Citation Nr: 0811068 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-27 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for arthritis, to include rheumatoid arthritis. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran had active military service from June 1965 to September 1973 and from April 1975 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In February 2005, the veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The veteran also previously offered testimony at a hearing held at the RO before VBA personnel in November 2003. A transcript of that hearing is also of record. This claim was previously before the Board in May 2006 at which time it was remanded for both due process concerns and for additional evidentiary development, to include affording the veteran a VA examination. The actions requested in that remand have been undertaken and the case has returned to the Board for appellate consideration. The Board previously observed that on the VA Form 9 received in July 2004, the veteran noted that he felt that problems with his kidney that required hospitalization were secondary to diabetes. It is not clear whether the veteran intends to pursue a claim on this basis and this matter is referred to VBA for clarification and additional action, as required. FINDINGS OF FACT 1. A diagnosis of rheumatoid arthritis is not definitively established by the medical evidence in this case. 2. The competent evidence fails to demonstrate that arthritis (any form) manifested during either of the veteran's periods of service or during the first post-service year; currently manifested arthritis was initially diagnosed years after the veteran's discharge from service and is not related to the veteran's active duty service. CONCLUSION OF LAW Arthritis (any form) was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims folder, the Board finds that letters dated in February 2003 and May 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Collectively, these letters advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The Board notes that the May 2006 letter was sent to the veteran after the March 2003 rating decision. Although this letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since the claim was readjudicated thereafter and an additional supplemental statement of the case (SSOC) was provided to the appellant in September 2007. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Further, through his statements, the veteran has demonstrated his understanding of what is necessary to substantiate his claim, i.e., any notice defect was cured by the veteran's actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In any event, the Board finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim and thus the essential fairness of the adjudication was not frustrated. Id. As such, the Board concludes that, even assuming a notice error, that error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The May 2006 letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board finds that VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007). In this regard, the veteran's service medical records are associated with the claims folder, as well as all relevant VA and non-VA treatment records. He has provided hearing testimony on two occasions, in both 2003 and 2005. Records from the Social Security Administration have also been obtained. The veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claim. A VA examination was provided in conjunction with the veteran's claim in 2007, which included a comprehensive review of the evidence and an opinion addressing the question of an etiological relationship between the veteran's active service and currently diagnosed arthritis. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Factual Background The veteran filed his original service connection claim for rheumatoid arthritis in October 2002, indicating that this condition initially arose in October 1985. The service medical records (SMRs) from the veteran's first period of service show that upon enlistment examination of June 1965, clinical evaluation of the upper and lower extremities as well as the feet and spine, was normal. In December 1966, the veteran was seen for complaints of a right thumb injury after falling from a tank. X-ray films were negative and a sprain was diagnosed. The veteran was treated for a laceration of the left hand in November 1967. In August 1969, the veteran was seen due to complaints of a left thumb injury. X-ray films of the left thumb were normal. The veteran was seen with complaints of swelling in the hands in August 1970. He was treated for back pain in December 1971. The August 1973 separation examination report revealed that clinical evaluation of the upper and lower extremities as well as the feet and spine, was normal. The veteran underwent a VA examination in January 1974. His complaints included stiffness of the back, occurring every 3 to 4 months. X-ray films of the cervical and lumbar spine taken in January 1975, were negative for evidence of arthritis. A diagnosis of disorder of the low back, not found, was made. SMRs from the veteran's second period of service include a January 1975 enlistment examination which reveals that clinical evaluation of the upper and lower extremities as well as the feet and spine, was normal. The veteran denied having symptoms of swollen or painful joints, or of arthritis, rheumatism or bursitis. In June 1975, the veteran complained of loss of strength and range of motion of the left hand and of shin splints. Throughout the remainder of the second period of service, the veteran was treated for shin splints. He was also treated for: torn ligaments of the right ankle (May 1976), chronic stress reactions of both tibias (August 1976); left thumb symptoms (March 1977); and sclerotic changes of the right tibia (April 1978). An examination conducted in April 1978, prior to separation, revealed that clinical evaluation of the upper and lower extremities as well as the feet and spine, was normal. The veteran reported having symptoms of swollen or painful joints, and indicated that he did not know if he had symptoms of arthritis, rheumatism or bursitis. A VA examination was conducted in August 1978. The veteran complained of pain and soreness of the shins. X-ray films of the right and left tibias were negative. A diagnosis of a history of leg pain, no abnormalities found, was made. Service connection for pathology of the legs, to include shin splints, was denied in a December 1978 rating action. VA medical records dated in 1992 show that the veteran was seen for complaints of leg pain/shin splints, diagnosed as musculoskeletal pain. The veteran underwent a VA orthopedic evaluation in July 1992, particularly for evaluation of the hands for possible arthritis. The veteran gave a history of a left hand injury in 1975. An impression of an old fracture of the left 5th finger, without apparent functional impairment, but with symptoms of edema and weakness, which the examiner could not explain on an orthopedic basis, was made. Service connection for traumatic arthritis of both hands was denied in an August 1992 rating action. A VA examination of the joints was conducted in April 1996. The veteran complained of soreness in the legs and symptoms of weakness and numbness of the hands. The impression pending review of X-ray films was upper extremity and forearm myalgia without apparent explanation except for skeletal build and tibial pain, similar to shin splints, probably related to circulatory impairment and skeletal build. X-ray films of the tibia and fibula revealed no gross osseous, joint or soft tissue abnormality. X-ray films of the forearm revealed no gross osseous, joint or soft tissue abnormality. VA records reflect that the veteran was seen in December 2001 with complaints of joint pain, particularly in the wrists. The doctor noted that a rheumatoid factor had been negative on two occasions. An impression of a suggestion of inflammatory arthropathy (mostly historical) and the possible presence of non-organic factors, was made. The doctor stated that the presentation was most compatible with seronegative rheumatic arthritis. VA records dated in 2002 show that the veteran was being followed for conditions described as rheumatoid arthritis and inflammatory arthropathy. Evidence and medical records furnished by the Social Security Administration reveal that the veteran was determined to be disabled due to osteoarthritis and allied disorders, effective from January 2002. Service connection for rheumatoid arthritis was denied in a March 2003 rating action. The veteran presented testimony at a hearing held at the RO in November 2003. The veteran indicated that he was in receipt of Social Security disability benefits for medical conditions including arthritis. The veteran indicated that during service in Germany, he had to go to a doctor due to symptoms of swelling and joint pain in the hands. The veteran stated that the doctor diagnosed arthritis at that time. The veteran indicated that after service, his joint problems did not resurface until about 1999. The veteran indicated that he did not have a medical record or opinion linking rheumatoid arthritis with service. A VA record dated in November 2003, indicates that prescribed medications had not significantly improved the veteran's symptoms of multiple joint pain and stiffness. An impression of non-erosive arthritis was made. In December 2003, the veteran underwent a VA neurological evaluation. The report indicated that diabetes had been diagnosed months previously. The veteran reported having a several year history of symptoms of pain and swelling of the hands and feet. The examiner explained that the veteran's complaints pre-dated the development of diabetes and observed that physical examination had revealed no signs of motor involvement. The report stated that the superficial sensory loss was not consistent with diabetic neuropathy. EMG (right lower extremity) and nerve conduction studies were recommended and performed in January 2004 and were normal; without objective evidence supporting the presence of significant diabetic neuropathy. VA records dated in 2004 show that the veteran continued to be treated for arthritis. The veteran presented testimony a travel Board hearing held in February 2005. The veteran indicated that he thought that cold weather and temperatures which he was exposed to while serving in Germany and Korea had caused rheumatoid arthritis. He stated that he had never gone to sick call during service for arthritis or arthritic symptoms, but he was seen at one point (in Germany) possibly in 1967, for pain in the hands. The veteran indicated that no doctor had ever told him that the arthritis was related to his military service. Pursuant to a May 2006 Board remand, VA records dated from 1984 to 1994 were added to the file in 2006. As previously mentioned herein, records dated in 1992 and 1993 revealed treatment for leg pain/shin splints. However, the records were entirely negative for a diagnosis of or for X-ray evidence of any type of arthritis of any joint. A bone scan of both legs done in July 1992 noted that possibly degenerative changes were shown in the area of the knee joints. However, follow-up films of the knees taken in September 1992 revealed no gross osseous, joint or soft tissue abnormality. X-ray films of the right hip and lumbosacral spine taken in January 1993 revealed no abnormality. Testing done in May 1993 was inconclusive for chronic compartment syndrome of the lower extremities; however the possibility that a false negative result was obtained was discussed in an October 2003 record. A VA examination was conducted in April 2007 and the claims folders were reviewed. The veteran complained of a 5 year history of pain in the hands, feet and left buttock area, and also complained of knee pain. It was noted that from 2002 to 2004 he had been treated for inflammatory arthritis, which was thought to be consistent with seronegative rheumatoid arthritis. The examiner observed that the criteria for rheumatoid arthritis had never been met and that the rheumatoid factor was shown to be negative on more than one occasion. The VA examiner referenced a couple of instances in the service medical records (such as April 1978) which documented complaints of joint pains, but mentioned that arthritis was not diagnosed in service. Physical examination revealed findings consistent with moderate osteoarthritis of the hands, but the examination was otherwise normal. The examiner opined that it was unlikely that any of the current findings of arthritis were related to symptoms or signs recorded during military service. Additional testing including X-ray films was ordered and a rheumatoid factor was negative. Having reviewed additional test results, the examiner concluded that the findings were entirely consistent with the initial opinion. Legal Analysis The Board has thoroughly reviewed all the evidence in the appellant's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the 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). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease 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 within 1 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran generally contends that cold weather and temperatures to which he was exposed while serving in Germany and Korea caused some form of arthritis, to include rheumatoid arthritis. SMRs dated during both periods of active service document complaints of joint pains, as well as noting complaints of swollen or painful joints and problems with bilateral shin splints in 1978. Post-service medical records show that the veteran complained of leg pain/shin splints as early as 1978. However, the fact remains that arthritis was not diagnosed in service or within the first post-service year. Accordingly, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007) (certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service). A definitive post-service diagnosis of arthritis is first shown by medical evidence dated in 2001, more than 20 years after the veteran's discharge from service. From 2001 forward, several diagnoses were attributed to the veteran's joint pain, including inflammatory arthritis, osteoarthritis and "seronegative rheumatic arthritis" (indications of). As discussed by the VA examiner in 2007, a diagnosis of rheumatic arthritis has never been firmly established in this case, the criteria for rheumatoid arthritis have not been fully met according to any documented medical record and repeat test results have been negative for a rheumatoid factor. In essence, the record contains no current diagnosis of rheumatoid arthritis. However, inasmuch as a current diagnosis of arthritis, consistent with osteoarthritis was made in 2007, the presence of the currently claimed condition is established. However, currently diagnosed arthritis has not been in any way linked to the veteran's periods of service. In this case, no probative and/or competent evidence has been presented which establishes or even suggests that the veteran's post-service diagnosis of arthritis is etiologically related to his active service. A requirement for a showing of such a relationship has been repeatedly reaffirmed by the Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service (or a service connected disability) and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The only competent medical opinion on file addressing the matter of etiology, offered by a VA examiner in 2007, fails to support the veteran's claim. There is no contrary medical opinion of record. Moreover, the record here discloses a span of several years since the veteran's discharge from service without any clinical evidence to support an assertion of a continuity of symptomatology of arthritis. In view of the lengthy period without evidence of treatment for or even a diagnosis of arthritis, there is no evidence of a continuity of symptoms, and this weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board notes that treatment for leg pain/shin splints which was documented between 1978 and 2001, is not akin to or indicative of treatment for arthritis and the Board points out that service connection for shin splints was raised as a separate claim which was originally denied by VA in 1978. Although the evidence shows the presence of currently diagnosed arthritis, such evidence, alone, is insufficient to establish service connection. There must be competent evidence establishing an etiological relationship between an injury or disease in service and the current disability. The veteran, as a lay person, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, mere contentions, statements and hearing testimony of the veteran, no matter how well meaning, without supporting medical evidence that would etiologically relate the currently claimed condition with conditions or events which occurred in or are related to service, is not competent medical evidence. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board acknowledges that records from the Social Security Administration (SSA) show that the veteran was determined to be disabled due to osteoarthritis from January 2002, forward. However, VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Significantly, this decision and the evidence used in making the determination failed to establish or even suggest an etiological relationship between the veteran's periods of service and arthritis initially diagnosed more than two decades after his discharge. Thus, with consideration of the veteran's service medical records, the length of time following service prior to a recorded diagnosis of arthritis, and the absence of any medical opinion suggesting a causal link to the veteran's service, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for arthritis. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for arthritis, to include rheumatoid arthritis, is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs