Citation Nr: 1300241 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-25 457 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for muscle aches and joint pain, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran had active service from August 1989 to August 1992. He served in Saudi Arabia from January 7, 1991 to May 3, 1991 and was awarded the Southwest Asia Service Medal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision by the RO. In October 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder In December 2010 and May 2012, the Board remanded this matter to the RO for additional development. There was substantial compliance with the remand directives and the case has been returned to the Board. The Board notes that other issues were addressed in December 2010 and May 2012 decisions; however, the only issue remaining for consideration is as listed hereinabove. The Virtual VA eFolder has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's claimed muscle aches and joint pain is shown to be manifested by diagnosed bilateral knee and right ankle arthralgia/strain rather than an undiagnosed illness and is not due to an injury or another event or incident of the Veteran's active duty including his service in the Persian Gulf War. CONCLUSION OF LAW The Veteran's claimed muscle aches and joint pain disability is manifested by bilateral knee and right ankle arthralgia/strain that is not due to an undiagnosed illness or other disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in September 2005, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. In December 2006, the RO provided notice of how VA assigns disability ratings and effective dates. The claim was most recently readjudicated in the November 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, excerpts of service personnel records, and VA and private medical records. Information in the claims folder indicates that the Veteran applied for, but was denied Social Security disability benefits. The Board acknowledges that records were not obtained from the Social Security Administration. The Veteran, however, has not identified these records as relevant and there is otherwise no suggestion that such records would address the nature and etiology of any claimed muscle aches and joint pains. Accordingly, the Board declines to remand for these records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security Administration records only if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). The Veteran was provided VA examinations in January 2011 with addendum in April 2011, and in May 2012. The VA examinations reviewed the Veteran's medical history, recorded his current complaints and conducted an appropriate physical examination. The examinations were essentially responsive to the questions posed and are considered adequate. Additional examination is not needed. The Veteran was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159. Analysis In July 2005, the Veteran claimed service connection for muscle and joint aches and pain. In December 2006, the RO denied service connection for unspecified aches and pains of the muscles and joints. The Veteran disagreed with the decision and subsequently perfected this appeal. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may 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). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" includes an undiagnosed illness. Manifestations of undiagnosed illness may include muscle pain and joint pain. 38 C.F.R. § 3.317(a)(2), (b). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3), (4). Compensation shall not be paid under these provisions if there is (1) affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between a veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of a veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and, as such, is a Persian Gulf veteran. See 38 C.F.R. § 3.317(e). In December 2012, the representative argued that the Veteran met all criteria for service connection of an undiagnosed illness. In addressing this argument, the Board must initially consider whether the Veteran's claimed muscle and joint aches and pains is due to diagnosed disorder. During the January 2011 VA examination, the Veteran clarified that his complaint of aches and pains in his muscles and joints referred to problems he was having with his right ankle and both knees. In December 2010, the Board determined that new and material evidence had not been received to reopen the claim of service connection for a right ankle disorder. Significantly, by way of history, the Veteran reported injuring his right ankle and being treated in service and having broken his right ankle after service. Following examination in the January 2011, the VA examiner diagnosed bilateral knee and right ankle arthralgia/strain. An April 2011 VA addendum indicated that x-ray studies showed a curvilinear defect of the left patella and a bipartite patella of the right knee joint. An x-ray study also showed focal cortical thickening of the distal lateral cortex of the right tibia. The Veteran most recently underwent a VA examination in May 2012. The VA examiner did not provide a diagnosis with regard to the right knee and indicated that the Veteran denied having a left knee condition. On review, there is evidence of bilateral knee and right ankle disability diagnosed during the period of the appeal. Generally, arthralgia/pain alone is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, the January 2011 VA examiner also diagnosed "strain," and actual pathological changes were identified by x-ray study. Despite the fact that the May 2012 examiner did not provide a specific diagnosis, she provided an opinion as to whether the right knee condition was not related to service and added that congenital defects were suggested. Moreover, the Veteran earlier had reported having a history of a right ankle fracture after service consistent with the identified x-ray changes. Under these circumstances, and for purposes of this decision, the Board finds that, because the evidence establishes the presence of diagnosed bilateral knee and right ankle disability, the regulations dealing with undiagnosed illness are not for application in this case. See 38 C.F.R. § 3.317. Having found evidence of a currently diagnosed disability, the Board also will consider whether current condition is related to the Veteran's active service or events therein. At the hearing, the Veteran testified that, during service, he "wasn't big on complaining about aches and pains." See the hearing transcript, page 24. This arguably suggests that he developed the claimed aches and pains while on active duty. The service treatment records in this regard do show that, in March 1990, the Veteran was seen with complaints of "pain in both lower leg[s] and feet" for three weeks. He reported having pain that increased with exertion such as running and jumping and that the pain in the feet was mostly in the arch area. Objectively, there was noted to be no edema, erythema or tenderness to touch, and the range of motion was noted to be full. The assessment was that of rule out strain, Achilles tendon. A subsequent note noted that he had moderate pes planus and hallux valgus, bilateral. No complaints related to the knees or right ankle were documented during active duty. In connection with a private psychiatric assessment in August 2005, the Veteran reported believing that he suffered from Persian Gulf Syndrome and described having symptoms including joint pain and swelling. He also reported having leg pain. At the VA examination in January 2011, the Veteran reported having bilateral knee pain for 15 years. No specific injury was identified, and he was noted not to be receiving any current treatment. Following examination, the diagnosis was that of bilateral knee and right ankle arthralgia/strain. The examiner opined that the Veteran's bilateral knee condition was not caused by military service. In support of this opinion, the VA examiner stated that the Veteran did not complain of having bilateral knee or right ankle pain during service. Following x-ray studies, these diagnoses were added: curvilinear defect, left patella and bipartite patella, right knee joint. Focal cortical thickening of the distal lateral cortex of the right tibia was also noted. On VA examination in May 2012, the Veteran reported that his right knee condition began in 1998. He denied having any accidents or injuries, but stated that his right knee would swell and throb, causing pain that would come and go. It also locked and gave out on him. He reported having continued issues since 1998 that came and went. The Veteran denied having a left knee condition. Following the examination and review of prior x-ray studies, the examiner stated the following: The etiology of the [V]eteran's knee conditions [was] unknown. Congenital defects [were] suggested as the laxity of the knee [was] bilateral and in both the anterior and posterior ligaments of the knees. An injury was suggested in the radiographs however an injury was not disclosed by the veteran during the history. It [was] less likely as not that the [V]eteran's right knee condition [was] related to military service. The rationale: there [was] no indication in the [service treatment records] of a knee condition and the [V]eteran's reported date of symptoms began a number of years after service. Therefore, the right knee condition [was] due to some other etiology outside of military service. The [V]eteran [denied] an active left knee condition. As shown, the VA opinions are against the Veteran's claim. The Board notes that the rationale for these opinions, at least in part, is based on the absence of in-service complaints or treatment. Although service records do not specifically document complaints or treatment for knee or right ankle problems, the Veteran is competent to report that he experienced knee pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that "competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). To the extent that the Veteran is suggesting that his knee or right ankle pain may have begun during service, on review, his lay assertions overall are found to be inconsistent and insufficient for the purposes of establishing a continuity of symptomatology extending back to the time he was in service. In making this determination, the Board is not relying solely on the absence of service records showing complaints or findings related to either knee. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical evidence is not an absolute bar to a veteran's ability to prove his claim of entitlement to disability benefits). While the Veteran's testimony suggested that his aches and pains beginning during service, his subsequent statements identify the onset of his knee and right ankle pain as being many years after service. For example, on VA examination in 2011, he reported a 15 year history of knee pain, which would date the onset to approximately 1996. On examination in 2012, he reported having had knee pain since 1998. Additionally, while the Veteran reported having bilateral knee pain in 2011, he denied having left knee problems in 2012. The Veteran's own statements are inconsistent and do not support a finding of in-service onset. The Board further notes that despite having treatment for multiple conditions in the years after service, actual complaints referable to either knee were not reported until many years after service discharge. This also weighs against a finding of in-service onset. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Considering the Board's determination regarding credibility, the VA examinations are considered probative. The record does not contain competent and credible evidence to the contrary. On review, the preponderance of the evidence is against finding that the Veteran's diagnosed bilateral knee and right ankle arthralgia/strain, claimed as muscle aches and joint pain, is related to active military service or events therein. Thus, the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. There is no evidence of knee or right ankle arthritis and consideration of service connection on a presumptive basis as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309(a) (2012). ORDER Service connection for muscle aches and joint pain, to include as due to an undiagnosed illness, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs