Citation NR: 9711833 Decision Date: 04/07/97 Archive Date: 04/14/97 DOCKET NO. 94-30 815 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines THE ISSUE Entitlement to service connection for osteoarthritis. ATTORNEY FOR THE BOARD Sonya Gidumal Chazin, Associate Counsel INTRODUCTION The veteran had recognized active service from November 1941 until July 1942 and from February 1945 until June 1946. He was a prisoner of war of the Japanese government from April 1942 to July 1942. In March 1996, the Board of Veterans’ Appeals (Board) found that new and material evidence had been submitted in order to reopen the veteran’s claim for service connection for osteoarthritis, and then remanded the case to the RO for further development. This development has been completed and the case was returned to the Board for appellate review. In November 1996, the veteran submitted a letter claiming service connection for a heart condition, peripheral neuropathy, and malnutrition. He further stated that his ulcer had gotten worse. These matters have not been developed on appeal and are not inextricably intertwined with the issue on appeal. Therefore, they are not before the Board and are referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has osteoarthritis due to service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim for service connection for osteoarthritis. FINDING OF FACT The veteran, who is a former prisoner of war, does not have traumatic arthritis; he has degenerative osteoarthritis which was not manifest in service or in the first post-service year, and which is not due to any incident of service. CONCLUSION OF LAW Osteoarthritis was not incurred in or aggravated by active service, and the condition may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds initially then the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, it is not inherently implausible. The facts relevant to the issue on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim is satisfied. Id. The veteran had recognized active military service from November 1941 to July 1942 (including as a prisoner of war from April 1942 to July 1942), and from February 1945 to June 1946. Available service medical records do not show arthritis. A May 1984 report of a medical examination at Mabalacat Rural Health Unit-2 shows various diagnoses including osteoarthritis of the right knee. During a July 1984 VA examination, osteoarthritis of the lumbar spine, sacroiliac joints, hips, and knees was diagnosed by X-ray studies. The veteran gave a history of joint pains, on and off, since 1946. A January 1991 letter from Juanito L. Rigor, M.D., states that the veteran was examined and had joint pain of the upper and lower extremities. The diagnosis, in pertinent part, was osteoarthritis. X-rays taken during a February 1991 VA examination, showed hypertrophic changes in the lumbar spine and pelvis. In a medical certificate dated in December 1993, and signed by Juanito L. Rigor, M.D., it was reported that the veteran had been treated twice a month since January 1993 for his illnesses, to include osteoarthritis. In July 1994, the veteran submitted a photocopy of a medical certificate dated in December 1989. This certificate was signed by Avesino A. Saguiped, M.D. and stated, “The patient consulted me February 20, 1947 (to) December 2, 1989 for varied complaints.” Listed diagnoses included osteoarthritis of the upper and lower extremities. Under the category of medications and clinical records, the certificate stated, “pain reliever was given 3 times a day, prednisone tab. was also swicth in 1960 3 times a day up to 1970, pyrazon tab. 3 times a day 1970 to 1980 Again because of there is no indication of recovery voltaren 100 3 times a day up to the year of 1989 his last visit in this clinic advice to confined at the veterans hospital for general checked up for his conditions, the joints still in sweeling that the patient can barely moved himself for walking from his residence to my clinic.” (sic.) In August 1994, the RO sent a letter to Dr. Saguiped, requesting complete clinical records of the veteran; the letter was returned as undeliverable, with a notation that the addressee was deceased. In August 1994, the veteran submitted a letter wherein he stated that he had been treated for osteoarthritis since he was discharged from service in 1947. The veteran also explained that Dr. Saguiped died in September 1992, and there were no records left because they had been destroyed by termites. A December 1995 report of a field investigative (prompted by another veteran’s case) reveals that Dr. Saguiped was deceased and his clinical records were no longer available for verification. An interview of a witness revealed that the doctor died during the eruption of Mt. Pinatubo. His house-clinic was sold a long time prior to his death, for he had been senile and not practicing medicine. Another witness added that the doctor died in June 1991, had been in his “second childhood,” had not been practicing medicine for more than a year before his death, and records were no longer available as the doctor’s house-clinic was sold many years before his death. In September 1996 another field investigative report was issued; the investigation apparently was prompted by frequent and questionable medical certificates from certain doctors in different veterans’ cases. Dr. Saguiped’s sister and nephew were interviewed, and they stated that the doctor died of pulmonary disease sometime in September 1993. He stopped practicing medicine in 1986 or 1987 when his senility became evident. Dr. Saguiped was a general practitioner, and did not have a field of specialization. They further stated that numerous veterans and claimants had obtained medical certifications, or asked the doctor to sign ready-made medical certificates. The interviewees indicated that clinical records were disposed of many years before the doctor’s death. Dr. Juanito L. Rigor’s widow was also interviewed. She presented the interviewer with the doctor’s diploma, which showed that he was a general practitioner. She explained that the doctor was actively engaged in the practice of medicine from 1955 until 1994, and continued to practice until his death in April 1994. He only practiced occasionally at the end because he suffered from some symptoms of senility. The doctor practiced out of their residence and she had burned all remaining records. Service connection may be granted for a disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. When a chronic disease such as osteoarthritis becomes manifest to a degree of 10 percent within one year from the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. In the case of a veteran who is a former prisoner of war and was held for 30 days or more, service connection may be established for post-traumatic osteoarthritis if manifest to a degree of 10 percent or more at any time after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The record reveals that the veteran currently has osteoarthritis. There is no credible evidence, however, that the veteran had osteoarthritis within one year of his 1946 discharge from service, nor is there evidence that he currently has post -traumatic arthritis. The first medical evidence that shows that the veteran has osteoarthritis is from 1984, almost 40 years after service. Medical evidence since 1984 shows only degenerative arthritis of multiple joints, and the medical evidence does not link the condition with remote events of service. The medical evidence does not show traumatic arthritis which would be subject to the lifetime presumption for former prisoners of war. Cross v. Derwinski, 2 Vet.App. 150 (1992). The veteran submitted a medical statement, dated in 1989, from Dr. Saguiped that states that he had been treating the veteran for arthritis since 1947. No records of treatment were submitted. Further, investigations revealed that this doctor died sometime between 1991 and 1993, that he was senile and not practicing medicine for many years before his death, that clinical records were destroyed years before his death, and that many veterans and claimants would go to the doctor to sign ready-made medical certificates. Based on all the information, the Board finds that Dr. Saguiped’s 1989 medical certificate is not credible, and it does not show the veteran was treated for arthritis within the years immediately following service. The weight of the evidence shows the veteran’s osteoarthritis is degenerative rather than traumatic in nature, it developed many years after service, and it is not due to any incident of service. Osteoarthritis was not incurred in or aggravated by service, and service incurrence may not be presumed. In reaching this decision, the Board has considered the doctrine of giving the benefit of the doubt to the veteran, but does not find that the evidence is approximately balanced such as to warrant its application. Rather, the preponderance of the evidence is against the claim, and service connection for osteoarthritis must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for osteoarthritis is denied. L.W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -