Citation Nr: 0811500	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  04-38 547 A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for a cardiovascular 
disorder.

3.  Entitlement to service connection for rheumatoid 
arthritis.

4.  Entitlement to a disability evaluation greater than 10 
percent for polyarthritis involving the shoulders, elbows, 
hands, fingers, knees, ankles, and toes.


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechner, Associate Counsel


INTRODUCTION

The veteran served on active duty from July 1951 to October 
1978.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from determinations issued in April 2004 
and December 2004 by the Department of Veterans Affairs 
Regional Office in St. Petersburg, Florida.

The veteran has also submitted a claim for service connection 
for asthma, although it has not yet been decided by the RO.  
That issue is therefore not before the Board at this time.

This matter was advanced on the Board's docket based upon the 
age of the appellant.  38 U.S.C. § 7107; 38 C.F.R. 
§ 20.900(c).


FINDINGS OF FACT

1.  The evidence, overall, demonstrates that the veteran's 
hypertension was not incurred while on active duty from July 
1951 to October 1978.

2.  The evidence, overall, demonstrates that the veteran's 
cardiovascular disorder was not incurred while on active duty 
from July 1951 to October 1978.

3.  Overall, there is no evidence of a confirmed diagnosis or 
any current existing rheumatoid arthritis.

4.  The medical evidence includes X-ray evidence of 
involvement of 2 or more major joints or 2 or more minor 
joint groups, with occasional incapacitating exacerbations of 
polyarthritis.


CONCLUSIONS OF LAW

1.  Service connection for hypertension is not established.  
38 U.S.C.A. 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.303, 3.304 (2007).

2.  Service connection for cardiovascular disorder is not 
established.  38 U.S.C.A. 1110, 5107 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.303, 3.304 (2007).

3.  Service connection for rheumatoid arthritis is not 
established.  38 U.S.C.A. 1110, 5107 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.303, 3.304 (2007).

4.  The criteria for a higher rating for polyarthritis have 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.321(b)(1), 4.1-4.7, 4.21, 4.71(a), Diagnostic Codes 
5003, 5021, 5200 etc.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by 
service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In 
general, service connection requires (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).

A disease must be shown to be of a chronic nature in service, 
or if not chronic, then seen in service with continuity of 
symptomatology demonstrated after discharge from service.  38 
C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 
(1997).  Disorders diagnosed after discharge may still be 
service connected if all the evidence, including pertinent 
service records, establishes that the disorder was incurred 
in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 
1039, 1043 (Fed. Cir. 1994).

A layperson is generally not capable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 
183, 186 (1997).  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 generally do not 
constitute competent medical evidence.  Grottveit v. Brown, 5 
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 
492, 494 (1992).  However, lay evidence can be competent and 
sufficient to establish a diagnosis of a condition when (1) a 
layperson is competent to identify the medical condition, 
(e.g., a broken leg), (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 
(Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the 
readily observable features or symptoms of injury or illness 
and "may provide sufficient support for a claim of service 
connection".  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
See also 38 C.F.R. § 3.159(a)(2).  In this regard, the Court 
of Appeals of Veterans' Claims (Court) recently emphasized 
that when a condition may be diagnosed by its unique and 
readily identifiable features, the presence of the disorder 
is not a determination "medical in nature" and is capable 
of lay observation.  In such cases, the Board is within its 
province to weigh that testimony and to make a credibility 
determination as to whether that evidence supports a finding 
of service incurrence and continuity of symptomatology 
sufficient to establish service connection.  See Barr v. 
Nicholson, 21 Vet. App. 303 (2007).

Competent medical evidence means evidence provided by a 
person who is qualified through education, training, or 
experience to offer medical diagnoses, statements, or 
opinions.  Competent medical evidence may also mean 
statements conveying sound medical principles found in 
medical treatises.  Competent medical evidence may also 
include statements contained in authoritative writings, such 
as medical and scientific articles and research reports or 
analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence 
means any evidence not requiring that the proponent have 
specialized education, training, or experience.  Lay evidence 
is competent if it is provided by a person who has knowledge 
of facts or circumstances and conveys matters that can be 
observed and described by a lay person.  38 C.F.R. 
§ 3.159(a)(2).

1.  Hypertension

The first requirement for any service connection claim is the 
existence of a current disability.  Boyer, 210 F.3d at 1353; 
Brammer, 3 Vet. App. at 225.  Evidence submitted by the 
appellant includes private medical records detailing 
treatment by Dr. "G.", as well as consultations with Drs. 
"M.", "A.", and "B.", for several medical conditions, 
including hypertension.  Treatment consists mainly of 
prescribed medications.  Based on the above, the evidence 
indeed shows current hypertension.

The second requirement for service connection is evidence of 
in-service incurrence of an injury or disease.  The veteran 
was an air traffic controller during his many years in 
service.  The veteran has stated that he has been treated for 
hypertension since the late 1960s.  He contends that his 
blood pressure was not accurately and promptly checked during 
his physical examinations in service.

Unfortunately, a review of the service medical records (SMRs) 
reveals no indication of complaints, diagnosis, or treatment 
for hypertension while in service.  The examination upon 
separation from service does not include any indication of 
hypertension.  This is highly probative negative evidence 
against the claim.

Even if the veteran's statements regarding not accurately 
checked blood pressure readings (done, according to the 
veteran, to allow him to pass service physicals) are true, 
this would not explain why the veteran was not treated or 
diagnosed with hypertension until years after service (when 
hiding the veteran's blood pressure problem would not be an 
issue), providing more evidence against this claim.  Simply 
stated, service and post-service treatment records provide 
evidence against this claim, indicating a disorder that began 
after service.     

The third requirement for establishing service connection is 
medical evidence of a nexus between the claimed in-service 
disease or injury and the current disability.  The competent 
evidence of record provides evidence against a finding of a 
nexus between the veteran's hypertension and his period of 
active service.  Boyer, 210 F.3d at 1353; Maggitt v. West, 
202 F.3d 1370, 1375 (Fed. Cir. 2000).  Specifically, the 
veteran began treatment for hypertension more than one year 
after service, although the date of initial diagnosis is 
unclear.  In any event, it was after service.      

To fulfill the burden of proof for service connection, the 
medical evidence must demonstrate that the current disability 
was at least as likely as not (a 50 percent probability) 
caused by, or a result of the claimed in-service injury or 
disease.  Unfortunately, no medical evidence was submitted to 
demonstrate whether it is at least as likely as not that the 
hypertension was caused by military service.

Simply stated, the Board finds that the treatment records 
provide evidence against this claim, indicating a disorder 
that began more than one year after service without 
connection to service. 

Based on the above, the Board concludes that the 
preponderance of the evidence is against the veteran's claim 
of entitlement to service connection for hypertension.  In 
denying his claim, the Board has considered the doctrine of 
reasonable doubt; however, as the preponderance of the 
evidence is against the veteran's claim, the doctrine is not 
for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. 
§ 3.102.



2.  Cardiovascular disorder

Evidence submitted by the appellant includes private medical 
records that indicate a current status post myocardial 
infarction.  Based on the above, the evidence indeed shows a 
current cardiovascular disorder.

The veteran has stated that he suffered two mild heart 
attacks while in service, the first in 1977 and the second in 
1978.  The SMRs do reveal complaints of chest pain in 1976 
and 1977.  However, physical examinations were negative for 
myocardial infarctions, and EKGs and chest X-rays were within 
normal limits, providing evidence against the veteran's lay 
statements, outweighing his statements.  The impressions for 
the two occasions of chest pain were peripheral neuritis and 
fibromyositis, as opposed to a cardiovascular disability.  
The examination upon separation from service does not include 
any indication of cardiovascular disorder.  This is highly 
probative negative evidence against the claim.

Post-service, it is significant that the veteran does not 
appear to have received treatment for cardiovascular disease 
until 2005, approximately 27 years after discharge from 
service.  The United States Court of Appeals for the Federal 
Circuit has determined that such a lapse of time is a factor 
for consideration in deciding a service connection claim.  
Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).

The competent evidence of record provides evidence against a 
finding of a nexus between the veteran's current 
cardiovascular disorder and his period of active service.  
Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 
(Fed. Cir. 2000).  Specifically, the veteran began treatment 
for cardiac disease approximately twenty-seven years after 
service.  

Unfortunately, no medical evidence was submitted to indicate 
it is at least as likely as not that the cardiovascular 
disorder was caused by military service.  Simply stated, the 
Board finds that the treatment records provide evidence 
against this claim. 

The Board acknowledges that the veteran has submitted lay 
statements and hearing testimony indicating that he was 
treated for cardiac disease during service.  The veteran's 
lay contentions in this case are outweighed by the medical 
evidence which indicates that the veteran did not receive 
treatment for cardiovascular disease until over two decades 
after discharge from service.  See generally Barr v. 
Nicholson, supra.  Simply put, the veteran's contentions are 
not consistent with the other evidence of record, in some 
cases very clear evidence (EKGs, x-rays, etc.) and are 
outweighed by this evidence.

The Board finds that the service medical records and the 
post-service medical records outweigh the veteran's 
statements.  The medical evidence of record does not support 
the contention that the veteran's cardiovascular disorder is 
connected to service and provides evidence against such 
finding.  In denying this claim, the Board has considered the 
doctrine of reasonable doubt; however, as the preponderance 
of the evidence is against the veteran's claim, the doctrine 
is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. 
§ 3.102.

3.  Rheumatoid arthritis

The veteran claims that he suffers from rheumatoid arthritis 
that was incurred during his time in service. 

The veteran has submitted multiple private medical records 
indicating ongoing treatment for osteoarthritis.  He contends 
that he also suffers from rheumatoid arthritis.  However, 
neither the SMRs nor the post service treatment records 
contain any confirmed diagnosis of rheumatoid arthritis.

The medical records, both in-service and post service, 
mention the "possibility" of rheumatoid arthritis on 
several occasions.  In November 1970, the veteran received a 
diagnosis of probable rheumatoid arthritis after reporting a 
tender left elbow.  The following month, the records show an 
impression of possible rheumatoid arthritis.  In January 
1971, the veteran was grounded from duty for observation for 
suspected rheumatoid arthritis.  However, the final diagnosis 
at that time was of polyarthritis, etiology undetermined.  
Polyarthritis will be discussed below as a separate issue.

Post-service, there has been no diagnosis of rheumatoid 
arthritis, definite or otherwise.  The veteran has, however, 
been diagnosed and treated for ongoing degenerative joint 
disease and osteoarthritic changes.

In March 2007, the veteran was afforded a VA examination 
pursuant to his claims for rheumatoid arthritis and 
polyarthritis.  The examiner's clinical findings did not meet 
the criteria for rheumatoid arthritis.  The examiner opined 
that the condition for which the veteran was treated during 
service is less likely rheumatoid arthritis, and that the 
polyarthritis is at least as likely as not the same condition 
for which he was treated in service.  The Board finds that 
this opinion is entitled to some probative weight.

The VA examination, the post-service treatment records, and 
the service treatment records lead to the conclusion that the 
veteran does not have rheumatoid arthritis at this time, 
outweighing the veteran's lay testimony that he has this 
problem, at this time.  Clearly, some of the evidence 
indicates that the veteran "may" have this problem, but 
more detailed evaluations, following these indicates, and has 
clearly provided evidence against such a finding. 

In the absence of proof of a present disability there can be 
no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992).  Service connection requires a finding of the 
existence of a current disability and a determination of a 
relationship between that disability and an injury or disease 
incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 
(1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. 
Cir. 2000).

Simply stated, the Board finds that the treatment records 
provide evidence against this claim.  In denying this claim, 
the Board has considered the doctrine of reasonable doubt; 
however, as the preponderance of the evidence is against the 
veteran's claim, the doctrine is not for application.  See 
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


4.  Polyarthritis

The veteran is currently service connected for polyarthritis 
involving the shoulders, elbows, hands, fingers, knees, 
ankles, and toes.  This disability is evaluated at 10 percent 
disabling, effective December 4, 2001.

Disability ratings are determined by applying the criteria 
set forth in VA's Schedule for Rating Disabilities, which is 
based on the average impairment of earning capacity.  
Individual disabilities are assigned separate diagnostic 
codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

If there is disagreement with the initial rating assigned 
following a grant of service connection, separate ratings can 
be assigned for separate periods of time, based on the facts 
found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); see 
AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original 
or an increased rating remains in controversy when less than 
the maximum available benefit is awarded).  If two 
evaluations are potentially applicable, the higher evaluation 
will be assigned if the disability picture more nearly 
approximates the criteria required for that rating; 
otherwise, the lower rating will be assigned.  38 C.F.R. § 
4.7.  Reasonable doubt as to the degree of disability will be 
resolved in the veteran's favor.  38 C.F.R. § 4.3.

In evaluating the severity of a particular disability, it is 
essential to consider its history.  38 C.F.R. § 4.1; Peyton 
v. Derwinski , 1 Vet. App. 282 (1991).  Where there is a 
question as to which of two evaluations shall be applied, the 
higher rating will be assigned if the disability picture more 
nearly approximates the criteria required for that 
evaluation.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.  

Pertinent regulations do not require that all cases show all 
findings specified by the Rating Schedule, but that findings 
sufficiently characteristic to identify the disease and the 
resulting disability and above all, coordination of rating 
with impairment of function, will be expected in all cases.  
38 C.F.R. § 4.21.  Therefore, the Board has considered the 
potential application of various other provisions of the 
regulations governing VA benefits, whether or not they were 
raised by the veteran, as well as the entire history of the 
veteran's disability in reaching its decision.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 595 (1991).

Compensation for service-connected injury is limited to those 
claims which show present disability.  Where entitlement to 
compensation has already been established and an increase in 
the disability rating is at issue, the present level of 
disability is of primary importance.  Francisco v. Brown, 
7 Vet. App. 55, 58 (1994).  However, separate ratings may be 
assigned for separate periods of time based on the facts 
found.  

The veteran's condition was originally evaluated as 10 
percent disabling under 38 C.F.R. § 4.71a, DC 5021, myositis.  
The Board has considered the veteran's current condition 
under multiple diagnostic codes for degenerative arthritis 
and for specific joints involved, including those of 
limitation of motion.  However, the most appropriate code, 
and the most favorable to the veteran's claim, remains DC 
5021.  Under this code, a rating of 10 percent is assigned if 
there is X-ray evidence of involvement of 2 or more major 
joints or 2 or more minor joint groups.  The rating may be 
increased to 20 percent if there is also evidence of 
occasional incapacitating exacerbations.

Taking into account all of the lay and medical evidence, the 
evidence indeed shows occasional incapacitating exacerbations 
of the veteran's polyarthritis.  The relevant diagnostic 
codes do not allow for a rating greater than 20 percent for 
degenerative osteoarthritis without a showing of ankylosis or 
limitations of motion more severe than those demonstrated by 
the veteran in the March 2007 VA examination, which detailed 
the movements of each joint involved in the veteran's 
disability.

The Board has considered whether it could give higher 
separate ratings for each problem, and whether that would 
provide the veteran more compensation.  For example, could 
the Board provide the veteran compensable evaluations for 
each knee and both shoulders?  In this case, the Board finds 
that the March 2007 examination provides evidence against 
such actions.  The examination provided detailed range of 
motion for each joint involved, and also considered the 
veteran's pain and limitations caused by pain.  None of these 
results provide a basis to find a compensable evaluation is 
warranted for any one or more joint that would provide the 
veteran more than 20 percent for his disability.  The report 
provides evidence against such a finding.     

The Board therefore grants an evaluation of 20 percent for 
this claim.  

Duty to notify and assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
In this case, although the notice provided did not address 
either the rating criteria or effective date provisions that 
are pertinent to the appellant's claim, such error was 
harmless given that service connection is being denied, and 
hence no rating or effective date will be assigned with 
respect to this claimed condition.  

Here, the VCAA duty to notify was satisfied by way of letters 
sent to the appellant in May 2002 and September 2003 that 
fully addressed all four notice elements and was sent prior 
to the initial AOJ decision in this matter.  The letters 
informed the appellant of what evidence was required to 
substantiate the claims and of the appellant's and VA's 
respective duties for obtaining evidence.  The appellant was 
also asked to submit evidence and/or information in her or 
his possession to the AOJ.

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  These four factors are:  
(1) whether there is competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims has stated that this element establishes 
a low threshold and requires only that the evidence 
"indicates" that there "may" be a nexus between the 
current disability or symptoms and the veteran's service.  
The types of evidence that "indicate" that a current 
disability "may be associated" with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

In this case, a VA examination was not provided pursuant to 
the claims for hypertension and a cardiovascular disorder.  
The evidence does not establish that these diseases occurred 
in service or manifested during the applicable presumption 
period of one year after service.  Therefore, the threshold 
in McLendon was not met.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The veteran submitted private 
treatment records from several providers, and was provided an 
opportunity to set forth his contentions during the hearing 
before the undersigned Veterans Law Judge in February 2008.  
The appellant was afforded a VA medical examination in March 
2007.  Significantly, neither the appellant nor his or her 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  Hence, no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

Service connection for hypertension is denied.

Service connection for a cardiovascular disorder is denied.

Service connection for rheumatoid arthritis is denied.

A disability rating of 20 percent for polyarthritis is 
granted.


____________________________________________
JOHN J. CROWLEY,
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs