Citation Nr: 0810617	
Decision Date: 03/31/08    Archive Date: 04/09/08

DOCKET NO.  04-38 195A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for arthritis.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady 
Attorney at Law


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The veteran served on active duty from December 1973 to May 
1982.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a June 2004 rating decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in Wichita, 
Kansas, which denied the claim.

In September 2006, the Board remanded the veteran's appeal 
for additional development.  The case has now been returned 
to the Board for further appellate consideration.  As a 
preliminary matter, the Board finds that the remand 
directives have been satisfied, and, thus, a new remand is 
not required to comply with the holding of Stegall v. West, 
11 Vet. App. 268 (1998).

The Board notes that when this case was remanded in September 
2006 it also include the issues of service connection for 
gastritis, an acquired psychiatric disorder, hepatitis C, and 
whether new and material evidence had been received to reopen 
the previously denied claim of service connection for 
headaches.  However, service connection was granted for these 
disabilities by an October 2007 rating decision.  In view of 
the foregoing, these issues have been resolved and are not on 
appeal before the Board.  See generally Grantham v. Brown, 
114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 
F.3d 1030 (Fed. Cir. 1997).

As an additional matter, the Board observes that, by an 
October 2004 decision, it found that new and material 
evidence had not been received to reopen previously denied 
claims of service connection for disabilities of the neck, 
right shoulder, and low back.  While the veteran did appeal 
that decision to the United States Court of Appeals for 
Veterans Claims (Court), a September 2005 Court Order 
reflects the appeal was dismissed on the veteran's own 
motion.  Therefore, these issues are no longer before the 
Board.


FINDINGS OF FACT

1.  All reasonable development and notification necessary for 
the equitable disposition of the instant case has been 
completed.

2.  Arthritis was not shown during service or during the 
first postservice year.


CONCLUSION OF LAW

Arthritis was not incurred in or aggravated during the 
veteran's active service and may not be presumed to be 
related thereto.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 
1131, 1137, 5103, 5103A and 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.303, 3.307, 3.309 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that VA has an obligation to 
notify claimants what information or evidence is needed in 
order to substantiate a claim, as well as a duty to assist 
claimants by making reasonable efforts to get the evidence 
needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also 
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The Court has held that adequate notice, as required by 
38 U.S.C. § 5103(a), must be provided to a claimant before 
the initial unfavorable agency of original jurisdiction 
decision on a claim for VA benefits.  Pelegrini v. Principi, 
18 Vet. App. 112, 120 (2004).  In this case, the veteran was 
sent pre-adjudication notice by letters dated in December 
2003 and January 2004, which is clearly prior to the June 
2004 rating decision.  He was also sent additional 
notification by letters dated in February and March 2007.

Taken together, these letters informed the veteran of the 
evidence necessary to substantiate his current appellate 
claim, what information and evidence he must submit, what 
information and evidence will be obtained by VA, and 
indicated the need for the veteran to advise VA of or to 
submit any evidence in his possession that was relevant to 
the case.  As such, this correspondence fully complied with 
the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the holding in Quartuccio, supra.  
Moreover, the February 2007 letter contained the specific 
information regarding disability rating(s) and effective 
date(s) outlined by the Court's holding in Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied 
and that claimants are given the opportunity to submit 
information and evidence in support of their claims.  Once 
this has been accomplished, all due process concerns have 
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 
38 C.F.R. § 20.1102 (harmless error).  In view of the 
foregoing, the Board finds that the veteran was notified and 
aware of the evidence needed to substantiate this claim and 
the avenues through which he might obtain such evidence, and 
of the allocation of responsibilities between himself and VA 
in obtaining such evidence.  Accordingly, there is no further 
duty to notify.

In addition, the duty to assist the veteran has been 
satisfied in this case.  All relevant medical records 
pertinent to the issue on appeal are in the claims folder.  
Nothing indicates that the veteran has identified the 
existence of any relevant evidence that has not been obtained 
or requested.  The Board further notes that he did not 
respond to the February 2007 letter's request that he 
indicate whether he was seeking service connection for 
arthritis as a systemic disease or for arthritis which 
affects specific joints.  See Wood v. Derwinski, 1 Vet. App. 
190, 193 (1991) (The duty to assist is not a "one-way 
street."  If the veteran wants help, he cannot passively 
wait for it in those circumstances where he may or should 
have information that is essential in obtaining the putative 
evidence.).  Although no examination was accorded to him 
regarding his arthritis claim, for the reasons detailed below 
the Board finds that no such development is warranted based 
on the facts of this case.  Consequently, the Board concludes 
that the duty to assist has been satisfied.

The Board notes that it has thoroughly reviewed the record in 
conjunction with this case.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, the 
extensive evidence submitted by the appellant or on his 
behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. 
Cir. 2000) (the Board must review the entire record, but does 
not have to discuss each piece of evidence).  Rather, the 
Board's analysis below will focus specifically on what the 
evidence shows, or fails to show, on the claim.  See 
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting 
that the Board must analyze the credibility and probative 
value of the evidence, account for the evidence which it 
finds to be persuasive or unpersuasive, and provide the 
reasons for its rejection of any material evidence favorable 
to the claimant).  

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the benefit of the doubt shall be given to the 
claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt 
arises regarding service origin, such doubt will be resolved 
in the favor of the claimant. Reasonable doubt is doubt which 
exists because of an approximate balance of positive and 
negative evidence which does not satisfactorily prove or 
disprove the claim.  38 C.F.R. § 3.102.  The question is 
whether the evidence supports the claim or is in relative 
equipoise, with the claimant prevailing in either event, or 
whether a fair preponderance of the evidence is against the 
claim, in which event the claim must be denied.  See Gilbert 
v. Derwinski, 1 Vet. App. 49, 54 (1990).  

In this, and in other cases, only independent medical 
evidence may be considered to support medical findings.  The 
Board is not free to substitute its own judgment for that of 
such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 
175 (1991).  Here, nothing on file shows that the veteran has 
the requisite knowledge, skill, experience, training, or 
education to render a medical opinion.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  Consequently, his 
contentions cannot constitute competent medical evidence.  
38 C.F.R. § 3.159(a)(1).


Legal Criteria.  Service connection may be established for a 
disability resulting from disease or injury incurred in or 
aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 
38 C.F.R. § 3.303.  Evidence of continuity of symptomatology 
from the time of service until the present is required where 
the chronicity of a condition manifested during service 
either has not been established or might reasonably be 
questioned.  38 C.F.R. § 3.303(b).  Regulations also provide 
that service connection may be granted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disability 
was incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran served continuously for 90 days or more 
during a period of war, or during peacetime service after 
December 31, 1946, and arthritis becomes manifest to a degree 
of 10 percent or more within one year from date of 
termination of such service, such disease shall be presumed 
to have been incurred in service, even though there is no 
evidence of such disease during the period of service.  
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 
3.307, 3.309.

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); Mercado-Martinez v. West , 11 Vet. App. 415, 419 
(1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 
(1992)).  Where the determinative issue involves medical 
causation or a medical diagnosis, there must be competent 
medical evidence to the effect that the claim is plausible; 
lay assertions of medical status do not constitute competent 
medical evidence.  Espiritu v. Derwinski, 2 Vet. App. 492, 
494 (1992).  


Analysis.  In the instant case, the Board finds that service 
connection is not warranted for arthritis.

The Board observes that while the veteran has contended that 
service connection is warranted for his arthritis, he has not 
identified any specific injury from active service as the 
cause of this disability.  Moreover, as already noted, he did 
not respond to the February 2007 notification letter's 
request that he clarify whether he was seeking service 
connection for arthritis as a systemic disease or whether he 
was seeking service connection for arthritis affecting a 
specific joint or joints.

The Board further observes that the veteran's service medical 
records do not show he was diagnosed with arthritis during 
his active service.  For example, there was no indication of 
arthritis on his May 1982 discharge examination.  There was 
also no indication of arthritis in the post-service medical 
records until years after service.  For example, there were 
no findings of arthritis on VA medical examinations conducted 
in January 1997.  Thus, a basis is not established for the 
grant of service connection for arthritis on either a direct 
or presumptive basis.

The Court has indicated that the normal medical findings at 
the time of separation from service, as well as the absence 
of any medical records of a diagnosis or treatment for many 
years after service is probative evidence against the claim.  
See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) 
(affirming Board where it found that veteran failed to 
account for the lengthy time period after service for which 
there was no clinical documentation of low back condition); 
see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 
2000) (A prolonged period without medical complaint can be 
considered, along with other factors concerning a claimant's 
health and medical treatment during and after military 
service, as evidence of whether an injury or a disease was 
incurred in service which resulted in any chronic or 
persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 
(1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 
1358 (Fed. Cir. 2002) (noting that the definition of evidence 
encompasses "negative evidence" which tends to disprove the 
existence of an alleged fact).  

Finally, the Board observes that there is no competent 
medical opinion of record which relates the etiology of the 
veteran's arthritis to active service.  Moreover, the Board 
concludes that no development on this matter is warranted in 
this case.  In the absence of evidence of in-service 
incurrence or aggravation of the claimed disability, referral 
of this case for an opinion as to etiology would in essence 
place the examining physician in the role of a fact finder.  
This is the Board's responsibility.  In other words, any 
medical nexus opinion would not be supported by what actually 
occurred in service.  Simply put, there is no relevant 
complaint or clinical finding for a clinician to link the 
arthritis to the veteran's military service.  The Court has 
held on a number of occasions that a medical opinion premised 
upon an unsubstantiated account of a claimant is of no 
probative value.  See Godfrey v. Brown, 8 Vet. App. 113, 121 
(1995) (a medical opinion that is based on the veteran's 
recitation of medical history, and unsupported by clinical 
findings, is not probative); Bloom v. West, 12 Vet. App. 185, 
187 (1999) (A medical opinion based on speculation, without 
supporting clinical data or other rationale, does not provide 
the required degree of medical certainty); Black v. Brown, 5 
Vet. App. 177, 180 (1995) (A medical opinion is inadequate 
when unsupported by clinical evidence).  

For these reasons, the Board concludes that the preponderance 
of the evidence is against the veteran's claim of service 
connection for arthritis on either a direct or presumptive 
basis.  As the preponderance of the evidence is against the 
claim, the benefit of the doubt doctrine is not for 
application in the instant case.  See generally Gilbert, 
supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 
2001).  Consequently, the benefit sought on appeal must be 
denied.


ORDER

Entitlement to service connection for arthritis is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs