Citation Nr: 21014848 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-09 804 DATE: March 15, 2021 REMANDED Entitlement to service connection for a disorder manifested by fatigue, respiratory symptoms, and chest pain, to include as due to exposure to environmental hazards and/or as due to qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is remanded. Entitlement to a rating in excess of 10 percent for left knee strain is remanded. Entitlement to a rating in excess of 10 percent for right knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2006 to February 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In June 2018, the Board remanded the above claims for additional development, along with the claim for service connection for a left arm neurological condition, to include as an undiagnosed illness, and a claim for an initial compensable rating for dermatitis. While on remand, the Agency of Original Jurisdiction (AOJ) awarded service connection for a left arm neurological condition in a December 2020 rating decision. As such constitutes a full grant of the benefits sought on appeal, such matter is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997); A.B. v. Brown, 6 Vet. App. 35 (1993). In regard to the claim for an initial compensable rating for dermatitis, in January 2021, the Veteran opted into the Appeals Modernization Act (AMA) by submitting a Decision Review Request: Supplemental Claim (VA Form 20-0995) within 60 days of the issuance of the December 2020 supplemental statement of the case. Consequently, the issue has been withdrawn from the legacy appeals process and will be subsequently docketed and adjudicated under the AMA. While on remand, in a March 2020 rating decision, the AOJ also awarded initial ratings of 10 percent for the Veteran’s service-connected left knee strain and right knee strain, effective February 2, 2013, the date of service connection. Contrary to the AOJ’s advisement, such higher ratings do not constitute a full grant of the benefits sought on appeal. In this respect, in a March 2017 Brief, the Veteran, by way of his representative, requested an evaluation of 50 percent for such disabilities. Therefore, the Board finds that the initial 10 percent ratings assigned do not fully satisfy the Veteran’s appeal in regard to such claims and, therefore, they remain before the Board. Finally, the Board notes that additional evidence, to include VA treatment records, has been associated with the record since the issuance of the December 2020 supplemental statement of the case and the Veteran has not waived AOJ consideration of such evidence. However, as his claims are being remanded, the AOJ will have an opportunity to review all the newly received evidence. REASONS FOR REMAND 1. Entitlement to service connection for a disorder manifested by fatigue, respiratory symptoms, and chest pain, to include as due to exposure to environmental hazards and/or as due to qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is remanded. The Veteran contends that he suffers from severe chronic fatigue, shortness of breath, and chest pain as a result of exposure to burn pits during combat deployments to Iraq and Afghanistan. Initially, the Board notes that the Veteran had documented service in Southwest Asia during the Persian Gulf War. Thus, service connection may be established under 38 C.F.R. § 3.317, which provides that service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117. Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom 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) neuro-psychological 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). The Veteran underwent an examination in August 2013 at which time he denied chronic fatigue symptoms. However, post-service VA treatment records indicate the Veteran consistently reported trouble sleeping, to include insomnia and sleep disturbances. Additionally, in an October 2013 statement, the Veteran reported that he experiences increased fatigue when participating in normal physical activity and is unable to do usual work due to his fatigue. In this regard, the Board notes that the Veteran is service-connected for posttraumatic stress disorder (PTSD) and that his reported sleep disturbances, to include insomnia and nightmares, have been attributed to such disability in September 2015 and October 2018 VA examinations. However, no opinion regarding the etiology of the Veteran’s reported chronic fatigue has been provided. Additionally, at the August 2013 VA examination, the Veteran endorsed respiratory conditions. Specifically, he stated that he began experiencing shortness of breath, chest tightness, and cold symptoms in 2010 and that his symptoms are worsened with heavy physical activity or when exposed to smoke, pollen or dust. No diagnoses related to a respiratory condition were noted on the examination report. The examiner opined that the Veteran’s disability pattern is a diagnosable but medically unexplained chronic multi-symptoms illness of unknown etiology. The VA examiner further stated it is less likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As rationale, the examiner found the Veteran did not report any symptoms or complaints of a respiratory condition and the evaluation was within normal limits; thus, there was no current diagnosis at the examination. In a February 2017 VA examination report, it was noted that the Veteran had a current diagnosis of asthma. Therein, the Veteran reported a breathing problem in 2010 and that his symptoms of wheezing, dry coughing, and shortness of breath began in 2009, after his first deployment. However, the examiner opined that the claimed condition was less likely than not incurred in or caused by the Veteran’s military service but was unable to provide an etiology for such disorder. Post-service treatment records also indicate that the Veteran has diagnoses of exposure to environmental pollution and bronchial hyperreactivity. Here, the Board finds the VA examinations and associated opinions do not completely address all theories of entitlement to service connection as raised by the record. Therefore, a remand is necessary to provide the Veteran with a VA examination to determine if his symptoms, to include chronic fatigue, shortness of breath, dry coughing and wheezing, are associated with clinical diagnoses and, if so, the etiology of such disorders. If not, an opinion is necessary to address whether such are related to an undiagnosed illness. 2. Entitlement to a rating in excess of 10 percent for left knee strain is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee strain is remanded. The Veteran contends the severity of his right and left knee strains warrant ratings in excess of the 10 percent currently assigned. As an initial matter, the Board notes that the Veteran was awarded a noncompensable rating, effective February 2, 2013, the date of service connection, for his knee strain pursuant to Diagnostic Code 5257. As noted above, in March 2020, the AOJ awarded a 10 percent rating, effective February 2, 2013, the date of service connection, for bilateral knee strain, pursuant to Diagnostic Code 5260. While the Veteran requested a 10 percent rating in his January 2014 notice of disagreement, he subsequently requested a rating of 50 percent based on findings from a February 2017 Disability Benefits Questionnaire (DBQ). In this regard, the Board notes that the February 2017 DBQ, completed by the Veteran’s private physician, notes diagnoses of knee strain, knee tendonitis, knee joint osteoarthritis, knee instability, and shin splints. The Veteran reported pain, soreness, and flare-ups of the bilateral knees. While the physician noted that pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups or repeated use over time, he could not provide an estimated range of motion during flare-ups or repeated use over time. In this regard, he noted that pain limits use of lower extremities to walk, stand, and normally function. The Veteran underwent a VA examination in March 2019 pursuant to the Board’s June 2018 remand directives. Upon review, the Board notes the VA examiner who conducted the examination did not record the results of range of motion testing for pain on passive motion, weight-bearing, or nonweight-bearing. Additionally, the VA examiner reported that she could not estimate, without resorting to mere speculation, the loss of range of motion during flare-ups or with repeated use over time because there was no conceptual or empirical basis for making such without directly observing function under those conditions. Further, the VA examiner found there was no “persistant evidence of record, considered valid or reproducible for ratings purposes” that indicates a loss of function during these conditions. With respect to this latter statement, the VA examiner clearly appears to discount the Veteran’s lay statements regarding his symptoms without providing a rationale for such. In light of the above, the Board finds the examinations are incomplete and, thus, a remand is necessary in order to obtain a new examination and addendum opinions addressing such matters. The matters are REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of any disorder manifested by fatigue, respiratory symptoms, and chest pain. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. (A) The examiner should conduct a comprehensive examination and provide details about the onset, frequency, duration, and severity of all symptoms claimed to be associated with Gulf War Illness and an undiagnosed illness, to include chronic fatigue, chest pain, and respiratory symptoms. (B) The examiner should specifically state whether the Veteran’s symptoms of chronic fatigue, shortness of breath, dry cough, and wheezing are attributable to known clinical diagnoses. (C) For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is related to the Veteran’s military service, to include his exposure to burn pits, jet fuel, and other environmental hazards consistent with his service in Southwest Asia. (D) If any symptoms of chronic fatigue, shortness of breath, dry cough and wheezing have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (E) The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran’s symptoms of shortness of breath, dry cough and wheezing, represent a “medically unexplained multi-symptom illness.” Such is defined as 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 complete rationale should be provided for any opinion offered. 2. Afford the Veteran an appropriate VA examination to determine the nature and severity of his bilateral knee disabilities. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. If possible, such examination should be conducted during a flare-up of the affected joints. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s bilateral knee disabilities. (B) The examiner should record the range of motion of the right and left knees observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his right and/or left knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should also indicate whether there is any evidence of tendinitis and/or osteoarthritis and, if so, to describe the symptoms associated with such conditions. If the examiner does not find evidence of any such conditions, he or she should discuss the findings in the February 2017 DBQ. A complete rationale should be provided for any opinion offered. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.