Citation Nr: 18160471
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-18 310
DATE:	December 26, 2018
ORDER
Service connection for a right shoulder disability, diagnosed as degenerative joint disease, a right shoulder labral tear, and right shoulder rotator cuff tendinitis, is granted.
Service connection for a right ankle disability, including degenerative changes, is granted.
Service connection for a right knee disability, including osteoarthritis, is granted.
Service connection for a left knee disability, including osteoarthritis, is granted. 
REMANDED
Entitlement to service connection for a disability of the right hip, including due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded.
Entitlement to service connection for a disability of the left hip, including due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded.
Entitlement to service connection for a disability of the left ankle, including due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded. 
Entitlement to service connection for a disability of the right foot, including due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded.
Entitlement to service connection for a disability of the left foot, including due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded.
Entitlement to an initial compensable (higher than 0 percent) rating for bilateral hearing loss is remanded.
Entitlement to an initial compensable (higher than 0 percent) rating for post-concussive headaches is remanded.
FINDINGS OF FACT
1. The Veteran’s right shoulder degenerative joint disease, right shoulder labral tear, and right shoulder rotator cuff tendinitis is linked to disease or injury incurred in active service.
2. The Veteran’s right ankle disability, including degenerative changes, is linked to disease or injury incurred in active service.  
3. The Veteran’s right knee disability, including osteoarthritis, is linked to disease or injury incurred in active service.
4. The Veteran’s left knee disability, including osteoarthritis, is linked to disease or injury incurred in active service
CONCLUSIONS OF LAW
1. The criteria for service connection for right shoulder degenerative joint disease, a right shoulder labral tear, and right shoulder rotator cuff tendinitis have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
2. The criteria for service connection for a right ankle disability, including degenerative changes, have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
3. The criteria for service connection for a right knee disability, including ostearthritis, have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
4. The criteria for service connection for a left knee disability, including osteoarthritis, have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1988 to June 1988, from March 1991 to July 1991, from January 1999 to September 1999, from September 2002 to August 2003, from August 2004 to July 2005, from September 2008 to October 2009, and from November 2012 to October 2016. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  
The Veteran limited his substantive appeal to the issues listed above.  See March 2016 VA Form 9.  The February 2016 Statement of the Case (SOC) also addresses the initial ratings assigned the Veteran’s service-connected posttraumatic stress disorder (PTSD), median nerve neuropathy of the right hand, and ulnar neuropathy of the left hand.  Because the Veteran’s substantive appeal did not include those issues, they are not before the Board at this time.  See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2017) (setting forth requirements and timeframe for perfecting an appeal to the Board).  The Veteran, through his representative, submitted appellate briefs in November 2017 and May 2018 that include arguments regarding the evaluations of his PTSD and neuropathy of the bilateral hands.  To the extent these briefs may be construed as a substantive appeal, they were submitted outside of the timeframe for perfecting the appeal, and thus are not timely.  See 38 C.F.R. § 20.302.  As it appears the Veteran’s representative was simply unaware that the Veteran had excluded these issues from his substantive appeal, and as no reason has been given for a delay in perfecting the appeal with respect to those issues, waiver of timeliness of the substantive appeal is not warranted.  See Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009).

Service Connection
Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  
To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999).  
For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012).  When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes).  38 C.F.R. § 3.303(b). 
A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  If the preponderance of the evidence weighs against the claim, it must be denied.  Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

Right Shoulder
Service connection for a right shoulder disability is established.  Indeed, a May 2016 rating decision, issued prior to the Veteran’s separation from service, proposed to establish service connection for this disability based on the Veteran’s April 2015 VA/DOD Joint Disability Claim.  A November 2016 rating decision effectuated grants of service connection for other disabilities for which service connection had been proposed in the May 2016 rating decision.  However, the Veteran’s right shoulder disability was not addressed, and the codesheet continues to reflect that service connection has not been awarded.  The record clearly shows that service connection is in order. 
The evidence shows that the Veteran incurred disease or injury of the right shoulder in service.  In April 2010, following his October 2009 separation from active service, he filed a claim for service connection for a bilateral shoulder disability.  (Service connection for disability of the left shoulder has since been granted.)  An August 2010 VA examination report reflects that the Veteran had pain in the shoulders.  The Veteran indicated in a May 2011 statement that he experienced pain in his right shoulder and other joints since active service.  There were no diagnostic imaging studies of the right shoulder of record at the time.  
The Veteran had another period of active service from November 2012 to October 2016, during the pendency of this appeal.  Service treatment records for this period show that he reported right shoulder pain that began in March 2009 (i.e. during his prior period of active service) after hyperextending it when an improvised explosive device (IED) detonated nearby while serving in Afghanistan.  See November 2013 STR.   He reinjured the shoulder in July 2013 while weightlifting.  An x-ray study showed mild degenerative changes, with no acute injury.  A November 2013 magnetic resonance imaging study (MRI) showed findings that included a rotator cuff tear and a labral tear.  See November 20, 2013 STR.  The Veteran subsequently underwent right shoulder surgery prior to separation from active service.  See May 2016 Medical Evaluation Board Proceedings; March 2016 Form 9.  
The May 2016 Medical Evaluation Board report found that the Veteran’s right labral tear and rotator cuff tendinitis were incurred in active service.  A May 2015 VA examination report reflects similar diagnoses, as well as a acromioclavicular joint osteoarthritis.  Examination findings showed limitation of range of motion of the right shoulder, with pain causing functional loss. 
Accordingly, the criteria for service connection for a right shoulder disability are satisfied.  See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366.  
Right Ankle 
Service connection for a right ankle disability is established.  
The evidence shows that the Veteran incurred disease or injury of the right ankle in service.  In April 2010, following his October 2009 separation from active service, he filed a claim for service connection for bilateral ankle disabilities, and indicated that they began in November 2008.  Service treatment records prior to the Veteran’s most recent period of active service do not show treatment or complaints of ankle pain.  An August 2010 VA examination report showed that the Veteran had pain in various joints, including the ankles.  
During the pendency of this appeal, the Veteran had another period of active service from November 2012 to October 2016.  A November 2013 service treatment records showed that the Veteran reported right ankle pain and locking up, of insidious onset.  He denied a specific injury.  An x-ray study of the right ankle showed minimal degenerative changes.  The May 2015 VA examination report shows that the Veteran complained of occasional aches in the right ankle since 2009.  He stated that it had not been treated in service.  On examination, the Veteran had limited range of motion of the ankle, with dorsiflexion being from 0 to 5 degrees (normal range is 0 to 20).  However, the examiner found no symptoms on examination, and considered that range to be normal for the Veteran.  The examiner stated that the Veteran did not have a current diagnosis associated the right ankle.  However, no x-ray study was performed in this examination, and the examiner did not address the November 2013 diagnosis of degenerative changes based on x-ray imaging.  
Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current right ankle disability incurred in active service.  See 38 C.F.R. § 3.303(b).  He has presented competent and credible testimony of ongoing, if intermittent, right ankle pain or aches since November 2008, during the prior period of active service.  During his most recent period of active service, he was diagnosed with degenerative changes of the right ankle after reporting pain and locking of the ankle.  This evidence supports a finding of chronicity of arthritis during service.  See 38 C.F.R. §§ 3.303(b) 3.309(a).  
Accordingly, the criteria for service connection for a right ankle disability are satisfied. 
Bilateral Knees
Service connection for disabilities of the left and right knees, diagnosed as osteoarthritis, is established.  
The evidence shows that the Veteran incurred disease or injury of the bilateral knees in service.  In April 2010, following his October 2009 separation from active service, he filed a claim for service connection for bilateral knee disabilities, and indicated that they began in November 2008.  Service treatment records dated in July 2008 and August 2009 reflect that the Veteran reported pain in various joints, including his knees.  A July 2009 x-ray of the knees was interpreted as normal.  The fact it was conducted shows that the Veteran was experiencing knee pain at the time.  
In his June 2011 NOD, the Veteran stated that he experienced pain involving multiple joints, including his knees, after the long-term wearing of body armor and engaging in extended physical activity in harsh terrain in Afghanistan and Iraq, which included carrying up to 100 pounds of equipment in mountain terrain.
During the pendency of this appeal, the Veteran had another period of active service from November 2012 to October 2016.  A November 2013 service treatment record showed that the Veteran again reported bilateral knee pain.  He denied a specific injury.  An x-ray study of both knees showed mild to moderate degenerative joint space narrowing of the medial compartments.  
In the May 2015 VA examination report, which was conducted while the Veteran was on active duty, the examiner diagnosed osteoarthritis of both knees based on the November 2013 x-ray study.  
Given the Veteran’s credible testimony of ongoing knee problems since November 2008, during the prior period of service, and the diagnosis of osteoarthritis during his last period of active service, the Board finds that the criteria for service connection are satisfied.  See 38 C.F.R. § 3.303(b).  

 
REASONS FOR REMAND
The claims for disabilities of the bilateral hips, left ankle, and bilateral feet, including due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are remanded. 
The Veteran claims service connection for disabilities of the bilateral hips, left ankle, and bilateral feet on a direct basis.  He also claims presumptive service connection as a Persian Gulf Veteran for an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI) manifested by muscle or joint pain, chronic fatigue, sleep disturbances, and other signs or symptoms.  See 38 C.F.R. § 3.317 (2017); see also June 2011 Notice of Disagreement (NOD); March 2016 VA Form 9.  The Board finds that VA examinations and opinions are warranted for both avenues of service connection.  
Regarding direct service connection, the Veteran has provided competent and credible testimony of aching, stiffness, or pain in the hips, ankles, and feet since his period of active service from September 2008 to October 2009.  In his June 2011 NOD, he stated that he experienced such symptoms after the long-term wearing of body armor and engaging in extended physical activity in harsh terrain in Afghanistan and Iraq, which included carrying up to 100 pounds of equipment in mountain terrain.  A September 2003 service treatment record reflects a diagnosis of bilateral plantar fasciitis.  A July 2008 service treatment record reflects that the Veteran reported pain in his feet, knee, and shoulder.  Service treatment records dated in August 2009 reflect that the Veteran reported pain with movement in the feet, knees, and hips.  July 2009 x-rays of the feet were interpreted as normal.  
In the May 2015 VA examination report, the examiner found that the Veteran did not have current diagnoses of the hips, feet, or right ankle.  However, pain that results in functional impairment may constitute a disability, even in the absence of an underlying diagnosis.  Saunders v. Wilkie, 886 F.3d 1356, 1365-66 (Fed. Cir. 2018).  In light of the Veteran’s credible report of ongoing problems involving his joints, including his hips, feet, and ankles, a new VA examination is warranted to assess whether he has current disabilities related to active service. 
A Persian Gulf examination has not been performed.  Since at least his June 2011 NOD, the Veteran has advanced the theory that he may have an undiagnosed illness or MUCMI associated with his service in Afghanistan and Iraq, with manifestations including joint and muscle pain and chronic fatigue.  On remand, such an examination should be performed, and a medical opinion provided as to whether the Veteran has signs and symptoms of an undiagnosed illness or MUCMI, including joint pain involving his hips, feet, and left ankle. 
Finally, the agency of original jurisdiction (AOJ) has not reviewed the Veteran’s service treatment records for his last period of active service in adjudicating the claims on appeal.  See February 2016 SOC.  These records must be reviewed prior to readjudication of the claims.  
The issues of entitlement to higher initial ratings for service-connected bilateral hearing loss and post-concussive headaches are remanded.
VA examinations were last performed in May 2015.  While these examinations were discussed in the February 2016 SOC, it was only with regard to whether higher ratings were warranted for the period from October 17, 2009, to November 1, 2012, when the Veteran was in civilian status prior to being reactivated.  On remand, the AOJ must consider this evidence, as well as the service treatment records for the Veteran’s most recent period of active service, for the period since his October 2016 separation.  
As VA examination were last performed over three years ago, new VA examinations should be provided on remand. 
The matters are REMANDED for the following action:
1. Add to the file any outstanding VA treatment records for the Veteran dated since February 2016. 
2. Arrange for a VA examination and medical nexus opinion regarding the Veteran’s bilateral hips, left ankle, and feet.  All indicated tests and studies should be performed, and all pertinent clinical findings reported. 
The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran has a disability of the left hip, right hip, left ankle, left foot and/or right foot related to active service.  Each should be addressed separately.  The examiner should consider the Veteran’s report of ongoing symptoms involving these joints, his in-service complaints, and the circumstances of his service, which included long-term wearing of body armor and carrying heavy equipment in mountainous terrain.  
The examiner should provide a complete explanation in support of the conclusion reached.  
3. Arrange for a Gulf War examination to determine whether the Veteran has an undiagnosed illness or medically unexplained chronic multisymptom illness based on his status as a Persian Gulf Veteran, with service in Iraq and Afghanistan. 
After examining the Veteran and reviewing his medical history, the examiner must opine as to whether there are both objective signs (i.e. objective evidence perceptible to an examining physician) and symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness, including pain involving his hips, knees, ankles, and feet, fatigue, sleep disturbances, and/or any other signs and symptoms.  A complete explanation must be provided. 
Please note: “A medically unexplained chronic multisymptom illness” means an 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.  
4. Arrange for a VA examination to assess the current severity of the Veteran’s bilateral hearing loss disability.  
5. Arrange for a VA examination to assess the current severity of the Veteran’s service-connected headache disorder.  

 
P.M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Rutkin, Counsel 

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