Citation Nr: 21024534 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-11 907 DATE: April 23, 2021 ORDER Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMANDED Entitlement to service connection for a right hand disorder is denied. Entitlement to service connection for a left hand disorder is denied. FINDINGS OF FACT 1. The evidence does not support a finding that the Veteran’s gastrointestinal disorder, to include as due to an undiagnosed illness is related to exposure to environmental hazards during service or related to an in-service injury or disease. 2. The evidence does not support a finding that the Veteran’s right foot disorder is related to an in-service injury or disease. Any arthritis was first shown years post-service. 3. The competent and credible evidence of the claims file reveals that the Veteran’s in-service reporting of right knee pain resolved with no residuals reported at his final discharge. The Veteran’s right knee pain reported in-service healed and would not be the source of the Veteran’s diagnosed bilateral knee pain or be directly related to service. No residuals of the in-service right knee pain are currently demonstrated. Any arthritis was first shown years post-service. 4. The evidence does not support a finding that the Veteran’s left knee disorder is related to an in-service injury or disease. Arthritis did not manifest itself to a compensable degree within a year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.317. 2. The criteria for service connection for a right foot disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to June 1991, and from January 2002 to September 2002. He also had periods of active duty for training, including from July 1975 to November 1975. In October 2019, the Board remanded these issues for additional development. The Board finds that there was substantial compliance with the remand directives on appeal as discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 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, 1166 -67 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is on the list of diseases presumed to have been incurred in-service and receives a one-year presumption. In addition, pursuant to applicable law and regulations, VA has authorized the payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of disability of 10 percent or more not later than December 31, 2021. Under 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 for infectious diseases. 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 U.S.C. § 1117; 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. at 8-9. 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) A medically unexplained chronic multi-symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as 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. A “medically unexplained chronic multi-symptom illness” 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. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “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. 38 C.F.R. § 3.317 (a)(3). 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). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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. 38 C.F.R. § 3.317 (a)(4). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 1. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness The Veteran contends that his gastrointestinal disorder is related to his exposure to burn pits in the Persian Gulf. The Veteran’s service treatment records (STRs) do not reveal any complaints, diagnosis, or treatments for a gastrointestinal disorder in-service. At an April 1991 examination prior to separation, the Veteran did not report, nor did the examiner diagnose any stomach or intestinal disorders. In July and August 2002 examinations prior to separation, the Veteran did not report, nor did the examiner diagnose the Veteran with any gastrointestinal disorders. In a March 2017 VA Gulf War General Medical examination, the examiner diagnosed the Veteran as negative for any gastrointestinal disorders. The examiner also diagnosed the Veteran as negative for any medically unexplained chronic multi-symptom illnesses related to his gastrointestinal region. In a July 2020 VA intestinal and stomach examinations, the examiner diagnosed the Veteran as negative for any intestinal and stomach disorders. The examiner opined that the Veteran’s reported gastrointestinal disorder is less likely than not related to an in-service, injury, event, or illness. The examiner explained that the medical records do not support a gastrointestinal disorder related to the Veteran’s time in-service. To summarize, the Veteran’s STRs reveal no complaints, diagnosis, or treatments for any gastrointestinal disorders, to include as due to an undiagnosed illness in-service. Furthermore, there is no indication of any complaints or treatments for any gastrointestinal disorder related to in-service undiagnosed illness for many years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). This premise is further evidenced by the fact that the Veteran did not file a compensation claim for his service-related gastrointestinal disorder until years after discharge. The foregoing summary of the treatment record reveals no possibility for service connection for a gastrointestinal disorder. Although the Veteran contends that his gastrointestinal disorder is related to his time in-service, there is no in-service treatment for gastrointestinal problems, or for many years after discharge. Moreover, the Veteran repeatedly denied any gastrointestinal disorder during various VA outpatient appointments post-service. Furthermore, various examiners diagnosed the Veteran as negative for any current gastrointestinal disorders. Lastly, the Board acknowledges that the July 2020 VA examiner diagnosed the Veteran as negative for any medically undiagnosed or diagnosable, but medically unexplained chronic multi-symptom illness associated with his time in-service. The examiner opined that the Veteran’s gastrointestinal disorder is less likely than not related to an in-service, injury, event, or illness. The examiner explained that the Veteran does not have a diagnosed stomach disorder related to his time in-service. The Board also reviewed the Veteran’s lay statements asserting that the onset of his gastrointestinal disorder is related to his exposure to burn pits in the Persian Gulf. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a gastrointestinal disorder of as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As noted above, in order to be granted service connection, the Veteran must have “a current disability” Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As the claims file lacks evidence of a gastrointestinal disorder in-service and immediately thereafter, the Board finds that the evidence of the record indicates that the Veteran’s gastrointestinal disorder, to include as due to an undiagnosed illness related to his deployment in the Persian Gulf is less likely than not related to an injury, event, or occurrence in-service. As a pathology for a gastrointestinal disorder has not been shown to be related to the Veteran’s time in-service, the Board finds that the clinical evidence does not support the Veteran’s contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right foot disorder The Veteran contends that his right foot disorder is related to his time in-service. The Veteran’s STRs do not reveal any complaints, diagnosis, or treatments for a right foot disorder in-service. At an April 1991 examination prior to separation, the Veteran did not report, nor did the examiner diagnose any right foot disorders. Similarly, in July and August 2002 examinations prior to separation, the Veteran did not report, nor did the examiner diagnose the Veteran with a right foot disorder. In an April 2003 VA examination, the examiner noted peripheral neuropathy with decreased sensation in the Veteran’s feet. This was noted during an examination for long-standing diabetes. There was no opinion that it was related to service in any way. In a July 2020 VA foot examination, the examiner diagnosed the Veteran with right foot pes planus. The examiner opined that the Veteran’s right foot disorder is less likely than not related to an in-service, injury, event, or illness. The examiner explained that the Veteran was diagnosed with pes planus; however, he noted that the medical records do not support a right foot disorder related to the Veteran’s time in-service. In a January 2021 VA addendum opinion, the examiner was asked to provide a rationale concerning whether the Veteran’s right foot disorder is related to his time in-service. The examiner noted that the medical record continues to lack sufficient information as well as there is no continuity of complaints to support that a right foot disorder is related to the Veteran’s in-service work related duties. The examiner noted that regarding the Veteran’s claimed right foot arthritis, this could not be confirmed as the Veteran was a no show to the x-ray appointment; therefore, a current diagnosis of right foot arthritis could not be made. The examiner explained that because there is not a firm diagnosis of arthritis an opinion could not be provided on if the claimed arthritis manifested in the year after the Veteran’s separation from active duty service. The Board also reviewed the Veteran’s lay statements asserting that the onset of his right foot disorder is related to his time in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a right foot disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To summarize the Veteran’s STRs do not reveal any complaints, diagnosis, or treatments for a right foot disorder. Furthermore, there is also no indication of any complaints or treatments for any right foot disorders related to service or for several years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). This premise is further evidenced by the fact that the Veteran did not submit a compensation and pension application for his service-related right foot disorder until many years after separation from service. In fact, the initial claim for disability compensation did not include reference to the right foot disorder. Therefore, the foregoing summary of the treatment record reveals no possibility for service connection for a right foot disorder on a direct basis. As indicated above, the Veteran’s STRs do not report any findings of treatment for a right foot disorder. Furthermore, the Board acknowledges the most recent January 2021 VA examiner opinion. The examiner noted that the medical record continues to lack sufficient information as well as there is no continuity of complaints to support that a right foot disorder is related to the Veteran’s in-service work related duties. As the claims file lacks evidence of a right foot disorder in-service and immediately thereafter, the Board finds that the evidence of the record indicates that the Veteran’s right foot disorder is less likely than not related to an injury, event, or occurrence in-service. As a pathology for a right foot disorder has not been shown to be related to the Veteran’s time in-service, the Board finds that the clinical evidence does not support the Veteran’s contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right knee disorder 4. Entitlement to service connection for a left knee disorder The Veteran contends that his bilateral knee disorder is related to his time in-service. During an April 1991 examination prior to separation, the Veteran reported right knee pain. The examiner noted generalized tenderness of the right knee. The Veteran did not report, nor did the examiner diagnose any left knee disorders. In July and August 2002 examinations prior to separation, the Veteran did not report, nor did the examiner diagnose the Veteran with any right or left knee disorders. In an April 2003 VA examination, the examiner noted peripheral neuropathy with decreased sensation just below the Veteran’s knees. Again, this was in connection with an examination for long-standing diabetes. There was not suggesting that this finding was in anyway related to service. In a November 2016 VA knee examination, the examiner diagnosed the Veteran with right knee osteoarthritis and a right knee strain. The examiner did not diagnose any left knee disorders. The examiner opined that the Veteran’s right knee strain is less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that there is no established connection or clearly documented continuum of care from the Veteran’s service until his right knee diagnosis in 2016. VA outpatient treatment records reveal that the Veteran regularly complained of bilateral knee pain. In a July 2020 VA knee examination, the examiner diagnosed the Veteran with arthritis of the knees bilaterally. The examiner opined that the Veteran’s bilateral knee disorder is less likely than not related to an in-service, injury, event, or illness. The examiner explained that the record lacks sufficient information to support the Veteran’s reporting that the onset of is bilateral knee disorder is related to his time in-service. In a January 2021 VA addendum opinion, the examiner was asked to provide a rationale concerning whether the Veteran’s bilateral knee disorder is related to his time in-service. The examiner opined that it is less likely than not that the Veteran’s bilateral knee disorder, to include arthritis is related to his time in-service. The examiner noted that the medical record continues to lack sufficient information as well as there is no continuity of complaints to support that the Veteran’s bilateral knee disorder is related to in-service work related duties. The examiner noted that regarding the Veteran’s claimed bilateral knee arthritis, this could not be confirmed as the Veteran was a no show to the VA x-ray appointment, therefore, a current diagnosis of bilateral knee arthritis could not be made. The examiner explained that because there is not a firm diagnosis of arthritis, an opinion could not be provided concerning as to whether the claimed arthritis manifested in the year after the Veteran’s separation from active duty service. The examiner also noted that the Veteran’s prior diagnosis of knee arthritis was made in error, and it should be amended to show a diagnosis of knee strain. The Board also reviewed the Veteran’s lay statements asserting that the onset of his bilateral knee disorder is related to his time in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a bilateral knee disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the foregoing summary of the treatment record reveals no possibility for service connection for a bilateral knee disorder on a direct basis. As indicated above, the Veteran’s STRs reveal an isolated reporting of right knee pain prior to his initial separation in 1991. However, in July and August 2002 examinations prior to his final separation, the Veteran did not report, nor did the examiner diagnose the Veteran with any knee disorders. Furthermore, the Board acknowledges the most recent January 2021 VA examiner opinion. As indicated above, the examiner noted that the medical record continues to lack sufficient information as well as there is not continuity of complaints to support that the Veteran’s bilateral knee disorder is related to his in-service work related duties. Moreover, the examiner noted that the Veteran’s prior diagnosis of knee arthritis was made in error, and it should be amended to show a diagnosis of a knee strain. The examiner opined that it is less likely than not that the Veteran’s bilateral knee disorder, to include arthritis is related to his time in-service. As the claims file lacks evidence of a bilateral knee disorder in-service and immediately thereafter, the Board finds that the evidence of the record indicates that the Veteran’s bilateral knee disorder is less likely than not related to an injury, event, or occurrence in-service. As a pathology for a bilateral knee disorder has not been shown to be related to the Veteran’s time in-service, the Board finds that the clinical evidence does not support the Veteran’s contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a right hand disorder 2. Entitlement to service connection for a left hand disorder The Veteran contends that his bilateral hand disorder is related to his time in-service. The Veteran’s service treatment records (STRs) do not reveal any complaints, diagnosis, or treatments for a right or left hand disorder in-service. At an April 1991 examination prior to separation, the Veteran did not report, nor did the examiner diagnose any hand disorders. Similarly, in July and August 2002 examinations prior to separation, the Veteran did not report, nor did the examiner diagnose the Veteran with any left or right hand disorders. In an April 2003 VA examination, the examiner noted peripheral neuropathy with decreased sensation in the Veteran’s hands. VA outpatient treatment records reveal that the Veteran underwent treatment for his left and right hand disorders during the period on appeal. Specifically, in a March 2018 VA outpatient orthopedic treatment note, the Veteran was diagnosed with bilateral carpal tunnel syndrome. The Veteran was prescribed braces for his hands. In a July 2020 VA hand examination, the examiner diagnosed the Veteran with carpal tunnel syndrome bilaterally and scapholunate advanced collapse of the right hand. The examiner opined that the Veteran’s hand disorder is less likely than not related to an in-service, injury, event, ot illness. The examiner explained that the Veteran was diagnosed with scapholunate advanced collapse in 2018 and a history of carpal tunnel syndrome. The examiner noted that the medical records do not support a bilateral hand disorder with arthritis during service or related to the Veteran’s time in-service. In a January 2021 VA addendum opinion, the examiner noted September 2018 medical record notes indicate that the Veteran has a history of carpal tunnel syndrome with scapholunate advanced collapse. The examiner determined that a follow up examination should be done by a different examiner to examine the Veteran’s carpal tunnel syndrome and its relationship to service. The examiner also explained that because there is not a firm diagnosis of arthritis, an opinion could not be provided as to whether the claimed arthritis manifested in the year after the Veteran’s separation from active duty service. After a review of the record, the Board has determined that the Veteran’s claims need to be remanded and the examiner should provide an examination and opinion as to the issues above. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 1. Provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is required to answer the enclosed, such examination should be scheduled. After a thorough review of the medical history the examiner is requested to prepare a detailed opinion which answers the following: Taking into consideration the Veteran’s STR’s, lay statements, post service VA and private treatment records, is it as likely as not (that is a probability of 50 percent or greater) that any carpal tunnel syndrome or reported arthritis of the hands manifested in service or is otherwise causally or etiologically related to his military service. A specific discussion should focus on the January 2021 examiners addendum opinion, reporting that the Veteran has a history of carpal tunnel syndrome with scapholunate advanced collapse. If a pathology for the Veteran’s carpal tunnel syndrome or reported arthritis of the hands is not found to be related to his time in-service that should be specifically set out with the factors considered in making that determination. Please provide a complete rationale for all opinions entered and review the entire record including lay statements and hearing testimony. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. 2. The AOJ must ensure that the examiner’s report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that   the examiner documents consideration of the electronic claims file. If the report is insufficient, the AOJ should take corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.