Citation Nr: 1007277 Decision Date: 02/26/10 Archive Date: 07/08/10 Citation Nr: 1007277 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-10 168 ) DATE FEB 26 2010 ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for rheumatoid arthritis. REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney at Law ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from May 28, 1974 to September 27, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In December 2007, the Board issued decision which denied the Appellant's claim herein. Thereafter, the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2009, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order remanding this case for compliance with the Joint Motion. The appeal is remanded to the RO. VA will notify the appellant if further action is required. ORDER TO VACATE VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the appellant or her representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2009). Here, based on the Joint Motion, the Court remanded for additional development the Board's December 2007 decision addressing the issue of service connection for rheumatoid arthritis. Accordingly, in order to prevent prejudice to the appellant, the December 2007 decision of the Board must be vacated, and a new decision on this issue will be entered as if the December 2007 decision by the Board had never been issued. REMAND The appellant is seeking service connection for rheumatoid arthritis. Based upon the Court Order in August 2009, the Board finds there is a further duty to assist the appellant with her claim herein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). In a March 2004 statement, the appellant indicated that she has been receiving benefits from the Social Security Administration (SSA) since 1982. The Court has held that where there has been a determination that the Veteran is entitled to SSA benefits, the records concerning that decision are needed by the VA for evaluation of pending claims, and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Under the circumstances of this case, an attempt should be made by the RO, with the assistance of the appellant, to obtain these records. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Court in McClendon observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Historically, the appellant served on ACDUTRA from May 28, 1974 to September 27, 1974. A review of her service treatment records from this period of service failed to reveal any complaints of or treatment for rheumatoid arthritis. Her March 1974 enlistment examination noted essentially normal findings throughout. A July 1974 examination for the purpose of becoming a food handler also noted normal findings throughout. An August 1974 treatment report noted that the appellant received an ace bandage as treatment for a "twisted wrist". No follow-up treatment for this condition was indicated. A July 1975 private treatment report noted the appellant's complaints of lower abdominal pain. Physical examination revealed the extremities to be without any edema. A September 1975 food handler's examination report noted that the appellant denied being treated by a physician for any medical problems. A December 1975 treatment report noted the appellant's complaints of right-sided mandibular pain and an inability to open her mouth completely for the past month. The report stated that she had no history of rheumatoid arthritis. A subsequent service treatment record, dated in June 1976, noted that the appellant was being treated for arthritis. A September 1976 food handler's examination report noted that the appellant was under a physician's care for arthritis. An April 1977 private treatment report noted the appellant's history of having been diagnosed with rheumatoid arthritis two years earlier. The report also noted that the appellant's history began with temporal mandibular joint discomfort which preceded the diagnoses of rheumatoid arthritis by about a year. X-ray examination of the hands and feet, performed in April 1977, revealed characteristics of rheumatoid arthritis disease. A May 1977 private treatment report noted that the appellant had been diagnosed with rheumatoid arthritis in March 1976. The report noted that her initial complaints at that time consisted of soreness in the right temporomandibular joint, which later developed into left forearm pain. A private treatment report, dated in September 1977, noted that the appellant had been diagnosed with rheumatoid arthritis in 1975, and that she was being hospitalized for an acute flare up of that condition. More recently, in October 2000, the appellant underwent a private rheumatological evaluation. The report of this evaluation concluded with diagnoses of rheumatoid arthritis affecting multiple joints with multiple deformities and limitations with increased activity of disease; significant degenerative osteoarthritis of both wrists; significant osteoarthritis of both elbows; and osteoarthritis of both knees. A May 2004 statement from the appellant noted that she had originally been diagnosed with rheumatoid arthritis in November or December 1975. It also noted that she has had three joint replacement surgeries since that time, including the left elbow, right wrist, and left great toe. A May 2004 lay statement from G.F. indicated that he met the appellant in 1976, and that he became aware that the appellant had rheumatoid arthritis shortly thereafter. A second lay statement, dated in May 2004, and received from C.D., noted that he had met the appellant in 1975, and that she had complained of arthritis in her hands at that time. A December 2004 opinion letter was received from A. Morton, D.O. In the letter, Dr. Morton stated that it is possible that the appellant's complaints of wrist pain in 1974 is related to her subsequent diagnosis of rheumatoid arthritis. Dr. Morton also noted that there is no objective way to confirm that, as no mention was made as to whether or not there was synovitis or swelling of the wrist at that time. He then stated, "I am not able to either confirm or deny that the complaint of wrist pain is related to her rheumatoid arthritis, but the possibility that it is, is very possible." In May 2005, a personal hearing was conducted before the RO. At the hearing, the appellant testified that prior to her military service she was very active physically. She indicated that she started have difficulty sleeping and pain in her right Achilles heel during basic training. She testified that her right heel would be very stiff in the morning and at night. She could not recall an inservice injury to her wrist. Following her discharge from the service, she testified that she was first diagnosed with rheumatoid arthritis in October 1974. Pursuant to the Joint Motion, the RO should schedule the appellant for a VA examination to address the etiology of her current rheumatoid arthritis. Accordingly, the case is remanded for the following action: 1. The RO must request all materials, to include medical records, regarding the appellant's award of disability benefits from SSA, together with its decision awarding the appellant disability benefits around 1982. These records must be associated with the claims file. If these records are not available, a note to that effect must be included in the appellant's claims folder. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The appellant must then be given an opportunity to respond. 2. Thereafter, the RO must afford the appellant the appropriate VA examination(s) to determine the etiology of her current rheumatoid arthritis. A synopsis of the appellant's medical history has been provided in this remand; however, a complete review of the appellant's claims folders by the examiner in conjunction with the examination is required. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and post service treatment records, the examiner must provide an opinion as to whether the appellant's current rheumatoid arthritis was caused by or aggravated by her military service, including consideration of her August 1974 treatment for a "twisted wrist." A complete rationale for all opinions must be provided. The report prepared must be typed. 3. The RO must notify the appellant that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the appellant does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must then re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and her representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007). Citation Nr: 0738513 Decision Date: 12/07/07 Archive Date: 12/13/07 DOCKET NO. 05-10 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for rheumatoid arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from May 28, 1974 to September 27, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT The appellant's current rheumatoid arthritis is not shown by the medical evidence of record to be related to her military service. CONCLUSION OF LAW Rheumatoid arthritis was not incurred in or aggravated by the appellant's military service. 38 U.S.C.A. §§ 101(24), 106, 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the instant case, the RO's April 2004 letter advised the appellant of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re- adjudication of the claim). Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained all of the appellant's service medical records, as well as her identified VA medical treatment records and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also does not find that a VA examination is necessary in this matter. There is no evidence of rheumatoid arthritis during the appellant's military service, and no competent evidence linking her current condition to her military service. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant is seeking entitlement to service connection for rheumatoid arthritis. Rheumatoid arthritis is a thickening of articular soft tissue. Zevalkink v. Brown, 6 Vet. App. 483, 494 (1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, 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). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2007). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(3) (2007). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106. Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). However, presumptive periods do not apply to periods of ACDUTRA or inactive duty for training (INACDUTRA) if during a period of ACDUTRA, the appellant was not disabled from a disease or injury incurred in or aggravated in the line of duty. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In the instant case, service connection is not in effect for any disorder. Moreover, as the appellant's rheumatoid arthritis is in the nature of a disease rather than an injury, there is no basis upon which to grant service connection for this disorder in association with a period of inactive duty for training. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Historically, the appellant served on ACDUTRA from May 28, 1974 to September 27, 1974. A review of her service medical records from this period of service failed to reveal any complaints of or treatment for rheumatoid arthritis. Her enlistment examination, performed in March 1974, noted essentially normal findings throughout. A subsequent examination for the purpose of becoming a food handler, performed in July 1974, noted normal findings throughout. A treatment report, dated in August 1974, noted that the appellant received an ace bandage as treatment for a twisted wrist. No follow-up treatment for this condition was indicated. A private treatment report, dated in July 1975, noted the appellant's complaints of lower abdominal pain. Physical examination revealed the extremities to be without any edema. A food handler's examination report, dated in September 1975, noted that the appellant denied being treated by a physician for any medical problems. A treatment report, dated in December 1975, noted the appellant's complaint of right-sided mandibular pain and an inability to open her mouth completely for the past month. The report stated that she had no history of rheumatoid arthritis. A subsequent service medical record, dated in June 1976, noted that the appellant was being treated for arthritis. A food handler's examination report, performed in September 1976, noted that the appellant was under a physician's care for arthritis. A private treatment report, dated in April 1977, noted the appellant's history of having been diagnosed with rheumatoid arthritis two years earlier. The report also noted that the appellant's history began with temporal mandibular joint discomfort which preceded the diagnoses of rheumatoid arthritis by about a year. X-ray examination of the hands and feet, performed in April 1977, revealed characteristics of rheumatoid arthritis disease. A private treatment report, dated in May 1977, noted that the appellant had been diagnosed with rheumatoid arthritis in March 1976. The report noted that her initial complaints at that time consisted of soreness in the right temporomandibular joint, which later developed into left forearm pain. A private treatment report, dated in September 1977, noted that the appellant had been diagnosed with rheumatoid arthritis in 1975, and that she was being hospitalized for an acute flare up of that condition. More recently, in October 2000, the appellant underwent a private rheumatological evaluation. The report of this evaluation concluded with diagnoses of rheumatoid arthritis affecting multiple joints with multiple deformities and limitations with increased activity of disease; significant degenerative osteoarthritis of both wrists; significant osteoarthritis of both elbows; and osteoarthritis of both knees. A statement from the appellant, dated in May 2004, noted that she had been originally been diagnosed with rheumatoid arthritis in November or December 1975. It also noted that she has had three joint replacement surgeries since that time, including the left elbow, right wrist, and left great toe. A lay statement, dated in May 2004, was received from G.F. In his statement, G.F. indicated that he met the appellant in 1976, and that he became aware that the appellant had rheumatoid arthritis shortly thereafter. A second lay statement, dated in May 2004, and received from C.D., noted that he had met the appellant in 1975, and that she had complained of arthritis in her hands at that time. An opinion letter, dated in December 2004, was received from A. Morton, D.O. In the letter, Dr. Morton stated that it is possible that the appellant's complaint of wrist pain in 1974 is related to her subsequent diagnosis of rheumatoid arthritis. Dr. Morton also noted that there is no objective way to confirm that, as no mention was made as to whether or not there was synovitis or swelling of the wrist at that time. He then stated, "I am not able to either confirm or deny that the complaint of wrist pain is related to her rheumatoid arthritis, but the possibility that it is, is very possible." In May 2005, a personal hearing was conducted before the RO. At the hearing, the appellant testified that prior to her military service she was very active physically. She indicated that she started have difficulty sleeping and pain in her right Achilles heel during basic training. She testified that her right heel would be very stiff in the morning and at night. She could not recall an inservice injury to her wrist. Following her discharge from the service, she testified that she was first diagnosed with rheumatoid arthritis in October 1974. After reviewing the appellant's claims folder, the Board finds that there are no findings of a rheumatoid arthritis in the appellant's service medical records and nothing to relate the appellant's current rheumatoid arthritis to the appellant's military service. Thus, the Board concludes that service connection is not warranted for rheumatoid arthritis. In making this determination, the Board notes that the opinion offered herein by Dr. Morton is too speculative and inconclusive to be of any probative value in this matter. As noted above, Dr. Morton states that he is "not able to either confirm or deny that the complaint of wrist pain [during her period of ACDUTRA] is related to her rheumatoid arthritis, but the possibility that it is, is very possible." Inasmuch as this opinion is couched in terms of mere possibility, it is simply pure speculation, and insufficient to establish entitlement to the benefit sought. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that physician's statement that the appellant may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the appellant's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical evidence which merely indicated that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that appellant's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative). As noted above, a December 1975 treatment report stated that the appellant had "no history of rheumatoid arthritis." Moreover, an April 1977 treatment report indicates that the appellant's history of rheumatoid arthritis began with temporal mandible joint discomfort, which the record first noted as having occurred in December 1975. The Board has considered the appellant's assertions that she has rheumatoid arthritis due to her military service but such assertions are afforded no probative weight in the absence of evidence that the appellant has the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Put simply, the evidence does not establish that the appellant had rheumatoid arthritis during her military service, or that her current rheumatoid arthritis is otherwise related to her military service. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Service connection for rheumatoid arthritis is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs