Citation Nr: 21028042 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-06 576 DATE: May 10, 2021 ORDER Entitlement to service connection for loss of sense of smell is granted. Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for gout is remanded. Entitlement to an initial rating in excess of 30 percent for adjustment disorder is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the appellant's loss of sense of smell is causally related to his active service. 2. The evidence is at least in equipoise as to whether the appellant's current right knee disability is causally related to his right knee injury which occurred during a period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for loss of sense of smell have been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the U.S. Marine Corps Reserve and had a period of active duty for training (ACDUTRA) from May 1979 to August 1979. He then served on active duty in the U.S. Marine Corps from February 1983 to February 1987 and June 1988 to June 1990. He had additional service in the U.S. Marine Corps Reserve and was recalled to active duty from December 1990 to June 1991, January 2003 to August 2003, and June 2005 to May 2006, including in the Southwest Asia Theater of Operations. The appellant also had additional periods of ACDUTRA while serving in the U.S. Marine Corps Reserve, including from July 7, 1981, to July 25, 1981, June 14, 1982, to June 28, 1982, July 4, 1987, to July 18, 1987, and April 29, 1994, to May 24, 1994. The record indicates that the appellant has additional periods of ACDUTRA. It further indicates that a two-week period of active duty began on May 28, 1980, and that another period of ACDUTRA ended on June 24, 1995. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded entitlement to service connection for adjustment disorder and assigned an initial 10 percent evaluation, effective January 2, 2013, and denied entitlement to service connection for right knee disability, left knee disability, low back disability, right shoulder disability, and loss of sense of smell. The appellant filed a timely Notice of Disagreement (NOD), received in June 2014. A Statement of the Case (SOC) was issued in April 2015. A timely substantive appeal was received in May 2015. A November 2013 rating decision, in pertinent part, denied entitlement to service connection for gout. A timely NOD was received in June 2014. A Statement of the Case (SOC) was issued in January 2015. A timely substantive appeal was received in February 2015. A Supplemental Statement of the Case (SSOC) was issued in March 2015. A March 2015 rating decision, in pertinent part, awarded an initial 30 percent rating for adjustment disorder, effective January 2, 2013. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appellant agreed to and was afforded a virtual hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript is of record. Received in September 2015 was a letter from the appellant's agent, addressed to the "Office of Original Jurisdiction," which requested a local hearing with a Decision Review Officer. It does not appear that he was provided a DRO hearing (or informal conference in lieu of a hearing). Nevertheless, the Board finds that any question as to whether the appellant was afforded due process regarding a DRO hearing was addressed when he was provided the opportunity to testify at the January 2021 Board hearing. See Bowen v. Shinseki, 25 Vet. App. 250, 253-54 (2012) (holding that there is no due process violation when VA denies a hearing before the AOJ in error, but claimant maintains ability to appeal and testify at a Board hearing). It is not contended otherwise. In any event, in light of the full grants of the benefits sought regarding loss of sense of smell and right knee disability, no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Should the appellant still desire a DRO hearing on the issues being remanded, he may request one. To this point, the United States Court of Appeals for Veterans Claims (Court) has recently held in Quinn v. Wilkie, 31 Vet. App. 284 (2019), that the law provides veterans who have already participated in a Board hearing the right to another such hearing, if requested, after the Board has remanded the appeal to the Agency of Original Jurisdiction (AOJ). See also 38 U.S.C. § 7107 (b); Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018) ("Cook II"). The Court made no distinction between a post-remand request for a DRO hearing and a post-remand request for a Board hearing. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifest "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more before December 31, 2021. 38 U.S.C. § 1117; see 38 C.F.R. § 3.317(a); 81 Fed. Reg. 71,382-84 (Oct. 17, 2016) (extending the presumptive period for compensation for Gulf War veterans from December 31, 2016 to December 31, 2021). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). A "medically unexplained chronic multisymptom illness" has been 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." 38 C.F.R. § 3.317 a)(2)(ii). "Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained." Id. Along with the three examples of a medically unexplained chronic multisymptom illness provided by section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). 1. Entitlement to service connection for loss of sense of smell is granted. The appellant contends that his sense of smell has diminished as a result of exposures while serving in the Southwest Asia theater of operations. He has reported that he first experienced difficulty with his sense of smell in 2006 and that such has continued to the present. See e.g. July 2013 VA Sense of Smell and Taste examination report. The appellant explained that his sense of smell was diminished but not totally gone. He can smell things that are very close, but is unable to smell things, such as the odor of alcohol on persons. While the appellant has exhibited objective indications of a qualifying chronic disability and appropriate diagnostic testing has been performed, as discussed below, his loss of sense of smell did not manifest during service in Southwest Asia and, to date, has not manifested to a degree of 10 percent or more. The appellant himself testified during his January 2021 hearing before the undersigned that he first noticed his decreased ability to perceive scents within a year or so of his Gulf War service. Diagnostic Code 6275 pertains to sense of smell. A maximum 10 percent evaluation is assigned for complete loss of sense of smell. 38 C.F.R. § 4.87a. As such, entitlement to service connection for loss of sense of smell as an undiagnosed illness is not for application. However, for the reasons that follow, the Board finds that entitlement to service connection for loss of sense of smell is warranted on a direct basis. The appellant most recently served on active duty in the Southwest Asia theater of operations from August 2005 to March 2006. On his March 2006 Post-Deployment Health Assessment, the appellant reported that, during this deployment, he was sometimes exposed to smoke from burning trash or feces, vehicle or truck exhaust fumes, JP8 or other fuels, and loud noises. He was often exposed to sand/dust. The appellant was afforded a VA Sense of Smell and Taste examination in July 2013. The claims file was reviewed. Following examination of the appellant and review of the claims file, anosmia (inability to detect any odor) was diagnosed. However, later in the examination report, the VA examiner stated that the appellant's current symptom was partial loss of sense of smell. The Board notes that, under the Diagnosis section of the Disability Benefits Questionnaire, "hyposmia (reduced ability to detect odors)" is an option, although the examiner checked off anosmia instead. The VA examiner also stated that there was no known anatomical or pathological basis for the appellant's loss of sense of smell. Following examination and review of the claims file, the July 2013 VA examiner opined that it was less likely than not that the appellant's partial anosmia was due to or the result of his exposure to burn pits and/or other particulate matter during his Southwest Asia deployment because the onset of his symptoms occurred years after exposure to burn pits and because examination and lab findings were normal. The VA examiner also referenced a July 2013 VA neurological examination report which states that the appellant reported loss of sense of smell which had been worsening over the past five to six years. It was noted that there was no inciting factor, although it had been theorized that it could have been due to pit exposure during Operation Desert Storm in the 1990s, although it was more than 15 years prior to the appellant noticing any changes in his ability to smell. Neurological examination was nonfocal, MRI of the brain was normal, and labs were grossly unremarkable. Overall, the neurologic differential for anosmia includes Parkinson's disease, multiple sclerosis, Lewy Body Dementia, Alzheimer's Disease, anterior body fossa tumor, or head trauma causing shearing of the olfactory bulbs. The VA neurologist opined that all of these were unlikely given the appellant's history and exam. The differential was noted to also include aplasia of the olfactory bulbs as seen in Kallman syndrome, which the examiner explained was unlikely because the appellant would have been unable to smell since birth, diabetes mellitus despite current labs being normal, hypothyroidism, Paget's disease, zinc deficiency, or scleroderma. The VA neurologist stated that it was impossible to rule out burn pit exposure as a cause of the appellant's anosmia, but it was highly unlikely given symptom onset beginning 15 years after the exposure. The Board notes that both the July 2013 VA neurological opinion and the July 2013 VA medical opinion following the Sense of Smell examination both are based upon the same inaccurate factual premise namely that the appellant did not serve in the Southwest Asia theater of operations after approximately 1990. Again, the appellant had active service in the Southwest Asia Theater of Operations most recently in 2006. However, the Board finds that these medical opinions imply that, had there not been a multi-year gap between Southwest Asia service and the onset of symptoms, positive etiological opinions would have been returned. In other words, had the July 2013 VA examiner and July 2013 VA neurologist been provided the accurate dates of the appellant's service in Southwest Asia, including the most recent period from August 2005 to March 2006, their opinions make clear that they would have opined that it was at least as likely as not that the appellant's anosmia was causally related to exposures in Southwest Asia. The July 2013 VA examiner determined that there was no known anatomical or pathological basis for the appellant's loss of sense of smell. The July 2013 VA neurologist noted that testing was normal and explained that the generally-known causes of anosmia were unlikely based upon the appellant's history and the current examination. The appellant is competent to report decreased sense of smell and when he first noticed such because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). He has been consistent in his reports both in the context of seeking medical treatment and in seeking VA benefits. Moreover, having had the opportunity to observe his demeanor during the January 2021 hearing, and absent anything contradictory in the record, the Board finds that the appellant's report of onset and continuation of symptoms is credible. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for loss of sense of smell. 2. Entitlement to service connection for a right knee disability is granted. The appellant contends that his current right knee disability is the result of a right knee injury during a period of ACDUTRA in or about 1995. He felt a pop in his knee and the medical corpsman suspected a tear. It was explained that, as he only had one day of ACDUTRA left, the normal course of action would be to place him on active duty in order to receive treatment for his right knee. However, due to commitments with respect to his civilian job, the appellant opted to be released from ACDUTRA and obtain medical treatment privately. Indeed, he subsequently had knee surgery to repair the tear. See January 2021 hearing transcript. In support of this claim, a buddy statement from B.M. was received in March 2021. B.M. attested that he and the appellant were participating in a period of annual training in 1995 at the Marine Corps Reserve Center in New Haven, Connecticut. During a physical training session, B.M. observed the appellant pull up, grab his right leg, and limp. He stopped participating in physical training and went to medical. B.M. later learned that the appellant had torn the meniscus in his right knee, which required surgery. Also received in March 2021 was an opinion from Dr. E.K., dated February 2021. Dr. E.K. had been the appellant's treating orthopedic surgeon since 1995, when the appellant sustained a right knee injury. This eventually resulted in arthroscopic surgery for a torn medial meniscus. Dr. E.K. opined that the appellant's severe articular cartilage loss and need for a total right knee replacement was causally and directly related to the 1995 in-service right knee injury and subsequent meniscal surgery. Medical records from Dr. E.K. reveal that the appellant underwent right knee surgery in August 1996. The appellant's service records reveal that he was examined and found physically qualified for release from active duty for training on June 24, 1995, in New Haven, Connecticut. This is consistent with the appellant's testimony, the buddy statement, and the medical records and opinion of Dr. E.K. regarding the appellant. There is no competent opinion of record contrary to the positive nexus opinion of Dr. E.K. regarding the appellant's right knee disability. Moreover, having had the opportunity to observe his demeanor during the January 2021 hearing, and absent anything contradictory in the record, the Board finds that the appellant's report of onset and continuation of symptoms is credible. Although service treatment records themselves are negative for complaints or observations regarding the right knee in or about 1995, based on the competent and credible evidence delineated above, the Board finds that the appellant incurred a right knee injury during a period of ACDUTRA in 1995 and that his current right knee disability is causally related to such injury. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for a right knee disability. REASONS FOR REMAND As detailed above, the appellant has numerous periods of active duty and ACDUTRA. However, remand is required to ensure that all periods of active duty, ACDUTRA, and INACDUTRA are identified as the appellant has indicated that many of the injuries pertinent to his service connection claims occurred during periods of training. It appears that the appellant's service treatment records are incomplete. Indeed, a June 2003 Report of Medical Assessment states that the date the appellant entered onto his current active duty was January 14, 2003, and that the date of the last physical examination was December 2002. No December 2002 examination report is currently of record. As noted below, the appellant has also reported receiving medical treatment at Groton Naval Hospital in the early 1990s for his back and those records may be stored separately. The appellant's complete service personnel records have not yet been associated with the claims file and are relevant to determining his periods of active duty, ACDUTRA, and INACDUTRA. Thus, remand is warranted in order to obtain the appellant's complete service treatment and personnel records. The Agency of Original Jurisdiction (AOJ) should also contact the National Personnel Records Center (NPRC), and any other appropriate source, to verify the exact dates of the appellant's active duty, ACDUTRA, and INACDUTRA. It should be clearly stated which periods are active duty, which are ACDUTRA, and which are INACDUTRA. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a right shoulder disability is remanded. The appellant contends that he developed left knee, low back, and right shoulder disabilities as a result of repetitive stress and use from training and lifting as a Marine. See January 2021 hearing transcript. He explained that there was no particular injury to the left knee, but a meniscal tear was found on MRI and resulted in surgery in 2012. It was suggested that the left knee disability may have been caused or aggravated by the right knee disability, such as from overuse and favoring. The appellant's representative noted that the appellant reported a back strain in 1993, which appeared to have occurred during a period of ACDUTRA. The appellant reported that he strained his lower back during PT and was seen at the Naval hospital in Groton. He reported that he has had back issues ever since, although he recognized that he denied back complaints on numerous Reports of Medical History thereafter in order to be consistently mission-ready. The appellant contended that, even if the initial injury was not significant, the continued repetitive sit-ups and other use of the back during service added up to cause a current disability. With respect to the right shoulder, the appellant reported that he began to have problems with his right shoulder in 2006, after returning from Iraq. He denied a particular injury but contended that it was from overuse from pull-ups and load-bearing. Of record is a January 1993 note from Dr. E.K. which states that the appellant was under his care and Dr. E.K. had advised not to participate in any physical activities over the weekend. The appellant's service treatment records include a January 1993 clinical note which states that the appellant presented a prescription from Dr. E.K. for hydrocodone for his lower back pain. Service treatment records also note an October 1977 left knee injury, strained ligament, prior to service, but it was noted that the appellant had fully recovered from such and there were no restrictions since that injury. The appellant provided a statement in September 1990 that he had not had any trouble with his left knee since that time. Medical records from Dr. E.K. reveal that the appellant was diagnosed with right shoulder biceps tendinitis in April 2012 and underwent left knee surgery in July 2012. VA's duty to assist also includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). After verification of the appellant's exact dates of active duty, ACDUTRA, and INACDUTRA, the Board finds that the appellant should be afforded appropriate examinations to determine the nature and etiology of his left knee, low back, and right shoulder disabilities. 4. Entitlement to service connection for gout is remanded. In his January 2013 VA Form 21-526, the appellant reported that he had a bad attack of gout while deployed to Kuwait on active duty in 2003. He had to be returned to the United States as a result. He was told that the food he was eating might have caused the buildup of uric acid in his system. Medical records from Dr. E.K. include a May 1999 note regarding an acute right ankle sprain. In June 2000, the appellant was diagnosed with gouty arthropathy of the right ankle. An April 2003 clinical note states that the appellant had had a history of gout for two years and a couple of episodes previously. He reported improvement from prednisone but was not back to baseline. The appellant was afforded VA ankle and foot examinations in April 2013. The claims file was reviewed. Following examination of the appellant and review of the claims file, gouty arthritis of the left ankle and the left first metatarsal phalangeal joint (MTPJ) was diagnosed. It was noted that such was first diagnosed in 2002. The appellant was treated for gout beginning in 2003 while deployed to Iraq. Treatment notes describe a pre-existing condition of gout from one to two years prior to the March 2003 treatment. The appellant reported that he developed gout during a training exercise at 29 Palms California. The gouty arthritis from March to May 2003 involved the left ankle and foot resolved after acute therapy and starting allopurinol. Treatment records indicate that the appellant had previously been prescribed allopurinol one to two years previously, but the appellant decided to adjust his diet instead. The VA examiner opined that it was less likely than not that the appellant's gout was incurred in or otherwise causally related to his active service. Although there was evidence showing diagnosis and treatment for gouty arthritis during a 2003 deployment, the treatment notes referred to a pre-existing condition of cardiac arthritis existing anywhere from one to two years prior to the March 2003 diagnosis of gouty arthritis. Service treatment records were negative of any diagnosis in 2002 during training at 29 Palms California. Electronic records were negative for any medication having been dispensed in 2002. As such, the preponderance of the evidence favored a pre-existing medical condition. Due to the April 2013 VA medical opinion's inadequacies, a new medical opinion was ordered. See November 2013 deferred rating decision. A new VA medical opinion was obtained in November 2013. Following review of the claims file, the VA physician noted that the appellant had one documented attack of gout in 2003 during a period of active duty when he was deployed to Kuwait. The appellant decided to treat with diet modification rather than the recommended medication, allopurinol. There was an acute episode of gout in March 2003 on diet modification. Since then, the appellant had been treated with allopurinol and denied any recurrence. The VA physician opined that diet modification was not sufficient to treat an attack of gout in 2003 while deployed to Kuwait. The examiner also opined that the appellant's gout, which clearly and unmistakably existed prior to service, was less likely than not aggravated beyond its natural progression during service. An additional VA medical opinion was obtained in March 2015 from the same VA physician who offered the November 2013 opinion. Following review of the claims file, the VA physician observed that an April 2003 treatment note states that the appellant had a two-year history of gout. There was a March 2003 flare, but notes documented complete resolution. The June 2005 separation examination repot stated that gout symptoms were controlled on allopurinol. The VA physician explained that gout is not an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially understood etiology. Rather, gout is a disease with a clear and specific etiology and diagnosis. The examiner opined that the appellant's gout clearly and unmistakably existed prior to active service and was less likely than not due to service or aggravated beyond the natural progression by service. Notably, the appellant was diagnosed with gout not within a period of active duty. Indeed, such was prior to his Kuwait deployment. Further, there was no documented permanent worsening or aggravation due to service. A veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Generally, however, no legal presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) apply to periods of ACDUTRA and INACDUTRA unless veteran status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). There is currently no entrance examination for the period of active duty from January 2003 to August 2003 in the claims file. However, as discussed above, there are references to a December 2002 medical examination which indicates that the appellant's service treatment records are incomplete. The April 2013, November 2013, and March 2015 VA medical opinions are inadequate. The April 2013 VA examiner used the improper preponderance standard when opining that gout preexisted service and aggravation was not addressed. The November 2013 and March 2015 opinions used the improper "less likely than not" standard for the opinions regarding whether gout was aggravated by during active duty. Additionally, the significance, if any, of the 2000 gout affecting the right lower extremity as opposed to the 2003 gout affecting the left lower extremity, was not discussed. Further, these opinions were rendered without the benefit of review of complete service treatment records and were rendered without all periods of active duty, ACDUTRA, and INACDUTRA being delineated. Again, the appellant reported that he experienced gout prior to 2003 during a period of training. The Board finds that remand for a new medical opinion regarding the nature and etiology of the appellant's gout is necessary, after the complete service treatment and personnel records are associated with the file and all periods of active duty, ACDUTRA, and INACDUTRA are delineated. 5. Entitlement to an initial rating in excess of 30 percent for adjustment disorder is remanded. During the appellant's January 2021 hearing, the appellant testified that, thanks to medication and the counseling and services he had obtained from VA, he could function fairly well now. The appellant was most recently afforded a compensation and pension examination in October 2013. At that time, the appellant reported that his primary care provider at one time had prescribed an antidepressant, but he never took any of the medication because his symptoms of emotional distress improved by the time he filled the prescription. As such, although the appellant has described his functioning as having improved with treatment, it appears that his adjustment disorder may have worsened since his October 2013 VA examination because he now needs medication. Thus, the Board finds that the appellant should be afforded a new examination to assess the severity and manifestations of his service-connected adjustment disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The appellant also appears to have been referencing VA medical treatment for his adjustment disorder. VA medical records are not currently associated with the claims file. Thus, upon remand, these potentially relevant records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. Undertake the necessary efforts to obtain complete service treatment and personnel records corresponding to the appellant's active duty in the U.S. Marine Corps and his service in the U.S. Marine Corps Reserve, to include contacting the Records Management Center if necessary. The appellant has also reported receiving medical treatment at Groton Naval Hospital in the early 1990s. The RO should undertake the necessary efforts to obtain these records. All efforts to obtain such records should be documented in the claims folder. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the appellant and his representative. 2. Contact the service department or other appropriate source to verify the exact dates of the appellant's active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) during his Reserve service. It should be clearly stated which periods are active duty, which are ACDUTRA, and which are INACDUTRA. 3. Take appropriate steps to ensure that the appellant's complete VA treatment records are associated with the claims file. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. 4. Afford the appellant appropriate VA examination(s) to determine the nature and etiology of his claimed left knee, low back, and right shoulder disabilities. Access to the appellant's claims file must be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the appellant, the examiner should delineate all left knee, low back, and right shoulder disabilities. For each identified disability, the examiner should opine as to the following: Is it at least as likely as not that such disability had its onset in service or is otherwise related to a disease or injury during active duty or ACDUTRA or an injury during INACDUTRA? If not, is it at least as likely as that such disability was proximately due to or the result of HIS service-connected right knee disability? If neither, is it at least as likely as not that such disability was aggravated (made worse) by service-connected right knee disability? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. In providing the requested opinions, the clinician should review the relevant evidence of record, to include (a) the January 2021 hearing transcript; (b) the medical records from Dr. E.K.; and (c) the appellant's service treatment records, which include January 1993 notes that the appellant was prescribed hydrocodone for lower back pain by Dr. E.K. The clinician's attention is directed to the verification of the dates of the appellant's active duty, ACDUTRA, and INACDUTRA as he has numerous periods of active service, ACDUTRA, and INACDUTRA. In providing the requested opinions, the clinician should consider the appellant's reported injuries and symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant's reported symptoms. If there is any medical reason to accept or reject the proposition that repetitive use and trauma caused or aggravated a left knee, right shoulder, or low back disability, or that compensating for the right knee caused or aggravated a left knee disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the current left knee, low back, or right shoulder disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? 5. Obtain a medical opinion from an appropriate clinician to determine the etiology and likely date of onset of the appellant's gout. Access to records in the claims file should be made available to the examiner for review in connection with his or her opinion. An additional examination may be provided if deemed necessary. The clinician should provide opinions for the following: (a) Is it at least as likely as not that the appellant's gout had its inception during a period of active duty or ACDUTRA? (b) If not, did the appellant's current gout clearly and unmistakably exist prior to his period of active duty from January 2003 to August 2003? If so, is it also clear and unmistakable that such disability was NOT aggravated (permanently worsened beyond its natural progress) by active service, to include service in the Southwest Asia theater of operations? The clinician's attention is directed to the verification of the dates of the appellant's active duty, ACDUTRA, and INACDUTRA as he has numerous periods of active service, ACDUTRA, and INACDUTRA. In providing the requested opinion and rationale, the examiner should consider the pertinent evidence of record, including (a) the January 2021 hearing testimony; (b) the January 2013 VA Form 21-526; (c) medical records from Dr. E.K.; (d) the April 2013 VA examination report and opinion; (e) the November 2013 VA medical opinion; (f) the March 2015 VA medical opinion; and (g) the appellant's service treatment records, which may now include a December 2002 medical examination report. The clinician should comment on the significance, if any, of the 2000 gout affecting the right lower extremity as opposed to the 2003 gout affecting the left lower extremity. 6. Schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected adjustment disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's psychiatric disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms and the extent to which such symptoms produce social and occupational impairment. The examiner should conduct any and all diagnostic testing deemed appropriate. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.