Citation Nr: 1007648	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  05-07 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines


THE ISSUES

Entitlement to service connection for arthritis of the lumbar 
spine, shoulders, hips, knees, ankles, and feet, including as 
secondary to service-connected diabetes mellitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

M. McPhaull, Associate Counsel




INTRODUCTION

The appellant is a Veteran who retired in November 1982 after 
twenty years of active duty.  These matters are before the 
Board of Veterans' Appeals (Board) on appeal from April 2004 
and January 2005 rating decisions by the Manila, Philippines 
Department of Veterans Affairs (VA) Regional Office (RO).  In 
January 2008, the Veteran withdrew his request for a Central 
Office hearing scheduled in April 2008.  In March 2008, these 
matters were remanded for further development.


FINDINGS OF FACT

The Veteran's arthritis of the lumbar spine, shoulders, hips, 
knees, ankles, and feet was not manifested in service or in 
the first postservice year, and is not shown to be related to 
his service or to have been caused or aggravated by his 
service connected diabetes mellitus.


CONCLUSION OF LAW

Service connection for arthritis of the lumbar spine, 
shoulders, hips, knees, ankles, and feet is not warranted.  
38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist 
claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  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 VCAA 
notice 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; and (3) that the 
claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) 
(including as amended effective May 30, 2008, 73 Fed. Reg. 
23353 (Apr. 30, 2008)).  VCAA notice should be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Mayfield v. 
Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006).

Pursuant to the March 2008 Board remand, an April 2008 letter 
informed the Veteran of the evidence and information 
necessary to substantiate his claim for secondary service 
connection, the information required of him to enable VA to 
obtain evidence in support of his claim, the assistance that 
VA would provide to obtain evidence and information in 
support of his claim, and the evidence that he should submit 
if he did not desire VA to obtain such evidence on his 
behalf.  The letter also provided the Veteran notice 
regarding disability ratings and an effective date of award.  
(See Dingess v. Nicholson, 19 Vet. App. 473 (2006)).

The Veteran's service treatment records (STRs) are associated 
with his claims file, as are all other pertinent treatment 
records.  He has not identified any pertinent evidence that 
remains outstanding.  He was not afforded a VA examination.  
The Board finds that a VA examination (for a diagnosis/nexus 
opinion) is not necessary.  

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court 
explained its interpretation of 38 C.F.R. § 3.159(c)(4).  
This regulation provides that an examination or opinion is 
necessary if the evidence of record: (A) contains competent 
evidence that the claimant has a current disability, or 
persistent or recurrent symptoms of a disability; and (B) 
establishes that the Veteran suffered an event, injury, or 
disease in service; (C) indicates that the claimed disability 
or symptoms may be associated with the established event, 
injury, or disease in service, but (D) does not contain 
sufficient medical evidence for the Secretary to make a 
decision on the claim.  The Court noted that the third prong 
of 38 C.F.R. § 3.159(C)(4) is a low "threshold" standard.  
The above-listed factors as to when a VA examination for a 
nexus opinion is necessary are not shown, and even the "low 
threshold" standard for a nexus examination is not met.  
Specifically, there is no evidence that the claimed arthritis 
was manifested in service or might be related to the 
Veteran's service or to his service-connected diabetes 
mellitus.  Consequently, an examination for a medical nexus 
opinion is not necessary.  38 C.F.R. § 3.159(c)(4); Duenas v. 
Principi, 18 Vet. App. 512 (2004).  VA's duty to assist is 
met.  

Criteria, Evidence and Analysis

Initially, the Board notes all of the evidence in the 
Veteran's claims file, with an emphasis on the evidence 
relevant to this appeal, has been reviewed.  Although the 
Board has an obligation to provide reasons and bases 
supporting its decision, there is no need to discuss, in 
detail, every piece of evidence of record.  Gonzales v. West, 
218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must 
review the entire record, but does not have to discuss each 
piece of evidence).  Hence, the Board will summarize the 
relevant evidence where appropriate, and the analysis below 
will focus specifically on what the evidence shows, or fails 
to show, as to the claim.

Service connection may be granted for disability due to 
disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. 
§ 3.303.  Service connection may also be granted for any 
disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disability was incurred in service.  38 C.F.R. § 3.303(d).  

Certain chronic diseases (to include arthritis) may be 
service connected on a presumptive basis if manifested to a 
compensable degree in a specified period of time postservice 
(one year for arthritis).  38 U.S.C.A. §§ 1112, 1113, 1137; 
38 C.F.R. §§ 3.307, 3.309.  

Disability that is proximately due to or the result of a 
service-connected disease or injury shall [also] be service 
connected.  38 C.F.R. § 3.310(a).  

When all of the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or in 
relative equipoise, with the veteran prevailing in either 
event, or whether a fair preponderance of the evidence is 
against the claim, in which case the claim is denied.  
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran's STRs are silent for complaints, symptoms, or 
diagnosis of arthritis of the lumbar spine, shoulders, hips, 
knees, ankles, and feet.  On service retirement physical 
examination, the spine and upper and lower extremities were 
normal on clinical evaluation.  Service connection has been 
established for diabetes mellitus.

October 2002 to February 2009 VA treatment records include a 
May 2003 notation of degenerative arthritis of the lumbar 
spine.  A June 2007 VA aid and attendance examination report 
notes degenerative arthritis of the shoulders, hips, knees, 
feet and lumbar spine. 

Private records from 2002 to 2004 show the Veteran has 
degenerative arthritis of the lumbar spine and shoulders.

As there is no medical evidence of arthritis in service, and 
no competent (medical) evidence that the Veteran had 
degenerative changes of the lumbar spine, shoulders, hips, 
knees, ankles and feet prior to 2003, service connection for 
such disability on the basis that it became manifest in 
service and persisted, or on a presumptive basis (for 
arthritis as a chronic disease under 38 U.S.C.A. § 1112) is 
not warranted.

The Veteran may establish service connection for his 
arthritis of the lumbar spine, shoulders, hips, knees, ankles 
and feet, if there is competent evidence shows that shows 
such disability is related to an event, injury, or disease in 
service; however, there is no such evidence.  There is no 
medical opinion in the evidence of record that relates the 
Veteran's arthritis to his service, and no competent evidence 
(medical opinion, supporting textual evidence, e.g.) that 
even suggests that the Veteran's arthritis might somehow be 
directly related to his service/an event therein.  Notably, a 
lengthy interval of time between service and the initial 
postservice clinical manifestation of a disability for which 
service connection is sought (here some 21 years) is, of 
itself, a factor weighing against a finding of service 
connection.  See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. 
Cir. 2000).  

The Veteran has claimed that his arthritis is secondary to 
his service connected diabetes.  Three threshold requirements 
must be met to establish secondary service connection: There 
must be (1) Competent evidence (medical diagnosis) of current 
disability.  This requirement is met; as degenerative 
arthritis of the lumbar spine, shoulders, hips, knees, ankles 
and feet is diagnosed.  (2) A service-connected disability.  
This requirement is also met, as diabetes mellitus is service 
connected. (3) Competent evidence of a nexus between the 
service-connected disability and the disability for which 
secondary service connection is sought.  Here, there is no 
competent (medical) evidence of record that shows, or even 
suggests, that there is, or might be, a nexus between the 
Veteran's arthritis and his service-connected diabetes 
mellitus.  Because he is a layperson, the Veteran's own 
opinion in this matter is not competent (and probative) 
evidence in this matter.  Whether there is a nexus arthritis 
and diabetes mellitus is a medical question not capable of 
lay observation or opinion.  See Espiritu v. Derwinski, 2 
Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F. 
3d 1372 (Fed. Cir. 2007).  

Accordingly, the preponderance of the evidence is against the 
Veteran's claim.  Therefore, the benefit-of -the-doubt 
doctrine does not apply; the claim must be denied.  


ORDER

Service connection for arthritis of the lumbar spine, 
shoulders, hips, knees, ankles, and feet, including as 
secondary to service-connected diabetes mellitus is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs