Citation Nr: 1142002 Decision Date: 11/10/11 Archive Date: 11/21/11 DOCKET NO. 05-27 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis of the right knee with degenerative joint disease (DJD). 2. Entitlement to service connection for rheumatoid pulmonary nodules. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to October 1985, including service in Vietnam. He also serviced in the Army National Guard from April 1963 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO, in pertinent part, denied service connection for a right knee disability and for lung disease. Jurisdiction of this case was later transferred to the RO in Phoenix, Arizona. In February 2009, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. In November 2009, the Board remanded the claims to the RO, via the Appeals Management Center (AMC) for additional development. As a final preliminary matter, the Board notes that in a June 2009 rating decision, the RO denied the Veteran's application to reopen a previously denied claim for service connection for rheumatoid arthritis. As explained further below, in November 2010, a VA examiner opined that the Veteran's rheumatoid arthritis first became manifest in service. This opinion, which is the basis of the Board's decision granting service connection for right knee disability and lung disease, implicitly raises the issue of whether new and material has been received to reopen the claim for service connection for rheumatoid arthritis in general. Hence, this matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran had early manifestations of rheumatoid arthritis in service and has been diagnosed with rheumatoid arthritis of the right knee with DJD. 2. The Veteran had early manifestations of rheumatoid arthritis in service and has been diagnosed with rheumatoid pulmonary nodules. CONCLUSIONS OF LAW 1. Rheumatoid arthritis of the right knee with DJD was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). 2. Rheumatoid pulmonary nodules were incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, as the Board is granting the only remaining claims on appeal, for entitlement to service connection for a right knee disability and lung disease, there are no further VCAA duties in this case. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). The Board notes, however, that, during the February 2009 Travel Board hearing, the VLJ explained the evidence required to substantiate the claims for service connection and the reasons for the RO's denial. The VLJ also asked questions designed to elicit relevant information pertaining to the elements of a service connection claim. These actions supplemented VA's compliance with the VCAA and, to the extent that 38 C.F.R. § 3.103 (2011) was applicable to Board hearings in February 2009, complied with this regulation. See 76 Fed. Reg. 52572 (Aug. 23, 2011) (clarifying that 38 C.F.R. § 3.103 does not apply to Board hearings). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of 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 continuously 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis becomes manifest to a degree of at least 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such a disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). The Veteran has set forth several theories of entitlement. During the February 2009 Board hearing, he asserted that his right knee disability was secondary to his service-connected left knee disability. Specifically, he alleged that his left knee disability caused him to overcompensate with his right knee (transcript, pg. 18). He also asserted that his lung disease is due to asbestos exposure during service (transcript, pg. 23). Alternatively, in various subsequent statements, he has asserted that his right knee disability and lung disease are associated with rheumatoid arthritis and that rheumatoid arthritis first became manifest in service or within one year after he separated from service. As will be explained below, the Board is granting the Veteran's claims for service connection based on the determination that these disabilities are associated with rheumatoid arthritis, which first became manifest in service. Hence, the Board need not address the allegations that the Veteran's right knee disability is secondary to his service-connected left knee disability or that his lung disease is due to asbestos exposure. [Parenthetically, the Board notes that the evidence of record does not support these latter allegations.] During the February 2009 Board hearing, the Veteran testified that he was diagnosed with rheumatoid arthritis in 1987 after he slipped and twisted his ankle (transcript, pg. 8). A May 2001 private medical record from Florida North Chest Physicians also noted a past medical history of rheumatoid arthritis since 1987. The Board notes that the Veteran's service treatment records (STRs) do not show any treatment or diagnosis of rheumatoid arthritis, chronic right knee disability, or lung disease during service. A September 1965 record reflects the Veteran struck his knee (unclear whether the right or left knee) on a piece of metal in the engine room and there was slight swelling and tenderness. The impression was a bruise. In March 1979, it was noted that the Veteran had conjunctivitis and iritis. He was hospitalized in March and April 1979 and eventually diagnosed with bilateral uveitis of undetermined etiology. A May 1979 record notes that the Veteran had resolving uveitis. In February 1985, the Veteran complained of vision problems seeing lights at night and it was noted that he had had bilateral iritis since 1979. An August 1985 chest X-ray showed a pulmonary nodule, but no active disease. On the August 1985 separation report of medical examination, the Veteran's lower extremities and lungs were normal. On the corresponding report of medical history, the Veteran denied swollen or painful joints, shortness of breath, and trick or locked knee. The report of an April 1986 VA examination reflects that the Veteran's lungs were clear to auscultation and that he had a 23-year history of smoking one pack of cigarettes per day. X-rays taken on April 10 showed a 2 cm soft tissue nodule and what appeared to be pleural plaque along the right lateral chest wall, which the radiologist indicated could be an indication of asbestosis. The radiologist also indicated that since the nodule could represent a primary neoplasm, further investigation was warranted. X-rays taken on April 26 by a different radiologist failed to show any nodule. That radiologist stated that the nodule seen on April 10 could have been overlapping venous shadows as they entered the hilum. In addition, the Veteran reported left foot pain. X-rays showed early degenerative changes in the metatarsophalangeal joints in both of the Veteran's big toes and an ossified mass beneath the mid portion of the talus of the left foot. The VA examiner diagnosed the Veteran with left ankle arthritis. A May 2001 record from Dr. Wyzan, a private physician, indicates that the Veteran had pleural-related rheumatoid inflammation. A chest X-ray and CAT scan showed what appeared to be a fracture in one of the posterior right-sided ribs with some inflammation. It was noted that there was also a somewhat nodular appearing infiltrate in his left lower lobe, which was new, and did not appear to be a malignancy. Rather, the physician indicated that this was maybe rheumatoid nodular changes. A March 2008 VA examination noted that a past CT scan of the Veteran's lungs showed multiple rheumatoid nodules and pleural thickening, as well as several pulmonary nodules. It was noted that pulmonary and pleural abnormalities were common in patients with rheumatoid arthritis. The examiner opined that based on the objective evidence available and the severity of the Veteran's rheumatoid arthritis, the Veteran had lung disease associated with rheumatoid arthritis and there was no objective evidence of asbestosis or pulmonary disease caused by asbestos exposure. In November 2009, the Board remanded the claims to afford the Veteran another VA examination and opinion. Specifically, the Board pointed out that an April 1986 chest X-ray showed a nodule that was not seen on a follow-up X-ray, that another April 1986 X-ray showed early degenerative arthritic changes of the metatarsophalangeal joints of the first big toes, and that the April 1986 examiner diagnosed the Veteran with arthritis of the left ankle. The Board asked the examiner to render an opinion as to whether these findings were early manifestations of rheumatoid arthritis. The November 2010 VA examiner reviewed the Veteran's claims file, considered his medical history and assertions, and opined that it was likely that the Veteran had rheumatoid arthritis while in the military. In rendering this opinion, the examiner pointed to a number of problems the Veteran had during service which were likely precursors to the later diagnosis of rheumatoid arthritis. Specifically, the examiner pointed out that the Veteran was treated for iritis and uveitis during service, and that a pulmonary nodule was shown on X-ray, which the examiner noted were complications of rheumatoid arthritis. Furthermore, the examiner opined that the lung nodules and early arthritic findings of the feet and left ankle noted in April 1986 (after discharge) were also early manifestations of rheumatoid arthritis. The examiner opined that the Veteran's right knee condition was due to rheumatoid arthritis, although noting that there might be a minor component of osteoarthritis, and that the lung disease was also associated with rheumatoid arthritis. X-rays showed degenerative changes in both knees. In a June 2011 addendum, the examiner clarified that the condition of both knees was due to severe, crippling rheumatoid arthritis and that the Veteran's right knee was not secondary to his service-connected left knee. In this case, the November 2010 VA examiner has provided a medical opinion relating the Veteran's right knee disability and lung disease to rheumatoid arthritis, which first became manifest in service. The June 2010 VA examiner's opinion is both competent and probative in that it was based on a clinical examination and consideration of the Veteran's medical history and lay assertions. Furthermore, the examiner provided a detailed rationale for his opinion, which is supported by the evidence of record. The Board points out that VA is not free to ignore a medical opinion (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject a medical opinion based on its own medical judgment (see Obert v. Brown, Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)). In this case, the VA examiner's opinion is not contradicted by any other competent opinion of record and VA adjudicators are not permitted to substitute their own judgment on a medical matter. For these reasons, the Board finds that the weight of the evidence supports the conclusion that the Veteran's rheumatoid arthritis of the right knee with DJD and rheumatoid pulmonary nodules are related to service and that service connection must be granted. ORDER Entitlement to service connection for rheumatoid arthritis of the right knee with DJD is granted. Entitlement to service connection for rheumatoid pulmonary nodules is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs