Citation Nr: 0204350 Decision Date: 05/10/02 Archive Date: 05/17/02 DOCKET NO. 95-05 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for multiple joint arthritis. 2. Entitlement to service connection for a lung disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Strommen, Counsel INTRODUCTION The veteran served on active duty from June 1947 to June 1950 and from June 1951 to September 1968. This case comes before the Board of Veterans' Appeals (Board) from an April 1994 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for multiple joint arthritis and a lung disorder. In a May 1998 decision, the Board remanded these issues to the RO for additional development. These are the only issues properly on appeal at this time. The Board's May 1998 decision also denied the veteran's claim for an increase in a 30 percent rating for service-connected sinusitis with rhinitis. Subsequent to that Board decision, the RO has continued to erroneously address this increased rating issue in Supplemental Statements of the Case dated in December 1998, May 1999, July 1999, August 1999, and November 1999, as if the issue was still on appeal, but it is not. Assuming that, subsequent to the May 1998 final Board decision, the veteran made a new claim for an increased rating for service-connected sinusitis with rhinitis, the RO should do a formal rating decision on the matter, and the issue should thereafter be sent to the Board only if there is a new and proper appeal (i.e., submission of a timely notice of disagreement and, after a statement of the case is issued, submission of a timely substantive appeal). For now, however, the increased rating issue is not properly on appeal. See 38 U.S.C.A. §§ 7104, 7105, 7108 (West 1991 & Supp. 2001); 38 C.F.R. §§ 20.200 (2001). FINDINGS OF FACT 1. The veteran is already service-connected for cervical spine arthritis. Arthritis of any other joints of the body developed years after his active service and was not caused by any incident of service. 2. The veteran's lung disability, chronic obstructive pulmonary disorder (COPD), began years after his active service and was not caused by any incident of service, but there is an additional increment of such lung disability which is attributable to aggravation from his service- connected sinusitis with rhinitis. CONCLUSIONS OF LAW 1. Multiple joint arthritis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.307. 3.309 (2001). 2. An increment of the veteran's lung disability is proximately due to or the result of service-connected sinusitis with rhinitis. 38 C.F.R. § 3.310 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's first period of active duty was from June 1947 to June 1950, in the Marine Corps. Service medical records from this period of service are negative for arthritis of any joints or for chronic lung disease. The records do note chronic rhinitis. The veteran again had active duty, this time in the Air Force, from June 1951 to September 1968, when he retired from service. His enlistment examination in June 1951 noted no pertinent problems, and history included a motor vehicle accident in service and a simple sprain of the back. In November 1959 he was treated for complaints of muscle spasm in the right scapula, and in February 1960, March 1960, and March 1963 he was seen for neck pain that was diagnosed as cervical spine arthritis. In September 1963 he reported that he had intermittent pain at the base of his neck and upper back since 1959. He was diagnosed with probable mild degenerative arthritis of the cervical spine. In February 1964 he was noted to have cervical synovitis, and in November 1965 he reported mild arthritis-like symptoms since 1959. In July 1967 he stated that he had arthritis pain in his back for two decades. Physical examination noted tenderness just medial to the left scapula, with the pain increasing when the left arm moved and flexed. Service medical records from this period of service show treatment, including surgery, for chronic sinusitis. As to the respiratory system, the veteran was seen on occasion for cold symptoms. In August 1966, he received hospital treatment for left lower lobe broncho- pneumonia; a history of sinusitis and cigarette smoking was also noted. In February 1968 the veteran underwent a service retirement examination. His cervical spine arthritis was noted, but there was were no complaints or findings of arthritis of other joints. The lungs were normal on clinical evaluation, and a chest-X-ray was negative. Sinusitis with past surgery was noted. The veteran was released from active duty at the end of September 1968. After separation from service the veteran underwent a VA examination in January 1969. He complained of arthritis and pain in the neck, with stiffness in the shoulders. He was diagnosed with cervical spine arthritis. In February 1969 the RO granted service connection for arthritis of the cervical spine. In April 1969 the RO granted service connection for sinusitis, and this was later described as sinusitis with rhinitis. Treatment records from 1969 to 1972 from service department facilities (the veteran was seen as a military retiree) note treatment related to a sinus condition, but do not show arthritis or lung disease. Outpatient treatment records show that in June 1972 the veteran reported with pain in his lumbar spine for three days. In June 1974 he was placed on a no lifting restriction, although he was noted to be doing better. A June 1974 VA examination noted cervical spine arthritis. There was no mention of arthritis of other joints. Medical records show that in November 1975 the veteran was noted to have a 6 to 8 week history of low back pain due to having injured his low back lowering a tub at work at the post office. X-rays were negative at this time. He was put on bedrest at home for one week, and was provided assistance in completing workers compensation papers. In February 1976 he was treated for low back pain with sciatica. In March 1976 he was again seen for radicular pain and numbness. He reported at this time that he had injured his lower back in November 1975 lifting at work. In June 1976 he was noted to have been doing well until he stooped in his garden the previous day. He had increased low back pain and was put on light duty at work. In March 1977 he was seen again for his low back pain. It was noted that the current onset was 5 months previous when he injured his back lifting heavy mail bags at work. In April 1977 he was again seen and it was determined that he could return to his regular duties at work. In May 1979 he sought treatment for recurring back problems, and was noted to have a history of spondylolysis in the L5 area. In June 1979 X-rays of the dorsal and lumbar spine revealed moderate dorsal kyphosis with no signification variation from normal in the lumbar spine. Treatment records in February 1984 note degenerative changes in the lumbar spine. In July 1987 X-rays of the shoulders showed no fractures or dislocations. In October 1985 and October 1987 hypertrophic changes were noted in the mid- lumbar spine, with mild scoliosis of the lumbar spine to the right. VA examinations were conducted in July 1993. The nasal/sinus examination diagnosed chronic sinusitis and rhinitis. The joints examination diagnosed cervical spine arthritis. In April 1994 the veteran filed claims for service connection for multiple joint arthritis and for a lung disorder (he has primarily claimed a lung disorder secondary to his service- connected sinusitis/rhinitis). At an October 1994 RO hearing, with regard to his claim for service connection for a lung disorder, the veteran said he was first diagnosed with chronic lung problems in about 1984; he noted he had been a smoker; and he asserted that his service-connected sinusitis/rhinitis was a factor in his current lung disorder. Regarding his claim for service connection for multiple joint arthritis, he asserted that he had arthritis of the low back and shoulders that was due to service. In October 1996 the veteran underwent another VA spine examination. He complained of lumbar strain syndrome. He reported lifting a trash can in 1965 while in service and suffering acute lumbar strain. No mention of his civilian job injuries was made. The examiner noted no significant pain in the joints, and no significant disability. The impression was mechanical lumbar spine syndrome. The examiner concluded that the veteran's lumbar and cervical spine injuries were unlikely to be related to multiple joint disease because he was relatively asymptomatic. At an October 1996 VA respiratory examination, the diagnoses included COPD with obstructive emphysema, and chronic sinusitis. The examiner commented that the veteran had an obstructive ventilatroy disorder primarily from tobacco abuse in earlier years; that chronic sinusitis in and of itself does not predispose one to develop COPD, per se, as bronchitis and bronchiectasis might; and that obviously the veteran's sinusitis may aggravate the underlying lung condition and may predispose to exacerbation of COPD, although sinusitis is not directly responsible for the COPD. On the bottom of a copy of a September 1997 letter which the veteran wrote to a VA medical center, someone wrote that his sinusitis did affect his breathing. An August 1998 statement by J. Smythe Rich, M.D., an otolaryngologist, notes that he treated the veteran for COPD for over five years, and that his sinusitis complicated and aggravated his COPD through drainage. In November 1998 the veteran underwent a VA respiratory examination. The examiner stated that the veteran had an obstructive ventilatory defect and that such was likely aggravated by his sinus difficulties, although the lung condition was primarily caused by previous tobacco use. In April 1999 the veteran underwent another VA respiratory examination. The examiner diagnosed the veteran with emphysema. He said that when the veteran's sinusitis was very active and he had an infection, the drainage went into his lungs and would cause him respiratory difficulties. The doctor said that when the veteran has active sinusitis with drainage and chronic rhinitis, the symptoms of coughing and shortness of breath would be increased. He added that the emphysema was not due to the chronic sinusitis, but that it had been aggravated and worsened by the chronic sinusitis. In April 1999 the veteran also had another joints examination, and this noted cervical spine arthritis. In a May 1999 statement, Leslie A. Beben, a physician assistant, stated that the veteran had been treated for several years for bronchitis and COPD requiring intermittent courses of steroids and antibiotics to keep it under control. In an October 1999 letter, J. Smythe Rich, M.D., noted he had treated the veteran for 8 years, and he reviewed his sinus and lung conditions. Dr. Rich opined that the sinus problem complicated and aggravated the lung condition. In January 2001 the Board requested an opinion from a Veterans Health Administration (VHA) physician concerning whether the veteran's sinusitis/rhinitis aggravated his emphysema and COPD, and if so, what degree of aggravation had occurred. The November 2001 response from the VA doctor notes that infectious sinusitis can worsen bronchitis by sinus drainage in the bronchi. The doctor said that sinus drainage may carry infectious organisms that can cause chronic destructive changes. In the physician's opinion, the veterans service-connected sinusitis/rhinitis aggravated his COPD, but he was unable to specify an amount of impairment or change in the quality of life. The veteran's representative submitted a February 2002 statement by Dr. Craig Bash, an associate professor of Radiology and Nuclear Medicine at the Uniformed Services University of Health Sciences. He opined that the veteran's recurrent pulmonary infections, bronchitis, bronchiectasis, and extensive upper and mid-level lung blebs and bullae are over and above his baseline COPD, and thus are aggravations caused by his sinusitis. The veteran submitted a number of medical records dated from 1995 to 2002 which show treatment for various ailments. These records primarily show treatment for COPD, although the records also at times refer to sinusitis problems including drainage. The veteran also submitted a number of medical articles concerning lung disease and sinusitis. II. Analysis Through correspondence, the statement of the case, and supplemental statements of the case, the veteran has been notified of the evidence necessary to substantiate his claims for service connection for multiple joint arthritis and for a lung condition. Pertinent medical records have been obtained, and he has been afforded several VA examinations. The Board finds that the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), and the related VA regulation, have been satisfied. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29. 2001) (to be codified as amended at 38 C.F.R. § 3.159). a. Service connection for multiple joint arthritis Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be rebuttably presumed for certain chronic diseases, including arthritis, which are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The veteran is already service-connected for arthritis of the cervical spine. He claims service connection for arthritis of multiple other joints, referring to the shoulders, mid back, and low back areas. The veteran had over 20 years of active duty, ending in 1968. Excluding cervical spine arthritis which is already service connected, there is no medical evidence showing arthritis of other joints during active duty or within the presumptive year after service. There is evidence of post-service back injuries at work. Medical records from a number of years after service include X-ray evidence of arthritis of the mid and low back areas. There is no medical evidence to link arthritis of any joints (other than the cervical spine which is already service-connected) with active duty. The weight of the credible evidence demonstrates that arthritis of joints other than the cervical spine began years after service and was not caused by any incident of service. Claimed multiple joint arthritis was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). b. Service connection for a lung disorder Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected condition. 38 C.F.R. § 3.310(a). Under certain circumstances, secondary service connection may be granted by way of aggravation, when there is an additional increment of a non-service-connected condition which is proximately due to or the result of a service-connected condition. In this situation, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Medical evidence shows that the veteran currently suffers from a lung disorder, primarily identified as COPD. This lung condition was not shown during the veteran's active duty or for years later, and there is no basis for direct service connection. The veteran primarily argues that secondary service connection for a lung disorder is warranted under 38 C.F.R. § 3.310, on the basis that the condition was caused or aggravated by his service-connected sinusitis/rhinitis. Multiple medical opinions of record, both private and VA, have stated that although the veteran's lung disorder was not caused by his service-connected sinusitis/rhinitis, that when active, his sinusitis has aggravated his lung disorder. The medical opinions generally agree there is at least some additional increment of COPD disability due to aggravation from the service-connected sinusitis/rhinitis, even if the percentage of such additional increment is difficult to quantify. The Board finds that the evidence is sufficient to establish secondary service connection for the degree of additional lung disability attributable to the veteran's service-connected sinusitis/rhinitis. Allen, supra. ORDER Service connection for multiple joint arthritis is denied. Secondary service connection for a lung disability is granted. L.W. TOBIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.