Citation Nr: 0810200 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 99-00 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for arthritis of the hands, shoulders, ankles, wrists, and hips, to include as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from November 1974 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) from a March 1999 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for arthritis of the hands, shoulders, ankles, wrists, and hips, to include as secondary to a service-connected low back disability. The Board remanded this claim for additional development in June 2000 and November 2003. FINDING OF FACT The veteran's current arthritis of the hands, shoulders, ankles, wrists, and hips first manifested after her separation from service and is unrelated to her service or to any incident therein, and is not shown to be the result of or aggravated by the service-connected low back disability. CONCLUSION OF LAW The veteran's current arthritis of the hands, shoulders, ankles, wrists, and hips was not incurred in or aggravated by her active service, and is not proximately due to or the result of the service-connected low back disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Degmetich v. Brown, 104 F.3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, like arthritis, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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. § 3.30(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The veteran contends that she is entitled to service connection on a secondary basis for her arthritis of the hands, shoulders, ankles, wrists, and hips due to her service-connected low back disability. On VA examination in May 2007, the veteran complained of significant pain throughout her body, most notably in her hands, shoulders, ankles, wrists, and hips bilaterally. She reported using a wheelchair for ambulation outside of the house and using a walker within the house. She stated that she also used a wrist brace bilaterally. She reported that her pain waxed and waned but denied flare-ups. She stated that she injured her back during service and was subsequently diagnosed with rheumatoid arthritis of the hands, wrists, joints, ankles, and rib cage in 1989. Examination revealed the veteran in a wheelchair and wearing splints on both wrists. She had a slow, slightly antalgic gait with normal heel-to-toe process and good posture. Examination of the hips showed 100 degrees active and passive range of motion for the left hip and 90 degrees active and passive motion for the right hip. There was 10 degrees extension bilaterally, 20 degrees abduction and adduction bilaterally, and 30 degrees internal and external rotation bilaterally. There was pain on all motion. Both hips were stable, and the right hip had a diffuse achy pain that was slightly more pronounced with deep palpation about the hip. An x-ray of the bilateral hips revealed mild rheumatoid changes in both hips with prominent osteophyte formation on the acetabular roof. Examination of the ankles revealed tenderness to palpation diffusely about the joints. There were no abnormal masses, effusion, significant malalignment, or varus or valgus instability. Neural status was intact with good sensation. There was good plantar and dorsiflexion strength. Active and passive range of motion of plantar flexion was 30 degrees with pain, and dorsiflexion was 20 degrees with pain. There was pain in the left subtalar joint with provocative passive range of motion. An x-ray of the bilateral ankles showed decreased joint space with osteophyte formation and arthritic changes that were worse on the left side. Examination of the shoulders revealed global tenderness with deep palpation. There were no provocative signs of frank rotator cuff tear, biceps tendonitis, or evidence of impingement. Range of motion testing showed 110 degrees flexion of the left shoulder and 90 degrees flexion of the right shoulder. There was 90 degrees abduction of the left shoulder and 100 degrees abduction of the right shoulder. There was 40 degrees rotation of the left shoulder and 30 degrees rotation of the right shoulder. All ranges of motion produced pain. Bilateral shoulder x-rays revealed moderate rheumatoid arthritis and no frank ankylosis. Examination of the wrists revealed a small palpable nodule on the dorsum of the left wrist. There was 40 degrees dorsiflexion bilaterally, 30 degrees palmar flexion of the left wrist and 40 degrees palmar flexion of the right wrist, and 20 degrees radial and ulnar deviation bilaterally. There was pain on all ranges of motion. There was no significant metacarpophalangeal ulnar drift, but there was tenderness to palpation at the tip of the distal ulna, slight loss of grip strength of the left wrist, and positive pain with grind test of the first carpometacarpal joints bilaterally. Bilateral wrist x-rays showed no ankylosis, but there was slight radiocarpal collapse, blunting on both right and left ulnar styloids, and evidence of carpometacarpal joint arthritis with moderate joint space compromise. The diagnoses were bilateral rheumatoid changes in the hands, bilateral mild rheumatoid arthritis of the shoulders, bilateral rheumatoid arthritic changes of the bilateral ankles, bilateral radiocarpal collapse consistent with rheumatoid arthritis of the wrists, and mild bilateral rheumatoid arthritis of the hips. The examiner opined that the veteran's impairment was secondary to rheumatoid arthritis that was diagnosed in 1989 long after separation from service. He stated that it was unlikely that the low back disability caused or aggravated the veteran's multiple rheumatoid joints. On VA examination in June 2007, the examiner reviewed the veteran's entire claims file and stated that his opinion had not changed since the May 2007 examination. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the May 2007 and June 2007 medical opinions are probative based on the examiner's thorough and detailed examinations of the veteran and claims file as well as the adequate rationales for the opinions. In addition, there are no contrary competent medical opinions of record. Accordingly, the Board finds that service connection for the veteran's arthritis of the hands, shoulders, ankles, wrists, and hips, as secondary to her service-connected low back disability, is not warranted. The Board now turns to the question of whether the veteran is entitled to service connection on a direct basis for arthritis of the hands, shoulders, ankles, wrists, and hips. The veteran's service medical records are negative for any evidence of symptoms relating to arthritis of the hands, shoulders, ankles, wrists, and hips. She made no complaints regarding her hands, shoulders, ankles, wrists, and hips at an October 1977 separation examination, and her upper and lower extremities were found to have no abnormalities. Since there were no recorded complaints of symptoms of arthritis of the hands, shoulders, ankles, wrists, and hips during approximately 3 years of service and the veteran's upper and lower extremities were found to be normal on examination at separation, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). The evidence shows that the veteran's arthritis is more likely due to rheumatic arthritis that manifested many years after her separation from service and is not shown to have been incurred in or aggravated by service, to be proximately due to or the result of any disease or injury incurred in or aggravated by service, or to have manifested to a compensable degree within the applicable presumptive period following separation from service. As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection for arthritis of the hands, shoulders, ankles, wrists, and hips. 38 C.F.R. § 3.303(b). The first post-service evidence of record of symptoms relating to arthritis of the hands, shoulders, ankles, wrists, and hips is a February 1993 private medical report where the veteran complained of intermittent pain in the neck, shoulder, arm, elbow, and fingers for the previous three months. She was diagnosed with acute right shoulder bursitis. Post-service VA and private medical records dated from March 1993 to May 2007 show that the veteran received intermittent treatment for acute tendonitis of the right shoulder and rheumatoid arthritis, degenerative arthritis, osteoarthritis, sciatica, and arthralgia of the hands, shoulders, ankles, wrists, and hips. At no time did any treating provider relate the veteran's arthritic conditions to her period of active service. On VA examination in December 1993, the veteran complained of pain in her right shoulder. Examination revealed equal shoulders. There was 90 degrees abduction, 150 degrees anterior flexion, and 90 degrees internal and external rotation. All ranges of motion produced pain. The diagnosis was bursitis of the right shoulder with mild limitation of motion. On VA examination in May 2007, the veteran complained of significant pain throughout her body, most notably in her hands, shoulders, ankles, wrists, and hips bilaterally. She reported using a wheelchair for ambulation outside of the house and using a walker within the house. She stated that she also used a wrist brace bilaterally. She reported that her pain waxed and waned but denied flare-ups. She stated that she injured her back during service and was subsequently diagnosed with rheumatoid arthritis of the hands, wrist joints, ankles, and rib cages in 1989. Examination revealed the veteran in a wheelchair and wearing splints on both wrists. She had a slow, slightly antalgic gait with normal heel-to-toe process and good posture. Examination of the hips showed 100 degrees active and passive range of motion for the left hip and 90 degrees active and passive range of motion for the right hip. There was 10 degrees extension bilaterally, 20 degrees abduction and adduction bilaterally, and 30 degrees internal and external rotation bilaterally. There was pain on all motion. Both hips were stable, and the right hip had a diffuse achy pain that was slightly more pronounced with deep palpation about the hip. An x-ray of the bilateral hips revealed mild rheumatoid changes in both hips with prominent osteophyte formation on the acetabular roof. Examination of the ankles revealed tenderness to palpation diffusely about the joints. There were no abnormal masses, effusion, significant malalignment, or varus or valgus instability. Neural status was intact with good sensation. There was good plantar and dorsiflexion strength. Active and passive range of motion of plantar flexion was 30 degrees with pain, and dorsiflexion was 20 degrees with pain. There was pain in the left subtalar joint with provocative passive range of motion. An x-ray of the bilateral ankles showed decreased joint space with osteophyte formation and arthritic changes that were worse on the left side. Examination of the shoulders revealed global tenderness with deep palpation. There were no provocative signs of frank rotator cuff tear, biceps tendonitis, or evidence of impingement. Range of motion testing showed 110 degrees flexion of the left shoulder and 90 degrees flexion of the right shoulder. There was 90 degrees abduction of the left shoulder and 100 degrees abduction of the right shoulder. There was 40 degrees rotation of the left shoulder and 30 degrees rotation of the right shoulder. All ranges of motion produced pain. Bilateral shoulder x-rays revealed moderate rheumatoid arthritis and no frank ankylosis. Examination of the wrists revealed a small palpable nodule on the dorsum of the left wrist. There was 40 degrees dorsiflexion bilaterally, 30 degrees palmar flexion of the left wrist and 40 degrees palmar flexion of the right wrist, and 20 degrees radial and ulnar deviation bilaterally. There was pain on all ranges of motion. There was no significant metacarpophalangeal ulnar drift, but there was tenderness to palpation at the tip of the distal ulna, slight loss of grip strength of the left wrist, and positive pain with grind test of the first carpometacarpal joints bilaterally. Bilateral wrist x-rays showed no ankylosis, but there was slight radiocarpal collapse, blunting on both right and left ulnar styloids, and evidence of carpometacarpal joint arthritis with moderate joint space compromise. The diagnoses were bilateral rheumatoid changes in the hands, bilateral mild rheumatoid arthritis of the shoulders, bilateral rheumatoid arthritic changes of the bilateral ankles, bilateral radiocarpal collapse consistent with rheumatoid arthritis of the wrists, and mild bilateral rheumatoid arthritis of the hips. The examiner opined that the veteran's impairment was secondary to rheumatoid arthritis that was diagnosed in 1989 long after separation from service. He stated that it was unlikely that the low back disability caused or aggravated the veteran's multiple rheumatoid joints. On VA examination in June 2007, the examiner reviewed the veteran's entire claims file and stated that his opinion had not changed since the May 2007 examination. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence is against a finding of a direct nexus between military service and the veteran's current arthritis of the hands, shoulders, ankles, wrists, and hips. The evidence is also against a finding that the arthritis is a result of the veteran's service- connected low back disability. In addition, arthritis was not diagnosed within one year of separation, so presumptive service connection for arthritis of the hands, shoulders, ankles, wrists, and hips is not warranted. The veteran contends that her current arthritis of the hands, shoulders, ankles, wrists, and hips is related to her active service. However, as a layperson, she is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what she experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The veteran contends that the evidence shows continuity of symptoms after discharge and supports her claim for service connection. However, the first post-service evidence of the veteran's arthritis is in February 1993, approximately 16 years after her separation from service. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that the preponderance of the medical evidence weighs against a finding that the veteran's arthritis of the hands, shoulders, ankles, wrists, and hips developed in service. Therefore, the Board concludes that the arthritis of the hands, shoulders, ankles, wrists, and hips was not incurred in or aggravated by service. In addition, the Board finds that the evidence is against a finding that the veteran's arthritis is proximately due to, the result of, or aggravated by her service-connected low back disability. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in October 2001; a rating decision in March 1999; a statement of the case in August 1999; and a supplemental statement of the case in March 2002. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the September 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for arthritis of the hands, shoulders, ankles, wrists, and hips, to include as secondary to a service-connected low back disability, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs