Citation Nr: 0840468 Decision Date: 11/24/08 Archive Date: 12/03/08 DOCKET NO. 04-02 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of brucellosis. 2. Entitlement to service connection for a disability manifested by positive findings on X-rays of the lungs. 3. Entitlement to a disability manifested by bilateral shin splints and leg pain. 4. Entitlement to service connection for arthritis of the back. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from August 1951 to July 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was the subject of a December 2005 hearing before the undersigned Veterans Law Judge, and of a Board decision and remand dated in December 2005. In the decision portion of the Board's December 2005 adjudication, the Board denied the veteran's claims for entitlement to service connection for 1) disability manifested by bilateral shin splints and leg pain; 2) disability manifested by a spot on the lung; and 3) arthritis of the back. In a March 2008 decision, the Court of Appeals for Veterans Claims (Court) vacated the Board's December 2005 decision with respect to these three issues, and remanded the issues to the Board for further development and adjudication. Also in its December 2005 adjudication, the Board remanded the issue of entitlement to service connection for residuals of brucellosis to the RO for further development and adjudication. This issue is now once again before the Board. In September 2008, the RO received additional evidence from the veteran along with a waiver of the right to have the RO consider the newly submitted evidence. See 38 C.F.R. § 20.1304(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for 1) bilateral shin splints and leg pain, 2) a disability manifested by positive findings on X-rays of the veteran's lungs, and 3) arthritis of the back, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Competent medical evidence demonstrates that the veteran has current residuals of in-service brucellosis, diagnosed as longstanding arthralgias. CONCLUSION OF LAW Residuals of brucellosis, diagnosed as longstanding arthralgias, were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefined the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). As discussed in detail below, sufficient evidence is of record to grant the matter of entitlement to service connection for residuals of brucellosis. Therefore, no further notice or development is needed with respect to this matter. General Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(d). In order to prevail on the merits on the issue of service connection, there must be medical evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Analysis As noted above, the veteran had active service from August 1951 until July 1953. The great majority of the veteran's service treatment records have been lost or destroyed. The United States Court of Appeals for Veterans Claims (Court) has held that in cases such as this one, where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This increases the VA's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46, 51 (1996). The veteran reports that he was a cook while serving in Korea and reports exposure during that time to raw foods such as meats. His DD Form 214 indicates that his most significant assignment was that of an infantryman working with heavy mortar. His decorations include the Combat Infantryman Badge. The only service treatment record available indicates that the veteran was hospitalized for 9 days with pharyngitis in February 1952. A report of the veteran's July 1953 service separation examination reflects that clinical evaluation of the upper and lower extremities, and of the musculoskeletal system in general, was normal. With respect to the years shortly after service, a December 1954 private medical record of treatment indicates laboratory findings positive for or suggestive of brucella infection. Also of record is a private medical record of treatment in January 1957, including a diagnosis of possible brucellosis. In both private treatment records the veteran indicated that he hadn't felt well since approximately 1953, toward the end of his period of active service. At the January 1957 treatment, he reported getting "awfully hot" at night since August 1953. (Quotes in original treatment record.) The claims folder contains conflicting competent medical opinions regarding whether the veteran has current brucellosis residuals that are causally related to active duty. An October 2004 VA clinical record discussed the veteran's military history, which included a 6-month assignment as a cook. In that capacity, the veteran recalled cutting up different kinds of meats, including beef, pork and chicken. In an extensive write-up and analysis, the VA treating physician commented that brucellosis was generally contracted either through consumption of food products contaminated with brucella, inhalation of the bacteria or contact with the bacteria through cuts in the skin. Thus, in the VA staff physician's opinion, given the veteran's in- service occupation handling raw meat, such active duty put him at risk for contracting brucellosis. The VA physician further supported the veteran's brucellosis claim by pointing to positive serological findings in 1954 and 2003. Moreover, the VA treating physician downplayed the possibility that the veteran contracted brucellosis in his civilian work as a farmer. In this regard, it was noted that other members of the veteran's family, with exposure to the same livestock, had not contracted the disease. In a subsequent December 2004 fee-basis opinion, another physician concluded that the veteran did not contract brucellosis. He opined that the Serum Agglutination Test (SAT) performed in 1954 was very non-specific, and hence unreliable. He further asserted that the Enzyme Immunoassay Tests (EIA) conducted in 2002, 2003 and 2004 was a better test, but still was not very specific for brucellosis. The examiner further opined that the inconsistent test results, reflecting intermittent positive findings, were not logical and therefore suggested false positive readings. In addition to discrediting the positive test findings, the examiner in December 2004 provided an alternate diagnosis for the veteran's symptomatology. Specifically, it was stated that the presence of ANA and double stranded DNA serology made it more likely that the veteran had a connective tissue disease, which could cause false positive serology to the brucella. In October 2007, the veteran underwent a VA examination with the Chief of Medicine and Infectious Diseases at the VA Medical Center in Indianapolis, Indiana. The examiner's relevant credentials include both M.D. and Ph.D. degrees. He examined the veteran, reviewed the claims file in detail, and prepared a detailed report on his findings. He additionally provided clarifying medical opinions in February 2008 and September 2008, citing extensively to the medical evidence of record and the medical principles involved. As most clearly summarized in his September 2008 letter, he opined the it was more likely than not that the veteran was infected with brucella during his period of service in Korea, based on his exposure risks, symptomatology, and subsequent serology. He further opined that it was as likely as not that the brucella infection contributed to longstanding arthralgias, which would then be exacerbated by additional osteoarthritic changes. The October 2007 VA examiner's analysis is clearly based on the application of a high degree of medical expertise to complex subject matter, and a thorough examination of the veteran and review of all available information in the claims file. The Board can conceive of no further development that would cast his findings into substantial doubt. It is clear from the record that medical experts have disagreed based on the facts present in this case. However, the case is now extensively developed, and the competent medical evidence is at least in relative equipoise as to whether the veteran has current residuals of brucellosis incurred in active service, diagnosed as longstanding arthralgias. Accordingly, entitlement to service connection for residuals of brucellosis, diagnosed as longstanding arthralgias, is warranted. See 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for residuals of brucellosis, diagnosed as longstanding arthralgias, is granted. REMAND In its March 2008 decision in this case, the Court found that shin splints diagnosed in July 2002 are a current disability for purposes of adjudication of his current claim for entitlement to service connection for shin splints, even though shin splints were not found at a more recent VA examination. See McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007) (holding requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). Applying similar reasoning, the Court further found that the veteran has a current lung disability for purposes of adjudication of his claim for service connection for a disability manifested by positive findings on X-rays of the veteran's lungs. Id. Additionally, in its March 2008 decision the Court took note of a VA physician's finding in October 2004 that the veteran's current arthritis of the back was a clinical manifestation of chronic brucellosis. Similarly, the Board notes that the October 2007 VA examiner has posited a potential relationship between now-resolved brucellosis that was incurred in active service and additional subsequent osteoarthritic changes, although the causal nature of the relationship between the two is not clear from his opinion. In today's decision, the Board has granted entitlement to service connection for residuals of now-resolved brucellosis, diagnosed as longstanding arthralgias, based on the opinions of a VA examiner who is the Chief of Medicine and Infectious Disease at the VA Medical Center in Indianapolis, Indiana. A supplemental medical opinion from this physician as to whether now-resolved brucellosis or its current residuals has caused or aggravated the veteran's shin splints as diagnosed in July 2002, a disability manifested by positive findings on X-rays of the veteran's lungs, or arthritis of the back would be helpful in adjudication of the veteran's claims as remanded to the Board by the Court. See 38 U.S.C.A. § 5103A(d). Also, because the veteran is now service-connected for residuals of brucellosis, he should be afforded updated VCAA notice that includes the evidence necessary to substantiate a claim for disabilities claimed as secondary to now-service- connected residuals of brucellosis. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The veteran should also be provided an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issues of entitlement to service connection for 1) a disability manifested by bilateral shin splints and leg pain, 2) a disability manifested by positive findings on X-rays of the veteran's lungs, and 3) arthritis of the back, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159, Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and any other applicable legal precedent. The veteran must be apprised of what the evidence must show to support a claim for direct incurrence service connection and for secondary service connection, and the division of responsibility between him and VA in obtaining such evidence. The veteran should also be provided an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date, per Dingess. 2. Once all available medical records have been received, make arrangements to obtain a supplemental medical opinion in this appeal, if at all possible from the VA physician who conducted the veteran's October 2007 VA examination and provided supplemental opinions in February 2008 and September 2008. This physician's correspondence indicates that he is the Chief of Medicine and Infectious Diseases at the VA Medical Center in Indianapolis, Indiana. If the October 2007 VA examiner is not available, the RO should obtain a medical opinion from another physician competent in the field of infectious diseases. If the examiner determines that an examination of the veteran would be useful in rendering any of the requested medical opinions, such an examination should be scheduled. After a detailed review of the claims file, and, if deemed necessary, examination of the veteran, the physician is requested to provide medical opinions as to the following: a) Whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the bilateral shin splints and leg pains the veteran experienced in July 2002 were a manifestation of, caused by, or aggravated (a chronic worsening of underlying condition rather than temporary flare-up of symptoms) by service-connected residuals of brucellosis, or are otherwise related to any incident of service. b) Whether it is at least as likely as not (whether there is a 50 percent or greater probability) that any disability manifested by positive findings on X-rays of the veteran's lungs is a manifestation of, caused by, or aggravated (a chronic worsening of underlying condition rather than temporary flare-up of symptoms) by service-connected residuals of brucellosis, or is otherwise related to any incident of service. c) Whether it is at least as likely as not (whether there is a 50 percent or greater probability) that arthritis of the veteran's back is a manifestation of, caused by, or aggravated (a chronic worsening of underlying condition rather than temporary flare-up of symptoms) by service-connected residuals of brucellosis, or is otherwise related to any incident of service. The RO should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed, to include an extensive October 2004 medical opinion from a VA physician. If the VA examiner disagrees with this medical opinion in any manner material to the veteran's claims for service connection, he should explain the reason for his disagreement. The examiner is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. 3. Readjudicate the issues of entitlement to service connection for 1) a disability manifested by bilateral shin splints and leg pain, 2) a disability manifested by positive findings on X-rays of the lungs, and 3) arthritis of the back. Adjudication of the claims should include consideration on both a direct and secondary basis. If any benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC) and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) The appellant has the right to submit additional evidence and argument on the 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. 2008). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs