Citation Nr: 1127477	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  06-07 018	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee



THE ISSUE

Entitlement to service connection for arthritis.  



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel



INTRODUCTION

The Veteran had active service from March 1968 to March 1970.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision by the RO which, in part, denied service connection for arthritis.  The Board remanded the issue on appeal for additional development in April 2010.  


FINDING OF FACT

Arthritis was not present in service or until many years thereafter, and there is no competent medical evidence that any current arthritis is related to service or any incident therein.  


CONCLUSION OF LAW

The Veteran does not have arthritis due to disease or injury which was incurred in or aggravated by service nor may any current arthritis be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  

The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in February 2005.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  

With respect to the duty to assist in this case, the Veteran's service treatment records and VA and private medical records have been obtained and associated with the claims file.  The Veteran was examined by VA during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined.  

Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue addressed in this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

Service Connection:  In General

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  

A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997).  Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  Id.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  

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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  

Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis manifests to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009).  

Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period.  38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992).  A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis.  38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991).  

An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis.  A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993).  The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address."  Bielby v. Brown, 7 Vet. App. 260, 266 (1994).  

Factual Background & Analysis

In this case, the Veteran has made no specific contentions regarding his claim of service connection for arthritis other than he believes that service connection should be established for generalized arthritis.  The Veteran did not report any specific injury or treatment for any joint pains or arthritic condition in service nor do the service treatment records reflect any such complaints or findings of arthritis.  

On a Report of Medical History (RMH) at the time of his pre-induction examination in February 1968, the Veteran reported a history of rheumatic fever, swollen or painful joints, and arthritis or rheumatism, and indicated that he sprained his ankles and had occasional joint aches.  On examination, his upper and lower extremities, feet, spine and musculoskeletal systems were normal, and the examiner reported that there was "no arthritis."  The service treatment records showed no complaints, treatment, abnormalities, or diagnosis referable to any musculoskeletal injuries, joint pains or arthritis in service.  Additionally, the Veteran specifically denied any history of swollen or painful joints, arthritis or rheumatism, recurrent back pain, or any shoulder or knee problems on a RMH for separation from service in February 1970, and no pertinent abnormalities were noted on examination at that time.  

Private medical records showed that the Veteran was seen for multiple joint pains in June 1987.  At that time, he reported a one year history of soreness and stiffness of various joints, including his ankles, knees, elbows, wrists, and hands.  He denied any swelling, redness, or exquisitely painful joints, and no pertinent abnormalities were noted on examination.  The report indicated that an arthritis panel was pending and the diagnosis was probable arthritis.  Although a follow-up treatment note in July 1987 indicated that an arthritis panel was negative, the assessment was osteoarthritis.  The private medical reports showed occasional treatment for osteoarthritic pain on several occasions since 1987.  

VA records showed that the Veteran was treated for various maladies from January 2004 to the present.  Other than the Veteran's self-described history of multiple joint pains, the VA treatment records do not show any specific treatment, findings or opinion concerning the etiology of his arthritic pain.  

When examined by VA in May 2010, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and clinical findings.  On examination, the Veteran reported a history of bilateral knee and ankle pain and stiffness, and said that his symptoms began in 1979 or 1980.  X-ray studies revealed osteoarthritis of the knees and ankles and osteochondritis dessecans of the left ankle.  The examiner noted that the Veteran's symptoms of arthritic pain were not manifested until nine to ten years after service and opined that his arthritis was not related to service.  

The Board finds the VA opinion persuasive, as it was based on review of the claims file and examination of the Veteran, and included a discussion of the relevant facts.  The examiner offered a rational and plausible explanation for concluding that the Veteran's arthritis was not manifested until many years after service separation and, therefore, was not related to service.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Moreover, the Veteran has presented no medical evidence to dispute that opinion.  Thus, the most probative evidence of record consists of the VA medical opinion.  

While the Veteran may believe that his current arthritis is related to service, he has not presented any competent medical evidence to support that assertion.  Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  While the Veteran is competent to provide evidence of visible symptoms, he is not a medical professional competent to offer an opinion as to the nature or etiology of any claimed disability.  Savage v. Gober, 10 Vet. App. 488, 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (lay testimony is not competent to establish, and therefore not probative of, a medical nexus).  

Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  In this case, the issue does not involve a simple diagnosis and the Veteran is not competent to provide more than simple medical observations.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) see also Barr v. Nicholson, 21 Vet. App. 303 (2007).  

The fact that the record does not reflect any objective evidence of any complaints, treatment, or diagnosis referable to any joint pains or arthritic problems in service until more than 17 years after service, weighs against the finding of a nexus between any current disability and service.  Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) [it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints].  At this point it should be noted that while the Board indicated in the April 2010 remand that the Veteran reported a history of joint pain on a document apparently created at the time of his service separation examination, upon closer inspection of the service records, it appears the document was actually part of the Veteran's pre-induction examination report and not created his separation examination.  

As there is no evidence of a musculoskeletal injury or disease in service, no evidence or arthritis within one year of discharge from service or until many years after service, and no competent evidence that any current arthritis is related to service, the Board finds no basis for a favorable disposition of the Veteran's claim.  Accordingly, the appeal is denied.  

The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the Veteran's claim.  Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

Service connection for arthritis is denied.  




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs