an undiagnosed illness is not warranted. II. Direct Service Connection The Veteran contends he is entitled to service connection for joint pain, left shoulder, bilateral elbows/forearms, and left hand. That the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As discussed above, the Veteran does not have a diagnosed current disability. While he contends that he suffers from joint pain of his left shoulder, bilateral elbows and left hand, his VA examination noted no pain and no functional limitations or impairments. The medical records do not show a diagnosis of any condition of the left shoulder, bilateral elbows/forearm, or left hand. Consequently, the Board finds that the preponderance of the evidence weighs against a finding that there is a current disability that is subject to service connection. Therefore, as the preponderance of the evidence is against a finding of a current disability, and the claim for service connection for joint pain, left shoulder, bilateral elbow/forearms and left hand must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for joint pain, back, is remanded. The Veteran contends he is entitled to service connection for joint pain, back. In February 2020, the Veteran attended a VA examination. The Veteran reported his back pain began in 2012, and eventually showed degenerative joint disease (DJD). The examiner determined that since there was nothing in the medical record where the Veteran was treated for back pain or any significant incident in which he injured his back during service, that he could not relate his current back injury to his military service. Under the Gulf War Illness presumptions, a medically unexplained chronic multi-symptom illness (MUCMI) is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(ii). It 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. A chronic multi-symptom illness will not be considered medically unexplained when both the etiology and the pathophysiology of the illness is partially understood. 38 C.F.R. § 3.317(a)(2)(ii). The determination of whether the illness is medically unexplained is particular to the individual Veteran in each case. See Stewart v. Wilkie, 30 Vet. App. 383, 391 (2018). Although the examiner addressed the etiology of the Veteran's DJD, neither its etiology nor its pathophysiology is clearly explained in the February 2020 opinion. An additional examination is warranted to address whether the etiology and pathophysiology of DJD is fully understood considering the Veteran's individual circumstances, as required by the Court's holding in Stewart. 2. Entitlement to service connection for joint pain, right shoulder, is remanded. The Veteran contends he is entitled to service connection for joint pain, right shoulder. The Veteran had a VA examination in February 2020. As noted above, the Veteran suffered an injury to his right shoulder during an exercise in service. He reported he currently still suffers pain and flare-ups in his right shoulder, and that his ability to lift and carry with the right arm is functionally impaired. His range of motion measured normal during active and passive movements for both shoulders. However, he did report pain with his right shoulder during flare-ups and with repetitive use over time. No muscle atrophy or ankylosis was noted, and the examiner determined the Veteran’s condition did not impact his ability to perform any type of occupational task. The examiner opined that there was no objective or subjective evidence of a shoulder condition noted on examination, and that the bilateral shoulder condition was less likely than not associated with military service. However, according to Wait, pain not rising to the level of functional impairment of earning capacity is not considered a current disability under VA law and regulations, and functional impairment is defined as the inability of the body or a constituent part “to function under the ordinary conditions of daily life including employment.” See Wait v. Wilkie, No. 18-4349. The Veteran reported being unable to lift and carry, components of daily life, due to the pain in his right shoulder. Therefore, an opinion on whether the Veteran’s right shoulder pain is related to his injury in service is necessary in order for the Board to make a fully informed decision. The matters are REMANDED for the following actions: 1. Forward the claims file to an appropriate clinician to determine whether the current degenerative joint disease is related to the Veteran's military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as telehealth interview is acceptable. The VA clinician is asked to respond to the following inquiries: (a.) As to the Veteran's DJD, is the etiology OR pathophysiology of the condition not understood AT ALL as to this particular Veteran? (b.) As to the Veteran's DJD, if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to this particular Veteran, is it at least as likely as not that the DJD is attributable to service, to include exposures therein? 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder pain is at least as likely as not related to his repelling injury during service. In rendering these opinions, the examiner is advised that the Veteran is competent to report his 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 may not dismiss a Veteran's report of symptoms capable of lay observation solely on the basis that they are not recorded in contemporaneous medical records. A complete rational must be provided for all opinions expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.