Citation Nr: 1127935 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 08-22 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for arthritis, multiple joints. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from June 1979 to January 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was subsequently returned to the RO in Montgomery, Alabama. This case was previously before the Board in May 2010, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT Arthritis, in multiple joints, is not etiologically related to the Veteran's active service and was not present within one year of his separation from such service. CONCLUSION OF LAW Arthritis, in multiple joints, was not incurred in or aggravated by active service and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in April 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2007 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file and VA Medical Center and private treatment notes have been obtained. The Board notes that in the May 2010 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of his widespread joint pain. In June 2010, the Veteran failed to report for his scheduled VA examination without explanation. The Veteran was notified of his failure to report for his VA examination and its detrimental impact on the outcome of his claim in an April 2011 Supplemental Statement of the Case (SSOC). The Veteran has not requested that he be afforded another opportunity to report for a VA examination. Therefore, the Board finds that the development conducted in response to the Board's May 2010 remand is in substantial compliance with the Board's directive. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis A review of the Veteran's STRs shows that in November 1983, the Veteran complained of slight tenderness in the right side of his neck. He was diagnosed with neck strain at that time. In August 1984, the Veteran complained of pain in his right great toe; however, a diagnosis other than pain was not made at that time. In December 1984, the Veteran complained of leg and foot pain and it was noted that he specifically reported that his left leg hurt with exercise. However, a physical examination yielded normal findings and there was no diagnosis made at that time. The Veteran declined an examination for separation purposes prior to discharge. A review of the post-service medical evidence of record shows that the Veteran has received periodic treatment for various disabilities at the VA Medical Center since just after his separation from active service. In May 1986 and July 1986, the Veteran made complaints of low back pain. X-rays taken at those times revealed a normal lumbar spine and he was diagnosed with mechanical back sprain. In January 1987, the Veteran again complained of low back pain; however, the Veteran was not diagnosed with a disability other than pain. In April 1988, the Veteran complained of low back pain and knee pain; however, a physical examination revealed normal findings and there was no diagnosis of a back or knee disability made at that time. In June 1991, the Veteran complained of right-sided neck pain and was diagnosed with neck strain. In February 1992, the Veteran reported back, foot, and elbow pain. Upon physical examination there was no evidence of inflammation in any joint. The examiner diagnosed the Veteran with generalized arthralgias at that time. In July 1992, the Veteran was again seen for complaints of generalized arthralgia and the examiner indicated that the Veteran may have early rheumatoid arthritis. A blood test at that time revealed a positive rheumatoid factor (RF). In September 1992, the Veteran again complained of back pain and the examiner's assessment was arthralgias with questionable early rheumatoid arthritis v. degenerative joint disease. In a January 1996 treatment note, it was noted that the Veteran had a history of arthritis; however a review of the record does not show any X-ray evidence to confirm the diagnosis. In May of 1996, the Veteran complained of foot pain; however, the examiner noted that the etiology of the foot pain was unknown. In August 1996, X-rays taken of the Veteran's feet were negative. More recently, in December 2002, the Veteran's treatment provider noted that the generalized arthralgias may be related to rheumatoid arthritis. In May 2003, the Veteran had an antinuclear antibody factor (ANA) test completed to determine whether the Veteran had an autoimmune disorder. The ANA test was negative at that time. In September 2008, the Veteran was seen at the VA Medical Center rheumatology clinic for complaints of pain in the hands, feet, left shoulder, hips, and knees. At that time, the examiner noted that the Veteran may have osteoarthritis, but ordered several laboratory tests to try and narrow down the possible etiology of the Veteran's widespread joint pain. In October 2008, it was noted that both the Veteran's RF and cyclic citrullinated peptic antibody (CCP) tests were negative. However, it was noted that the Veteran was positive for hepatitis C. When the examiner reviewed the findings from the ordered laboratory tests, he opined that the Veteran's arthralgias and past positive RF were likely due to his active hepatitis C, as the Veteran was highly positive for hepatitis C virus replication. Since that time, the Veteran has received periodic treatment at the VA Medical Center for polyarthralgias and hepatitis C. The Board finds that there is no medical evidence of record linking the Veteran's current complaints of joint pain with his active service. In this regard, the Board notes that there are no treatment notes of record indicating that the Veteran had anything but acute and transitory musculoskeletal complaints in active service and there is no objective evidence of record indicating that the Veteran's current symptoms of joint pain are due to anything other than his nonservice-connected hepatitis C. While the Veteran might sincerely believe that his polyarthralgias are related to service, his lay opinion concerning this matter requiring medical expertise is of no probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board also notes that the Veteran has been diagnosed with polyarthralgias. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Additionally, there is no medical evidence supporting a finding that the Veteran has been diagnosed with arthritis in any joint, let alone within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for arthritis, multiple joints, is not warranted. ORDER Entitlement to service connection for arthritis, multiple joints, is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs