Citation Nr: 1300679 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-18 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral hands. 2. Entitlement to service connection for arthritis of multiple joints, with the exception of the bilateral hands. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2009 the Veteran testified at a hearing held at the RO before a Decision Review Officer (DRO). This appeal was previously before the Board in September 2011. The Board remanded the claim so that any additional treatment records could be requested and the Veteran could be scheduled for a VA examination. The case has now been returned to the Board for further appellate consideration. It is noted that the Veteran's original claim sought service connection generally for arthritis of all of his joints. Because the Veteran has received a separate diagnosis in service for arthritis of the hands, the claim has been recharacterized into two separate issues: arthritis of multiple joints, with the exception of the hands, and arthritis of the hands. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran currently has arthritis of the bilateral hands which became manifest during active duty service. 2. The Veteran's multiple joint pain, to include psoriatic arthritis, has not been causally or etiologically linked to service by competent evidence, and there is no evidence showing manifestations of arthritis to a degree of 10 percent or more within one year of discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of the bilateral are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for arthritis of multiple joints, with the exception of the bilateral hands, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159 (2012). In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in December 2006 and May 2007 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording VA examinations. Currently, there is no indication that scheduling further examinations or attempting to secure additional records would afford VA any additional relevant evidence. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The RO has attempted to obtain the Veteran's complete service treatment records, but was able to acquire only partial records for the Veteran. In August 2007 the RO prepared a memorandum, the subject of which was a formal finding on the unavailability of the service treatment records. In the August 2007 rating decision and November 2007 statement of the case, the RO informed the Veteran that they had been so far unsuccessful in acquiring his complete service treatment records. At the January 2009 DRO hearing, the Veteran brought in and submitted service treatment records relating to his current claim. VA has a heightened duty to assist the Veteran in developing his claim since some of his service treatment records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). In this case, the Veteran has provided to VA service treatment records that are relevant to the issue on appeal and are therefore deemed sufficient for adjudication of the claim at this time. In reaching its determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, private treatment records, and a VA examination report. The record reflects that, pursuant to the September 2011 remand, in October 2011 the AMC requested that the West Haven VA Medical Center (VAMC) provide the Veteran with an examination. In November 2011 the New Haven VAMC indicated that they had informed the Veteran through more than one written letter and phone calls, but that the Veteran had failed to report for his examination. The AMC attempted four times to call the Veteran regarding the examination, but were not able to reach him, and were never contacted by him in response. None of VA's letters to the Veteran have been returned as undeliverable, and the current address of record is that which was provided to VA by the Veteran's representative in July 2008 and appears to be current and correct. There is no evidence of record indicating that the Veteran requested that the examination be rescheduled or that he provided good cause for his failure to report. See 38 C.F.R. § 3.655 (2012). In order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street, and if a veteran wishes help, he/she cannot passively wait for it in those circumstances where he/she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993). In light of the above, the Board finds that the RO/AMC has complied with the September 2011 remand instructions to the extent possible, and no further action in this regard is warranted. Because the Veteran failed to report to his VA examination, the claim is being evaluated on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that 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). Moreover, where a veteran served continuously for 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 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A Veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b). In claims for VA benefits, VA will 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran contends that he has arthritis which first manifested during his active duty service. He explained in a January 2009 DRO hearing that he first felt the symptoms of joint pains while stationed in Twentynine Palms, California in November 2003. The Veteran stated that he had increased joint pain while serving in Kuwait and Iraq, and that at some point during his service he was informed by a doctor that he had joint damage and arthritis in his hands and that X-rays were taken. He described the heavy lifting he was required to do in the service and suggested that this could be the cause of his arthritis today. He also reported that his joint pain now affects his fingers, neck, spine, knees, and hips. The Veteran submitted a copy of his service treatment records at the January 2009 DRO hearing. These records show that the Veteran has a history of joint pain in his back and hands. In September 2003 the Veteran was treated for injuries relating to a fall to his tailbone that occurred while snowboarding 6 months previously. The Veteran reported that since his fall he had been experiencing a tingling sensation in both legs that radiates to his left leg. The Veteran was diagnosed with mechanical low back pain (MLBP). November 2003, December 2003, and January 2004 the Veteran was placed on light duty due to MLBP. In January 2004 the Veteran complained of pain in his lower back and hips, and was again diagnosed with MLBP. In March 2004 he reported that his left index finger had been swollen to varying degrees since December 2003. An April 2004 service treatment record indicated that the Veteran had mild arthritis in his hands, including stiffness and pain in the proximal interphalangeal (PIP) joint of the second digit on his left hand and the PIP joints of the first and fourth digits of his right hand. The report indicated that X-rays and a joint aspiration test had been completed. In a September 2004 Post-Deployment Health Assessment completed by the Veteran, he reported having "swollen, stiff or painful joints" during his deployment to Iraq from February 2004 to September 2004. The record includes private treatment records from the Veteran's private physician in Bedford, Massachusetts. In August 2005 the physician examined the Veteran's joints and noted problems in four of the joints of his fingers, hips, shoulders, and back. The Veteran reported to her that his pain began in his lateral and posterior hips in 2003, followed by swelling in his finger. He reported having been previously diagnosed with arthritis. A physician's note also indicates that X-rays showed sclerosis around the sacroiliac joint. In a letter from September 2005, the physician wrote that the Veteran's examination showed unrestricted range of motion in the neck, wrists, back, and hips, and that some thickening was noticeable on the right wrist. The examiner found bony enlargements on the left second PIP joint, tenderness on the left third metacarpophalangeal (MCP) joint, thickening and tenderness on the right fourth PIP joint, and thickening on the left second metatarsophalangeal (MTP) joint. The examiner also noted that the Veteran had previously been diagnosed with possible rheumatoid arthritis and that he had psoriasis as a child. The physician's September 2005 treatment record notes reports of pain in the Veteran's shoulders, elbows, right fourth PIP joint, and left fifth MCP joint. The physician diagnosed the Veteran with psoriatic arthritis. In a letter from October 2006, the private physician indicated that the Veteran had been reporting increased pain in his wrists and knees with some swelling in his joints and noted that physical examination had revealed swelling of the right second PIP joint. Treatment notes from October 2006 show that the examiner noted reports of pain in the shoulders, elbows, wrists, and right second PIP joint and provided a diagnosis of psoriatic arthritis. The record also contains a record from a private health provider which indicates that in April 2007, following his move to a new home in Connecticut, he was referred to a local provider for treatment of psoriatic arthritis. In June 2007 the Veteran was afforded a VA examination in which he reported that he had psoriasis as a child, but was asymptomatic his entire life and required no additional treatment. He stated that his rheumatologist had been unable to diagnose the etiology of his multiple joint pain, but had said that it was likely a form of arthritis. He further stated that in Iraq he had experienced multiple joint pain, including pain in his back, hip, knees, ankles, feet, shoulders, and spine, and that in cold weather his stiffness and pain increase. His pain was relieved with heat and anti-inflammatory medication. He reported that he was limited at work by not being able to be on his feet all day. He denied having any functional limitation during flare-ups, but said that driving was difficult because it caused him pain to turn his head. The Veteran stated that his back first began to bother him while he was in Iraq and could not remember any particular injury, other than the stress of carrying heavy equipment. He also stated that the pain's onset began just before deployment to Iraq, and that the pain is sharp and constant. The examiner observed that the Veteran had a normal gait and no functional limitations on standing or walking. The Veteran also discussed pain in his ankles and knees and how they cause him problems after prolonged standing. The examiner found no observable deformity of the Veteran's joints and performed range of motion tests on all of the Veteran's major joints. He found largely normal range of motion in the Veteran's joints, but the Veteran reported that all movement in his ankles, shoulders, and knees was painful. The examiner ultimately opined that the Veteran had mild to moderate function limitation from multiple nonspecified joint pain, but further stated that he was unable to state what the etiology of the joint pain was. Analysis: Arthritis of the Bilateral Hands The Board finds that the current evidence of record is sufficient to establish that the Veteran currently has arthritis of the bilateral hands which likely became manifest during active duty service. Although the June 2007 VA examiner was unable to provide a diagnosis for the Veteran's joint pain, there is sufficient other medical evidence of record to establish that the Veteran's arthritis of the bilateral hands had its onset during his active service and was again diagnosed based on objective medical findings soon after the Veteran's separation from service and again during the course of the current appeal. In April 2004, during the Veteran's deployment in Iraq, he was diagnosed with mild arthritis in his hands. Although the X-ray taken at that time is not of record, the service treatment record references an X-ray having been taken before the diagnosis was provided, and the Veteran stated at his DRO hearing that he remembered X-rays being done while he was serving in Iraq. The Veteran's service treatment records also reference specific observable symptoms in the Veteran's hands, including swelling over the left index finger and right thumb joints. The Veteran has provided private treatment records which also diagnose him with a type of arthritis, psoriatic arthritis, in September 2005, just 10 months after his separation from service, and again October 2006, during the course of this appeal. Both of these records also include reference to specific observable symptoms of a similar type to those found earlier, including stiffness and tenderness in the joints of the fingers. While the private physician did not comment on the etiology of the Veteran's arthritis beyond its likeliness of being psoriatic arthritis, or its relationship to service, the physician is a competent medical professional who has not disputed the Veteran's assertions that the pain had its onset during active duty service nor has she indicated that the arthritis had its actual onset prior to service or after service. Furthermore, the Veteran has provided competent and credible evidence, through lay statements submitted to VA, DRO hearing testimony, and the September 2004 Post-Deployment Health Assessment, that he has had a continuity of symptomatology since the time of his active duty service, and these assertions are consistent with the medical opinion of record. See Charles v. Principi, 16 Vet. App. 370 (2002). It is the Board's finding that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's current arthritis of the hands is the same disability that he first experienced during his active duty service. In light of the totality of the evidence of record and after resolving all doubt in the Veteran's favor, the Board finds that all of the requirements for establishing service connection are met. It is reasonably shown that the Veteran has arthritis of the bilateral hands which had its onset (was incurred) in service. Accordingly, service connection for arthritis in the bilateral hands is warranted. Analysis: Arthritis of Multiple Joints, with the Exception of the Bilateral Hands The Veteran is also claiming entitlement to service connection for general arthritis in the entire body. In the January 2009 DRO hearing the Veteran specified that he has experienced joint pain in his shoulders, spine, and lower extremities. The Veteran's service treatment records include several complaints of pain in his back and hips following a snowboarding accident and a diagnosis of MLBP in September 2003 and January 2004. The records, however, provide no explanation of the cause of this pain other than the possible relationship to his earlier accident, and there is no diagnosis for arthritis in the back, hips, or lower extremities. After his service, the Veteran was diagnosed with psoriatic arthritis by his private physician. The diagnosing physician made a note that the Veteran had psoriasis as a child, but made no comment on whether this indicated that the Veteran's arthritis pre-existed his service. The examiner did not provide an etiology for the arthritis, a date of onset, or an opinion on its relationship to service. The physician's September 2005 and October 2006 letters did not specify finding any objective symptoms in the Veteran's joints other than in the joints of his hands and wrists. In order to clarify the Veteran's diagnosis and the extent of his disability, the RO afforded the Veteran a VA examination in June 2007, but the examiner found no objective observable symptoms of a disability and stated that he was unable to identify the etiology of the joint pain, providing only a diagnosis of multiple nonspecified joint pain. The examiner also noted that further testing should be performed in order to determine the cause of the Veteran's joint pain. This examination being insufficient to establish either a diagnosis or a nexus between the Veteran's disability and his service, in a September 2011 remand the Board requested that he be rescheduled for a new VA examination. The examination was to specifically identify whether the Veteran's condition pre-existed his service, pre-existed but was aggravated by his service, or was as likely as not related to his symptoms in service. Unfortunately, the Veteran did not appear for his examination. Therefore no further determination could be made regarding the diagnosis, cause, and relationship to service of the Veteran's joint pain, and the case must be decided solely on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). While the Veteran clearly had joint pain during service, his service treatment records do not provide a diagnosis of arthritis for any joints beyond the hands. The records also indicate that physical injuries, such as those incurred in a snowboarding accident, could have been the cause of some joint pain. Without a medical opinion to link the Veteran's current condition to the pain he experienced in service, the Board is unable to determine whether the Veteran's current condition results from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran's service treatment records do indicate that the Veteran had joint pain in service, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability (due to a disease or injury) for which service connection may be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001).. The Board acknowledges the Veteran's statements that he felt pain in his joints during and following service. The Board further recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive opinion on the etiology of joint pain, as such matter requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion that he had arthritis in his back, shoulders, hips, or lower extremities during service or that his current joint pain is related to an injury or disease that had its onset during service is not a competent medical opinion. As such, the medical findings and opinion of the VA examiner warrant greater probative weight than the Veteran's lay contentions. Furthermore, the Board has also considered whether service connection for arthritis is warranted on a presumptive basis. Arthritis shall be presumed to have been incurred in service when the Veteran has served continuously for 90 days or more during a period of war and the arthritis manifests to a degree of 10 percent or more within one year from termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Although the Veteran has reported feeling pain in his joints and has been diagnosed with psoriatic arthritis by his private physician, the VA examiner was not able to provide a diagnosis, and no testing has yet been performed that would determine the exact manifestations and extent of this joint pain that would allow for consideration of whether the presumption of 38 C.F.R. § 3.309 can be applied. Therefore, this presumption is inapplicable in the current case. As there is no competent evidence indicating that the Veteran developed arthritis or any other disability in his joints, with the exception of the bilateral hands, during or as a result of his service, the evidence is not in equipoise. Without competent and persuasive evidence indicating that the Veteran's joint pain is related to his active duty service or that arthritis manifested to a compensable degree in the first year after service, service connection is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran elected to not appear for a VA examination. The private opinion provides inadequate information to establish the type of arthritis that is present, if any. The opinions that are of record are inadequately supported by clinical findings so as to clearly identify a disease or injury entity. Furthermore, even if arthritis were not present, we are unable to conclude that he has an undiagnosed illness (Gulf War Syndrome) because clinical disease to include gout and sclerosis of the sacroiliac joint have been suggested. The duty to assist is not a one-way street or a blind alley. The VA is under an obligation to clearly identify disability and the underlying cause, the disease or injury. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for arthritis of the bilateral hands is granted. Entitlement to service connection for arthritis of multiple joints, with the exception of the bilateral hands, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs