Citation Nr: 21024750 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-67 540 DATE: April 26, 2021 REMANDED Entitlement to service connection for a claimed disability of the right elbow is remanded. Entitlement to service connection for a claimed disability of the left elbow is remanded. Entitlement to service connection for a claimed disability of the lumbar spine is remanded. Entitlement to service connection for a claimed disability of the right knee is remanded. Entitlement to service connection for a claimed disability of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2007 to May 2012. This case comes to the Board from a May 2015 decision of the Agency of Original Jurisdiction (AOJ), which denied service-connected compensation for claimed disabilities of the knees, elbows, and lumbar spine. The Veteran timely appealed these rulings. In August 2020, he testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. During a series of VA examinations in October 2017, the Veteran was diagnosed with cubital tunnel syndrome of both elbows, patellofemoral pain syndrome of both knees, and lumbosacral strain. Thus, for all of his pending claims, this evidence satisfies the current disability requirement. The Veteran’s post-service medical treatment records, however, frequently refer to joint pain of the elbows, knees, and low back, respectively, without indicating a specific diagnosis. The Veteran attributes his current disabilities to repetitive lifting and carrying of heavy objects during his service aboard an aircraft carrier. In his hearing testimony, he explained that his duties aboard the ship included working in the laundry and stocking supplies at the ship’s store. According to the Veteran, he would frequently spend many consecutive hours hauling heavy laundry bags, packages of food, and other supplies up and down the steps and ladder wells between the decks of the ship. The available service records are consistent with the Veteran’s testimony. To help decide the claim, the AOJ obtained a series of three medical opinions from the physician who examined the Veteran in October 2017. These opinions concerned the elbows, knees, and lumbar spine/low back. According to the examiner, it was less likely than not that any of the current disabilities of these joints were related to the Veteran’s naval service. To explain all three conclusions, the examiner provided essentially the same explanation: “In summary, no reported [elbow/bilateral knees/back] issues noted at entry into service, no evaluation for [elbow/knee/back] issues during service, and no self reported issues involving [elbow/knee/back] condition at separation from service. Nevertheless, the claimant reports at VA clinic visits that [elbow/knee/back] issues started from 2008 while in service. Therefore, based upon the exam and records provided, the veteran's current [elbows/knees/back] condition unfortunately is less likely than not caused by the claimed in-service injury or event.” This rationale for the examiner’s unfavorable conclusions is inadequate. To satisfy the duty to provide an adequate opinion, a VA examiner cannot rely on the absence of in-service medical records, standing alone, to justify an unfavorable conclusion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To support the examiner’s unfavorable conclusions, the October 2017 opinions rely almost entirely on the absence of in-service treatment records for back, elbow, and knee pain. Moreover, the examiner did not discuss the Veteran’s central contention in this case. The Veteran suggests that the gradual impact of lifting and carrying many loads of heavy supplies up and down the stairs and ladder wells of the aircraft carrier caused him, over time, to develop disabilities manifested by chronic pain in the elbows, knees, and low back. The fact that he is not attributing these disabilities to a specific, traumatic injury could potentially explain the absence of any in-service treatment records describing these disabilities. Under these circumstances, an adequate medical opinion would address whether the Veteran’s theory is a plausible explanation for his current symptoms and diagnoses. Unfortunately, none of the October 2017 opinions inform the reader whether or not the Veteran’s theory is consistent with the medical evidence. Although the Board regrets the need for further delay, it is necessary to remand this appeal to obtain adequate opinions. There is evidence that the Veteran’s ship entered the Persian Gulf while he was part of its crew. Because he served in the Persian Gulf at the relevant time, the Veteran is a Persian Gulf veteran as defined in 38 C.F.R. § 3.317(e). When a Persian Gulf veteran exhibits objective indications of chronic disability, including muscle and joint pain that may be manifestations of undiagnosed illness, VA is authorized to award service-connected disability compensation despite the absence of a specific diagnosis. 38 C.F.R. § 3.317(b). The post-remand examiner should prepare opinions addressing whether the Veteran’s joint pain of the elbows, knees, and low back are symptoms of an undiagnosed illness or of a medically explained chronic multi-symptom illness pursuant to 38 C.F.R. § 3.317. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA treatment since November 2016. 2. Schedule the Veteran for a new VA examination for the purpose of assessing the nature and etiology of his claimed disabilities of the bilateral elbows. The complete claims file should be made available to the examiner, who should thoroughly review the file before he or she prepares the requested opinion. After the records review and the examination are complete, the examiner should prepare a report responding to the following questions: (a) Does the Veteran have a current diagnosable disability manifested by pain in the elbows, including cubital tunnel syndrome? (b) If the Veteran has a diagnosable disability manifested by pain in either elbow, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in service or is otherwise related to any in-service disease, injury or event, including the Veteran’s work lifting and moving heavy loads of laundry and other supplies between the decks of an aircraft carrier? (c) If the Veteran does not have a diagnosable disability manifested by pain in one or both elbows, please detail the symptoms of which the Veteran complains (e.g. pain) and specifically note if there are objective indications of chronic disability (to include undiagnosed illness). If the Veteran does not have a diagnosable condition manifested by pain in either or both elbows, please indicate whether, based on a review of the record, the undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2021. 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. The examiner should provide a complete rationale for all the requested opinions. In explaining his or her answer to part 2(b) of these instructions, the examiner should indicate whether it is plausible that the repetitive lifting and moving of heavy objects described by the Veteran in his hearing testimony could potentially explain his current elbow pain. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO PROVIDE INFORMATION ABOUT SYMPTOMS HE HAS PERSONALLY EXPERIENCED AND THAT THE ABSENCE OF IN-SERVICE TREATMENT RECORDS CONCERNING THE CLAIMED DISABILITY IS NOT, BY ITSELF, SUFFICIENT TO SUPPORT AN UNFAVORABLE OPINION. 3. Schedule the Veteran for a new VA examination for the purpose of assessing the nature and etiology of his claimed disabilities of the bilateral knees. The complete claims file should be made available to the examiner, who should thoroughly review the file before he or she prepares the requested opinion. After the records review and the examination are complete, the examiner should prepare a report responding to the following questions: (a) Does the Veteran have a current diagnosable disability manifested by pain in the knees, including patellofemoral pain syndrome? (b) If the Veteran has a diagnosable disability manifested by pain in either knee, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in service or is otherwise related to any in-service disease, injury or event, including the Veteran’s work lifting and moving heavy loads of laundry and other supplies between the decks of an aircraft carrier? (c) If the Veteran does not have a diagnosable disability manifested by pain in one or both knees, please detail the symptoms of which the Veteran complains (e.g. pain) and specifically note if there are objective indications of chronic disability (to include undiagnosed illness). If the Veteran does not have a diagnosable condition manifested by pain in either or both knees, please indicate whether, based on a review of the record, the undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2021. 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. The examiner should provide a complete rationale for all the requested opinions. In explaining his or her answer to part 3(b) of these instructions, the examiner should indicate whether it is plausible that the repetitive lifting and moving of heavy objects described by the Veteran in his hearing testimony could potentially explain his current bilateral knee pain. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO PROVIDE INFORMATION ABOUT SYMPTOMS HE HAS PERSONALLY EXPERIENCED AND THAT THE ABSENCE OF IN-SERVICE TREATMENT RECORDS CONCERNING THE CLAIMED DISABILITY IS NOT, BY ITSELF, SUFFICIENT TO SUPPORT AN UNFAVORABLE OPINION. 4. Schedule the Veteran for a new VA examination for the purpose assessing the nature and etiology of his claimed disability of the low back. The complete claims file should be made available to the examiner, who should thoroughly review the file before he or she prepares the requested opinion. After the records review and the examination are complete, the examiner should prepare a report responding to the following questions: (a) Does the Veteran have a current diagnosable disability manifested by pain in the low back, including lumbosacral strain? (b) If the Veteran has a diagnosable disability manifested by pain in his low back, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in service or is otherwise related to any in-service disease, injury or event, including the Veteran’s work lifting and moving heavy loads of laundry and other supplies between the decks of an aircraft carrier? (c) If the Veteran does not have a diagnosable disability manifested by pain in his low back, please detail the symptoms of which the Veteran complains (e.g. pain) and specifically note if there are objective indications of chronic disability (to include undiagnosed illness). If the Veteran does not have a diagnosable condition manifested by pain in his low back, please indicate whether, based on a review of the record, the undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2021. 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. The examiner should provide a complete rationale for all the requested opinions. In explaining his or her answer to part 4(b) of these instructions, the examiner should indicate whether it is plausible that the repetitive lifting and moving of heavy objects described by the Veteran in his hearing testimony could potentially explain his current low back pain. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO PROVIDE INFORMATION ABOUT SYMPTOMS HE HAS PERSONALLY EXPERIENCED AND THAT THE ABSENCE OF IN-SERVICE TREATMENT RECORDS CONCERNING THE CLAIMED DISABILITY IS NOT, BY ITSELF, SUFFICIENT TO SUPPORT AN UNFAVORABLE OPINION. 5. The AOJ must ensure that the requested examination reports and opinions comply with these instructions. If any report is insufficient, the AOJ should return it to the examiner for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.