Citation Nr: 22014475 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-03 811 DATE: March 14, 2022 REMANDED The issue of service connection for degenerative joint disease of the right elbow is remanded. The issue of service connection for degenerative joint disease of the bilateral knees is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1988 to June 1992, including service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision, which denied reopening the previously denied claims of service connection for degenerative joint disease of the right elbow and knees. In January 2019, the Veteran and his spouse testified at a hearing before a decision review officer (DRO) at the regional office (RO); a transcript of the hearing is associated with the claims file. In March 2021, the Board reopened the previously denied claims and remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The Board notes that the current service connection claims for right elbow and bilateral knee degenerative joint disease were previously identified as one claim for "service connection for degenerative joint disease of the right elbow and bilateral knees." However, because right elbow degenerative changes status post fracture with surgical repair were noted on entrance examination, the analysis regarding entitlement to service connection for the right elbow differs from that of the bilateral knees. Accordingly, the Board has separated the issue of bilateral knee degenerative joint disease from the right elbow degenerative joint disease. As a final introductory matter, the Board observes that the prior Board Decision and Remand indicated that the Veteran's active service in the Southwest Asia theater of operations during the Persian Gulf War included combat service. In fact, none of the awards and medals listed on his DD Form 214 or among his service personnel records confirms any participation in combat with the enemy, and the Veteran himself has not asserted that he participated in combat with the enemy. Rather, during an August 1998 VA examination to evaluate whether he had a current PTSD disability related to service, he described having "general concerns about his survival" during Operation Desert Storm and being in frequent, if not more or less constant, fear of attacks. He described being present "on at least one occasion when his unit was apparently subjected to mortar rounds fired in their general vicinity." He described feeling vulnerable "on one occasion [when] his mechanized unit broke down" and they were "stuck in the desert." Finally, he denied personally witnessing the killing of combatants in Operation Desert Storm or directly seeing the dead bodies that were the result of that conflict. However, he did report "seeing pictures of these events, which disturbed him." Following a February 2012 fee-basis examination, the June 2012 rating decision granted service connection for PTSD based on the reported stressor involving fear of hostile military activity, which the AOJ found to be consistent with the places, types, and circumstances of the Veteran's military service in Southwest Asia. In summary, the evidence of record does not reflect that the Veteran participated in combat and the combat presumption does not apply in this case. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); see also VA O.G.C. Prec. Op. No. 12-99, 65 Fed. Reg. 6,256-58 (2000) (holding that the phrase "engaged in combat with the enemy" requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality). 1. The issue of service connection for degenerative joint disease of the right elbow is remanded. 2. The issue of service connection for degenerative joint disease of the bilateral knees is remanded. In his August 2012 notice of disagreement (NOD) regarding the denial of service connection for degenerative joint disease of the right elbow and both knees, the Veteran asserted he "complained of arthritis symptoms throughout [his] time in the military" and complained of arthritis symptoms and "joint problems shortly after returning from Desert Storm" and after separation from service. During an August 1998 VA examination, the Veteran reported he had been hospitalized in 1993 with pain in multiple joints and the diagnosis had been polyarthritis. He described getting symptoms once or twice a year in all joints except his back and described his pre-service back and right elbow injuries. Similarly, during a March 2002 VA Persian Gulf registry examination, he stated he complained of pain in all his joints twice a year lasting for one week each time. He reported a right elbow injury related to a fall in 1986 that required surgery. He stated he had been seen in the emergency department a few times for the pain and was treated symptomatically. He also stated he was hospitalized twice for joint pains, each time for a couple days. The AOJ should ask the Veteran to submit the records of hospitalization from approximately 1993 or to provide VA the necessary authorization to obtain those records on his behalf. In January 2019, the Veteran testified that he had right elbow surgery prior to military service and had no issues with his right elbow while in service. He stated that he first noticed problems with his right elbow and knees when he returned from Desert Storm. He also testified that he started receiving treatment at the VA Medical Center (VAMC) in New Orleans around August 1992. The electronic claims file shows the Veteran was afforded a VA examination at the New Orleans VAMC in August 1992. The claims file also contains a problem list printed at the same location in January 2006. However, treatment records from the New Orleans VAMC have not been requested or obtained. Because such records may be pertinent to the Veteran's claims, the AOJ should obtain those records. If any additional VA or private treatment records are added to the electronic claims file, the AOJ should obtain supplemental medical opinions regarding the onset and etiology of the claimed right elbow and bilateral knee degenerative joint disease disabilities. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain the following records: a) All records of hospitalization for joint pains from approximately 1993. b) All records of evaluation and treatment from the New Orleans VAMC since establishing care around August 1992. c) Any other records of evaluation and treatment identified by the Veteran related to right elbow and bilateral knee degenerative joint disease that have not already been provided or obtained. 2. If additional VA and/or private treatment records are obtained and associated with the claims file, obtain a supplemental medical opinion from an appropriate clinician regarding the onset and etiology of the claimed right elbow and bilateral knee degenerative joint disease disabilities. Following a review of the claims file, the reviewing examiner should respond to the following: a) Regarding the right elbow degenerative joint disease status post fracture with open reduction and internal fixation (ORIF) surgical repair noted on entrance examination in February 1988, provide an opinion as to whether it is clear and unmistakable that the right elbow disability was NOT aggravated by military service. b) Is it at least as likely as not (a 50 percent probability or greater) that the current bilateral knee degenerative joint disease, which was first documented on x-ray examination during an August 1998 VA examination (based on the evidence currently of record as of March 2022) (1) manifested during military service or is otherwise medically related to the Veteran's military service; or (2) manifested within one year of separation from active duty service? (Continued on the next page) A detailed medical rationale must be provided for all opinions expressed. In providing the opinions, the reviewing clinician should consider the relevant evidence of record, to include the Veteran's description of experiencing arthritis symptoms during military service and his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms and the onset of his disability align with how his current disability is known to develop, or are his reports generally inconsistent with medical knowledge or implausible. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.