Citation Nr: 0814258 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 07-29 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for arthritis of the fingers, hands, knees, and sacroiliac joints, claimed as degenerative arthritis of all major joints. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from September 1942 to August 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The November 2006 RO decision found that the veteran had not submitted new and material evidence to reopen the claim for service connection for arthritis and the previous denial of October 1984 was final. The veteran requested review by a Decision Review Officer (DRO). The DRO decision was announced in the July 2007 Statement of the Case (SOC). The DRO decision was partly favorable. It found that the veteran had submitted new and material evidence to reopen his claim, but that the evidence in its entirety was not sufficient to support his claim. The veteran and his representative have consequently based their substantive appeal and arguments to the RO and Board on a reopened claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that no matter how the RO developed the claim, VA has no jurisdiction to consider a finally denied claim unless the veteran submits new and material evidence. Therefore, the first determination which the Board must make, is whether the veteran has submitted new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has reviewed the record and agrees that the RO properly reopened the claim. Thus, the Board will address the issues as certified by the RO. The issue of entitlement to service connection for arthritis of the fingers, hands, and knees is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A bilateral hearing loss disability is not the result of disease or injury during the veteran's active service. 2. Tinnitus is not the result of disease or injury during the veteran's active service. 3. Arthritis of the sacroiliac joints was first manifested during the veteran's active wartime service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Tinnitus was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Arthritis of the sacroiliac joints was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1111 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 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 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). Here, the duty to notify was satisfied by way of letters sent to the veteran in June 2006 (hearing loss and tinnitus) and September 2006 (arthritis) that fully addressed all four notice elements and were sent prior to the initial AOJ decision in November 2006. The letters informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. The notice letters also informed the veteran, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006), that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Duty to Assist 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. The Board finds that, as to the issues decided at this time, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all VA and private medical records identified by the veteran. The service medical records are in the claims folder. The veteran has been examined and medical opinions obtained. Significantly, neither the veteran nor his 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 veteran is required to fulfill VA's duty to assist the veteran 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). Service Connection In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2007); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Arthritis and organic diseases of the nervous system, including sensorineural hearing loss may be presumed to have been incurred during active military service if manifest to a degree of 10 percent or more within the first year following active service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Hearing Loss & Tinnitus The veteran contends that his work around aircraft during service resulted in his current hearing loss and tinnitus. As a lay witness, he is competent to report what he experienced, such a noise exposure. However, he does not have the medical training or experience to determine the etiology or cause of a current disability. Specifically, he does not have the medical expertise to provide competent evidence that exposure to aircraft noise in service caused his current hearing loss and tinnitus. 38 C.F.R. § 3.159(a) (2007); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, there is no competent medical evidence to support the veteran's claim. There is nothing in the service medical records to show hearing loss or tinnitus. There is no competent medical evidence of a hearing loss or tinnitus in the first year after he left active service. There is no competent medical evidence of a hearing loss or tinnitus for many years after service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). VA had the veteran examined, in December 2007, and obtained a medical opinion. That opinion was to the effect that the veteran's hearing loss and tinnitus were not due to acoustic trauma in service, but were more likely due to post service noise exposure and the aging process. In as much as there is no competent medical support for the veteran's claim, the recent VA medical opinion and the passage of many years without medical complaint form a preponderance of evidence against the claim. As the preponderance of the evidence is against the claims for service connection for a hearing loss and tinnitus, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Arthritis of the Sacroiliac Joints There was no evidence of arthritis when the veteran was examined and accepted for service in September 1942. The examination report lists his musculoskeletal defects as none. There is no evidence of arthritic symptomatology for over 10 months after the veteran entered service. In late July 1943, however, he complained of joint pain. He said that it had bothered him for about a year. While working for a packing company, he began to notice aching in his fingers, knees, back, and left hip during fall and winter. Daily, for about 2 weeks, his knees and hands, middle phalangeal joints, swelled. He had intermittent pain and swelling in his left knee and fingers, as well as occasional pain in his knees, back and left hip. He had occasional pain until 3 weeks or a month earlier, involving the left knee, left hip, and middle finger joints. He had pain with drawing of the fingers and could not straighten them out. He felt drowsy and tired. July 1943 X-rays of the left knee and both hands showed no evidence of arthritis or other abnormality, but studies of the pelvis disclosed beginning arthritic changes in the left sacroiliac joint. The final diagnosis, in August 1943, was arthritis, chronic, non-suppurative, non-venereal, cause undetermined, involving the fingers of both hands, left knee, and left sacroiliac joint. "EPTI," (existed prior to induction). That diagnosis was reflected on the certificate of disability for discharge. In November 2007, the veteran was examined for VA by a physician's assistant. She produced detailed findings and a diagnosis of extensive degenerative joint disease involving the sacroiliac joints, bilateral knees, hips, shoulders, thoracic, lumbar, and cervical spine, and hands. She expressed the opinion that, "It is clear from the certificate of disability for discharge present in the service medical records that this condition existed prior to induction to service and was not aggravated by active service nor causally related to hospital bed rest and aspirin therapy. Current status of degenerative joint disease is reflective of the natural progression and is not caused by or a result of treatment for pre-existing condition during active service or aggravated by active duty military service." Discussion The veteran is presumed to have been in sound condition when examined and accepted for service, except for defects noted at the time of examination and acceptance for service, or where clear and unmistakable evidence demonstrates that the disease or injury existed before service. 38 U.S.C.A. § 1111 (West 2002). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and that it was not aggravated during service. The Federal Circuit has established that the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability existed prior to service and by clear and unmistakable evidence that the disability was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153 (West 2002). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). See also VAOPGCPREC 3-03 (July 16, 2003). There was no evidence of arthritis of the sacroiliac joints when the veteran was examined and accepted for service in September 1942. Beginning degenerative changes were seen in the left sacroiliac joint on X-rays 10 months later, in late July 1943. The only evidence of pre-existence is the veteran's report of some pre-service aching. This could be evidence of pre-existence, although lay recollections do not generally rise to the level of clear and unmistakable evidence. There is nothing in the service medical records that could be considered clear and unmistakable evidence that the disability did not increase in severity during service. The Board notes that the recent VA medical opinion included statements that the veteran's arthritis was not aggravated by service. However, the only support cited was the certificate of disability for discharge with its assertion that the condition existed prior to service. That is, the opinion simply restated the service medical records that were already of record without providing any analysis of medical findings. The medical opinion failed to identify any clear and unmistakable evidence that the disability did not increase in severity during service. Conclusion While X-ray studies during service disclosed arthritis in the left sacroiliac joint, X-rays of other joints were negative. Yet, there were positive findings involving other joints. There was enlargement of the phalageal first joints, shiny skin and some flexion deformity. The left knee was tender about the epicondyle and there was tenderness over the left hip. The military doctors diagnosed arthritis, but did not determine what kind it was, merely "cause undetermined." Without a clear diagnosis and understanding of the condition, its natural progress cannot be known. This means that there cannot be "clear and unmistakable evidence" that an increase in severity was within the natural progress of the condition. Arthritis of the sacroiliac joints was not found when the veteran was examined and accepted for service in September 1942. Beginning degenerative changes were seen in the left sacroiliac joint on X-rays 10 months later, in late July 1943. There is no clear and unmistakable evidence that the disability did not increase in severity during service. The government has not met its burden of proof to rebut the presumption of soundness. Consequently, service connection for arthritis of the sacroiliac joints must be granted. ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. Service connection for arthritis of the sacroiliac joints is granted. REMAND As discussed above, the nature of the arthritis during service was "cause undetermined," except for the degenerative changes found in the sacroiliacs. To properly adjudicate this claim, VA needs an opinion as to the nature of the arthritis found in service. Moreover, the recent VA opinion did not address the required evidentiary standard, which requires clear and unmistakable evidence. Accordingly, the issue of entitlement to service connection for arthritis of the fingers, hands, and knees is REMANDED to the AMC for the following action: 1. The veteran should be scheduled for a rheumatology examination. The claims folder should be made available to the examiner in conjunction with the examination. Any tests or studies needed to respond to the following questions should be done. The examiner should respond with a complete explanation. a. What residuals does the veteran at least as likely as not currently have from the arthritis - other than of the sacroiliac joint - noted in service? (but not confirmed by X-ray, see July 1943 X-ray report) A diagnosis for any residuals should be provided. b. Is there clear and unmistakable evidence that the arthritis noted in service existed before service? If so, what is that evidence? c. If there is clear and unmistakable evidence that the arthritis manifested in service existed before service, does the symptomatology noted in July 1943 at least as likely as not reflect an increase in severity during service. If so, what is that evidence? d. If there is clear and unmistakable evidence that the arthritis manifested in service existed before service, and the symptomatology noted in July 1943 reflects an increase in severity during service, is there clear and unmistakable evidence that the increased severity was within the natural progress of the disease? If so, what is that evidence? 2. Thereafter, the AMC should readjudicate this claim in light of any evidence added to the record. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs