Citation Nr: 0332922 Decision Date: 11/24/03 Archive Date: 12/01/03 DOCKET NO. 96-45 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for arthritis. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran served on active duty from June 1975 to June 1979 and from December 1990 to June 1991, serving in Southwest Asia from January to May 1991. He was a member of the Reserves following each period of active service and performed active duty for training and inactive duty training at various times. This appeal arises from an October 1997 RO rating decision that denied service connection for arthritis/degenerative joint disease, inter alia. The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution. In February 1999, the Board remanded the case to schedule a hearing. The veteran testified before the undersigned member of the Board in May 1999 and in December 1999, the Board remanded the case for additional development. FINDINGS OF FACT 1. The medical evidence is in equipoise as to whether arthritis of the cervical, thoracic, and lumbar spine, right shoulder, elbows, and knees is related to service. 2. Arthritis of the hips has not been demonstrated. CONCLUSION OF LAW Arthritis was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records (SMRs) reflect that he suffered a probable right shoulder dislocation in April 1976. In July 1977, the veteran attained medical qualification for duty involving diving. In November 1977, he had effusion and locking of the right knee following an injury. A January 1994 routine diving duty examination report for the Marine Corps Reserves reflects no relevant abnormality. A May 1996 VA general medical compensation and pension examination report reflects no relevant abnormality. The veteran underwent a periodic examination for the Reserves in July 1996. The report notes that the upper and lower extremities and feet were abnormal and further noted decreased range of motion due to pain and "arthritis". In the summary of defects portion of the examination report, the examiner noted "Disabling Arthritis", among other abnormalities, and wrote, "These are all service- connected." On a report of medical history dated in July 1996, the veteran checked "yes" to such disorders as swollen or painful joints; Arthritis, rheumatism, or bursitis; Bone joint or other deformity; and, Recurrent back pain. In July 1996, Joseph Andrews, M.D., reported that the veteran had been a Navy diver for 22 years. The physician listed several health problems, but did not mention arthritis. A July 1996 billing statement from Craig Conoscenti, M.D., reflects diagnoses of arthralgia and degenerative joint disease, but no other details are provided. In January 1997, the veteran claimed service connection for arthralgia, degenerative arthritis, and degenerative joint disease. An examination was scheduled. According to a February 1997 VA orthopedic compensation and pension examination report, the veteran was a 20-year Navy veteran with a considerable number of deep dives. The veteran reported a history of caisson disease (decompression sickness) with gradual onset of pain in multiple joints including the right shoulder, low back, and the elbows, hips, and knees. He also reported that he was discharged from the service because of multiple health problems, including arthralgia. During the examination, the examiner found multiple joint pain, crepitus, some limitation of motion, and added symptoms consistent with degenerative cervical arthritis. The diagnoses were degenerative arthritis of the cervical and lumbar spines and right shoulder; patellofemoral pain syndrome of both knees; presumed arthritis of both hips (not confirmed by X-rays); and, status post right ankle reaction with limitation of motion. A February 1997 VA general medical examination report notes a sedimentation rate of 11. In October 1997, the veteran testified before an RO hearing officer that he first noticed joint pain a couple of months after he returned from the Persian Gulf War. At that time, he had about 15 years of military diving. He recalled that he had to leave the Reserves because of degenerative arthritis and then VA examined him and found the same thing. He testified that he no longer could dive and although he worked for a commercial diving firm, he performed other tasks. He testified that doctors have warned that diving can lead to degenerative arthritis. He clarified that his active duty was with the Marine Corps but his Reserve duty was with the Navy. In February 1999, the Board remanded the case to schedule a hearing before a Board member. In May 1999, the veteran testified before the undersigned member of the Board that he was a medical technician diver and that a VA examiner had opined that deep diving caused arthritis. He testified that he had joint pain following active service in the Persian Gulf War, but that he more or less hid it for years so that he could remain in the Reserves. He also testified that while he dived in his civilian job, those dives were not as deep. In December 1999, the Board remanded the case, instructing the RO to inform the veteran that the record did not contain any medical evidence tending to link his arthritis with active service, nor had he established himself as a medical expert in this matter. In March 2000, the veteran submitted a progress report from N. Polifroni, M.D. Dr. Polifroni reported that diving caused deterioration of the veteran's neck and back and caused injury to his knees, and that he also had a work-related right shoulder injury. In April 2000, Dr. Andrews reported, "I think a case could be made for bends and diving baro injuries contributing to bone infarcts and osteoarthritis with significant morbidity." The physician also stated, "In addition he has progressive cervical, thoracic, and lumbar osteoarthropathy that was aggravated by diving stress while on active duty. I would consider all of his current difficulties to be service- connected." In October 2002, the veteran underwent a referral compensation and pension examination of the spine. The physician noted a review of the claims file and the relevant medical history. The clinical impression was lumbar degenerative disc disease without significant radiculopathy. The physician noted that the SMRs were silent for any significant recurrent reports to sick call for caisson disease or decompression sickness and noted that orthopedic literature described dysbaric osteonecrosis and related that disease to decompression sickness. The physician concluded that the veteran's lumbar degenerative disc disease was associated with the aging process rather than a diving accident. X-rays showed moderate T12/L1 and L5/S1 lumbar degenerative disc disease. The sacroiliac joint and the hips showed good preservation of the joint spaces. There was early narrowing of the patellofemoral joints, bilaterally. Each elbow had an olecranon spur. The right shoulder showed early osteoarthritis degenerative changes of the acromioclavicular joint and the glenohumeral joint and findings consistent with impingement syndrome. The medical article attached to the compensation and pension examination report states that gas bubble formation in the tissues and in the bloodstream "initiates the chain of reactions that are responsible for decompression sickness and bone necrosis". In October 2002, the veteran also underwent a referral compensation and pension examination of the joints performed by the same physician who performed the spine examination. The physician noted a review of the claims file and noted that evidence of ruptured tympanic membranes in the SMRs tended to document barotrauma although there was no documentation of decompression sickness. During the examination, the veteran reported a right shoulder dislocation during active service in 1976. The physician opined, "With a reasonable degree of medical probability, this patient's degenerative changes of his knees, trochanteric bursitis of his hips are noted to be secondary, and just as likely as not a normal aging process." The physician noted that the X-rays of the wrists, hands, elbows, shoulders, knees, hips, and ankles were inconsistent with dysbaric osteonecrosis. The physician concluded, in effect, that the right shoulder disorder was secondary to an isolated traumatic event during active service. The relevant impressions were status post right shoulder dislocation with resultant impingement syndrome; bilateral trochanteric bursitis of the hips; and, no evidence of dysbaric osteonecrosis secondary to barotrauma. II. VCAA During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326) (2003). The VCAA and the implementing regulations are liberalizing and are therefore applicable to the issue on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The VCAA and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary (i.e., to VA) that is necessary to substantiate the claim. VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In July 2002, the RO sent a notice letter to the veteran advising him that VA would assist in obtaining any favorable medical evidence that the veteran identified. The veteran has not identified any additional evidence. Thus, VA's duty to notify and to assist has been fulfilled. Id. The RO has attempted to obtain and has associated with the claims file all pertinent service records, VA medical records, and the private medical records identified, and VA has offered the veteran a compensation and pension examination. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit (hereinafter referred to as the Court) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. The veteran has not been notified of the impact that this decision might have on his claim; however, his VCAA letter did specify that he had one year to offer any additional evidence. Therefore, for that reason, and because the benefit sought will be granted in this decision, the veteran will not be unfairly prejudiced as a result of the Board deciding the claim without first affording the veteran opportunity to respond to the recent Court decision. A remand for adjudication by the RO would thus serve only to further delay resolution of the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). III. Legal Analysis In general, service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "Direct" service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Each disabling condition shown by SMRs, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown be service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). There is no requirement that a disorder must be "chronic" as a condition precedent to direct service connection under 38 C.F.R. § 3.303; however, "chronic diseases" such as arthritis, as defined at 38 C.F.R. §§ 3.307 and 3.309, are accorded special consideration for service connection. A chronic disease will be considered to have been incurred in service when manifested to a degree of 10 percent or more within 1 year from the date of separation from active service. 38 C.F.R. § 3.307(a) (2003). The factual basis may be established by medical evidence, competent lay evidence, or both. 38 C.F.R. § 3.307(b) (2003). Active military service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2003). In this case, there is no diagnosis of arthritis given within 1 year of separation from active military service. Thus, presumptive service connection, as defined at 38 C.F.R. §§ 3.307 and 3.309, is not available. Moreover, the presumptive provision is not available for periods of service in active duty for training status or inactive duty training status for the Reserves. Thus, to establish service connection for residuals of an injury that occurred while in training for the Reserves, evidence tending to link those residuals to that injury is required. The veteran has submitted lay evidence of joint pain within a year of separation, a medical diagnosis of arthritis of multiple joints made several years after active military service, and competent medical evidence tending to relate arthritis to deep diving during active service. Thus, direct service connection should be granted if all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee, supra. The earliest dated medical evidence that appears to argue for service connection consists of a periodic examination report for the Reserves dated in July 1996, in which the examiner simply made a notation of service-connected arthritis. The examiner did not explain whether this arthritis was caused by diving or by other injury, and the opinion might simply reflect a belief on the part of the examiner that service- connection had already been established for various ailments. However, resolving any reasonable doubt on this issue in favor of the veteran, the Board finds the report to be favorable, although only minimally persuasive. The February 1997 VA examination report is not probative of the issue, as the examiner for the various diagnoses given offers no nexus opinion. Dr. Polifroni's February 2000 opinion tending to link arthritis of the neck and back to diving and tending to relate knee and right shoulder disabilities to other injuries is favorable, although only minimally persuasive because the veteran also dived in his civilian job. Moreover, the doctor did not actually relate a current right knee or right shoulder disability specifically to in-service injuries. Dr. Andrews' report of April 2000 provides a favorable nexus opinion. Dr. Andrews did not state that diving caused arthritis, but rather that diving contributed to arthritis, further mentioning that progressive cervical, thoracic, and lumbar osteopathy was aggravated by diving stress while on active duty. The Board finds this opinion persuasive and uncontroverted by any other medical evidence. The October 2002 VA opinion linking the veteran's lumbar degenerative disc disease to aging rather than to a diving accident is certainly credible; however, it appears to rule- out only one diving accident as the cause of arthritis, and does not appear to address the veteran's many years of military diving. Moreover, even if the preponderance of the competent evidence pointed to aging as the root cause of the veteran's arthritis, this opinion does not address whether military diving might have aggravated this process. Thus, this evidence is unpersuasive. The Board notes that the examiner did clearly relate right shoulder impingement syndrome to an active service right shoulder injury. In an October 2002 joints examination report, the VA examiner found degenerative changes of the knee joints and trochanteric bursitis of the hips to be "just as likely as not a normal aging process." This opinion exemplifies a state of equipoise on the issue. However, it takes more than equipoise to deny a service connection claim. This opinion does not exclude military diving being at least as likely as not the direct cause, nor does it address whether military diving could have aggravated the veteran's arthritis. Thus, the probative value of this opinion is minimal. Although the veteran has attempted to link arthritis to active service or active duty for training or inactive duty training, he, as a layman without proper medical training and expertise, is not competent to provide probative evidence on a medical matter such as the diagnosis or etiology of a claimed medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Thus, his testimony on the matter cannot be used. He is competent, however, to provide lay testimony of the date of onset of joint pain symptoms clearly observed by him. The medical evidence on service connection appears to be in relative equipoise. Because the standard of proof for denial of service connection for arthritis is a preponderance of negative evidence, and because such a standard has not been met in this case, the Board will resolve the issue of service connection for arthritis of the cervical, thoracic, and lumbar spines, the right shoulder, and of the knees and elbows in favor of the veteran. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Service connection for arthritis of the cervical, thoracic, and lumbar spines, the right shoulder, and of the knees and elbows is therefore granted. No diagnosis of arthritis of either hip has yet been given, therefore, service connection for arthritis of the hips is not warranted at this time. ORDER Entitlement to service connection for arthritis is granted. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2