Citation Nr: 21040239 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-00 368 DATE: July 2, 2021 REMANDED Entitlement to service connection for a right elbow disability is REMANDED. Entitlement to service connection for a right knee disability is REMANDED. Entitlement to service connection for a left knee disability is REMANDED. Entitlement to service connection for erectile dysfunction (ED), secondary to service-connected coronary artery disease (CAD), is REMANDED. REASONS FOR REMANDED The Veteran served honorably in the United States Marine Corps from July 1972 to August 1992. The certificate of release from active duty (DD214) reflects that, among multiple ribbons and decorations, the Veteran received the Southwest Asia Service Medal and Kuwait Liberation Medal. In June 2019, the Board addressed the claims listed on the title page. At that time, the Board denied the Veteran's claims. Thereafter, the Veteran appealed his service connection claims to the Court of Appeals for Veterans' Claims (Court). In June 2020, the Court issued a Joint Motion for Partial Remand (JMPR). At that time, the Court vacated the Board's 2019 denials, remanding the claims for further development and consideration. In October 2020, the Board addressed the claims listed on the title page. At that time, the Board remanded the claims to the agency of original jurisdiction (AOJ) for additional development. Upon review of the record, the Board concludes that another remand to the AOJ is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 1. Entitlement to service connection for right elbow and bilateral knee disabilities is remanded. In January 2015, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated claims for service connection a right elbow and bilateral knee disabilities. In November 1992, the Veteran underwent a General Medical Examination. At that time, the Veteran complained of bilateral elbow and knee pain. The examiner noted that there was not x-ray evidence of degenerative arthritis in the Veteran's bilateral elbows and knees. In February 1999, a Radiologic Consultation Report was associated with the claims file. Therein, a provider relayed that there were no significant pathological findings noted for the cervical spine, elbows, knees, hands, or ankle. However, the Board observes that there was no indication of why the right elbow and bilateral knees were imaged. In June 2015, a treatment notation was associated with the claim file. Therein, a provider reported severe right elbow osteoarthritis. The provider relayed that the condition existed since 1992. In June 2019, the Board addressed the Veteran's claims for service connection for a right elbow and bilateral knee disabilities. At that time, the Board noted that veterans who served in the Persian Gulf Wars may be service connected for a medically unexplained multi-symptom illness. However, the Board found that service connection attributable to Guld War service was not available to the Veteran, because right elbow and bilateral knee diagnoses had been rendered. In June 2020, an appellate brief was associated with the claims file. Therein, the Veteran's representative observed that the Board did not address whether the Veteran endured a medically unexplained chronic multi-symptom illness in the June 2019 decision. Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C. §§ 1117, 1118. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317. The term "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). Signs or symptoms that may be a manifestation of a chronic multi-symptom illness include, but are not limited to, fatigue, muscle pain, and joint pain. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran's case does not preclude compensation under § 3.317. Id. The Board observes that, the Veteran served as a member of the United States Marine Corps, with active duty service during the Persian Gulf War. As such, the Veteran is considered a Persian Gulf Veteran. In February 2018, the Veteran's treatment records from the Jacksonville CBOC were associated with the claims file. After review, the Board notes that the Veteran reported trouble with his knees in February 2016. In October 2020, the Board addressed the claims on the title page. At that time, the Board remanded the Veteran's claims for service connection for right elbow and bilateral knee disabilities to the AOJ. The Board instructed the AOJ to obtain VA examination reports that addressed the etiology of the Veteran's right elbow and bilateral knee disorders. The Board directed the examiner to address the Veteran's in-service report of swollen and painful joints in May 1992. In April 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured right elbow disorder. The examiner noted a 1992 diagnosis for right elbow degenerative arthritis. In the medical history, the examiner reported an insidious onset in 1992, with no specific injuries to the right elbow. The Veteran reported that he currently endured moderate, dull aching pain in the right elbow. The Veteran reported flare-ups occurred several times per week, lasting several hours each time. The examiner opined that, "(t)here was no objective evidence of bursitis of the right elbow upon exam, therefore an opinion is not warranted for this condition." In April 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured knee disorders. The examiner noted a 1992 diagnosis for bilateral knee degenerative arthritis. In the medical history, the examiner reported an insidious onset in 1992, with no specific injuries to the knees. The Veteran reported current dull, aching pain in the bilateral knees. The Veteran reported flare-ups occurred several times each week, which resulted in several hours of increased pain. The examiner opined that the Veteran's left and right knee degenerative arthritis was less likely than not (less than 50 percent probability) incurred in and/or caused by service in the United States Marine Corps. The examiner relayed that, after the Veteran's period of service, there was no evidence of any continued complaints of left or right knee pain to indicate any chronicity of the condition. The Board notes that the April 2021 examiner addressed the Veteran's in-service, May 1992 report of painful and swollen joints. The examiner relayed that the service treatment records (STRs) only addressed the Veteran's back, knee, and ankle at that time. However, the Board observes that the examiner did not address the Veteran's complaints of bilateral elbow and knee pain during the November 1992 General Medical Examination. Throughout the claim period, the Veteran has reported that he had endured / and endures right elbow and bilateral knee pain. The Veteran is competent to report this pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the April 2021 examiner did not address the Veteran's competent reports for right elbow pain. The examiner supplied a negative etiology statement, because the Veteran did not demonstrate right elbow bursitis during the claim period. Because the examiner did not address the Veteran's competent reports of right elbow pain during the claim period, the Board finds that the examination report is not adequate for this claim for service connection for a right elbow disability. The Board observes that the April 2021 examiner relayed that bilateral knee chronicity was not present, because the Veteran did not report knee issues after separation from service. As identified above, the Veteran's government treatment records reflect that the Veteran at least reported bilateral knee trouble in February 2016. As the examiner's negative opinion(s) were based on the fact that there were no noted knee complaints after the Veteran's separation from the United States Marine Corps, the Board finds that it was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, an addendum opinion regarding the etiology of the Veteran's current bilateral knee disorders should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). Finally, after review of the claims file, the Board observes that a Gulf War examination report has not been associated with the claims file. As the claims for service connection for right elbow and bilateral knee disabilities are being remanded, the AOJ must secure an examination report that addresses whether the Veteran's currently identified elbow and knee disorders are the result of a medically unexplained chronic multi-symptom illness. 2. Entitlement to service connection for erectile dysfunction (ED), secondary to service-connected coronary artery disease (CAD), is remanded. In January 2015, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated a claim for service connection for ED, secondary to CAD. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In December 2015, the Veteran underwent a VA examination that addressed the nature and etiology of Male Reproductive System Conditions. The examiner noted a diagnosis for ED. The examiner opined that that the Veteran's ED was less likely than not proximately due to or the result of the service-connected condition. The examiner relayed that the Veteran had multiple problems which could all be causes of erectile dysfunction, to include heart disease, clogged blood vessels (atherosclerosis), high cholesterol, high blood pressure, Peyronie's disease, certain prescription medications, and BPH. Therefore, the examiner stated that it was impossible to state, without undue speculation, the exact cause or etiology of the Veteran's ED. In December 2016, a report from Carolina East was associated with the claims file. At that time, the Veteran suspected that his service-connected CAD prevented attainment of a full erection. After review of the medical history, the provider opined that the Veteran's ED was the result of a multifactorial problem that almost certainly had some relation to his service-connected cardiac disease, to include the medications for same. In October 2020, the Board addressed the Veteran's claim for service connection for ED. At that time, the Board remanded the claim to the AOJ to obtain an addendum VA opinion that addressed the etiology of the Veteran's ED. In April 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured male reproductive organ conditions. The examiner noted diagnoses for ED, benign prostate hypertrophy (BPH), and prostatitis. The examiner reported that the etiology of the Veteran's ED was multi-factorial, to include BPH, hypertension, and hyperlipidemia. The examiner opined that the Veteran's ED was less likely than not proximately due to the service-connected CAD disability. The examiner relayed that, even though the Veteran's CAD medication was known to cause ED in some cases, the risk is minimal. The examiner relayed that it was much more likely (50 percent or greater) that the Veteran's ED was due to non-service-connected disorders, to include BPH, hypertension, and hyperlipidemia. The examiner posited that the Veteran's heart medications would not cause prostatitis or BPH. In June 2021, the Veteran's representative submitted a Written Brief Presentation. Therein, the representative requested that the Board credit the Veteran's theory that his service-connected CAD caused his hypertension, which caused his erectile dysfunction. When determining service connection, all theories of entitlement must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In Walsh v. Wilkie, the Court indicated that the Board needs to consider the intermediate step theorem predicated on aggravation where appropriate. 32 Vet. App. 300 (2020). Thus, the Court indicated that proper interpretation of General Counsel Opinion 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework. Therefore, the Board must consider whether: (1) the service-connected CAD caused the Veteran to become hypertensive and, thereby, caused and/or aggravated the Veteran's ED; (2) if so, whether the hypertension, as a result of the service-connected CAD, was a substantial factor in causing the current ED; and (3) whether the currently endured disorder (hypertension/ED aggravated) would not have occurred but for by the service-connected CAD. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. After review of the relevant case law, the Board finds that an opinion is necessary as to assess whether the Veteran's hypertension is an intermediate step between his service-connected CAD and his current ED. The Board observes that the government and non-government examination and treatment reports in the claims file indicate that the Veteran's current ED has a multifactorial etiology. However, the appellate record is devoid of an examination report that addresses whether the service-connected CAD exasperated the Veteran's non-service-connected hypertension and, thereby, caused and/or aggravated the Veteran's ED. Consequently, on remand, the AOJ should secure and addendum VA examination report that addresses the intermediate-step theory created by the Court's holding in Walsh. Id. Consequently, the matters are REMANDED to the AOJ for the following action: 1. The Veteran should be scheduled for a VA examination with the appropriate physician, to determine the nature and etiology of his current right elbow and bilateral knee disorders. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should conduct all necessary testing to rule out diagnoses for the claimed signs and symptoms for right elbow and bilateral knee disabilities. The examiner should characterize the Veteran's claimed disorders as belonging to one of four disability patterns: (1) undiagnosed illness, (2) a diagnosable, but medically unexplained chronic multi-symptom illness of unknown etiology, (3) a diagnosable chronic, multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology. With regard to any diagnosed disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current disability is related to service, to include the Veteran's service and chemical exposure in the Persian Gulf. The examiner must provide a complete rationale for all opinions expressed. As part of this rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's right elbow and bilateral knee disorders had their clinical onset during military service, or is otherwise related to his active duty service? (b) Is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's right elbow and bilateral knee disorder are parts of a diagnosable, but medically unexplained chronic multi-symptom illness of unknown etiology? It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. An addendum examination report should be generated that addresses the nature and etiology of the Veteran's currently endured erectile dysfunction (ED). Based upon a review of the entirety of the claims file, the history presented by the Veteran, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the ED currently endured by the Veteran was either (i) caused by or (ii) aggravated by the Veteran's service-connected coronary artery disease (CAD)? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address whether the Veteran's service-connected CAD exasperated the Veteran's non-service-connected hypertension. The examiner should also address whether the any exasperation of the non-service-connected hypertension by the service-connected CAD caused and/or increased the severity of the Veteran's current erectile dysfunction. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his erectile dysfunction. (Continued on the next page) 3. After completing any other development that may be warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be given a supplemental statement of the case (SSOC) and a reasonable opportunity to respond before the record is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.