Citation Nr: 1302976 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 08-34 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for ankylosing spondylitis of the spine. 2. Entitlement to service connection for arthritis of the bilateral hips. 3. Entitlement to service connection for arthritis of the bilateral knees. 4. Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARINGS ON APPEAL Appellant and D.W. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from April 1981 to January 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which, inter alia, denied service connection for spondylitis of the spine, arthritis of the hips, arthritis of the knees, and a bilateral eye condition. As set forth above on the cover page of this decision, jurisdiction of the appellant's case is with the RO in Detroit, Michigan. In March 2010, the appellant testified before an acting Veterans Law Judge sitting at the Detroit RO. In July 2010, the Board remanded the matter for additional evidentiary development. In a December 2010 letter, the Board advised the appellant that he was entitled to an additional Board hearing as the acting Veterans Law Judge who had conducted the March 2010 hearing was no longer employed by the Board. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012) (providing that the Veterans Law Judge who conducts a hearing shall participate in making the final determination on the claim). In February 2011, the appellant responded that he wished to appear at a Board hearing before another Veterans Law Judge at his local RO. In April 2011, the Board remanded the matter for the purpose of affording the appellant his requested hearing. In July 2011, the appellant testified at a hearing before the undersigned acting Veterans Law Judge sitting at the Detroit RO. At the hearing, the appellant submitted additional evidence, along with a waiver of initial RO consideration. 38 C.F.R. § 20.1304 (2012). In April 2012, the Board referred the appellant's case for a medical expert opinion. See VHA Directive 2010-044, dated September 29, 2010; 38 U.S.C.A. §§ 5103A, 7109 (West 2002); 38 C.F.R. § 20.901 (2012). That opinion was provided in November 2012. Although the appellant was not offered the opportunity to review this opinion, in light of the favorable decision below, it is clear that no prejudice has resulted. 38 C.F.R. § 20.903 (2012). FINDINGS OF FACT 1. The appellant's current ankylosing spondylitis of the spine had its inception during active service. 2. The appellant's arthritis of the bilateral hips is causally related to his ankylosing spondylitis. 3. The appellant's arthritis of the bilateral knees is causally related to his ankylosing spondylitis. 4. The appellant's bilateral eye disability, including chronic uveitis with glaucoma and cataract formation, is causally related to his ankylosing spondylitis. CONCLUSIONS OF LAW 1. Ankylosing spondylitis of the spine was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Arthritis of the hips is secondary to a service-connected disability, ankylosing spondylitis of the spine. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. Arthritis of the knees is secondary to service-connected a service-connected disability, ankylosing spondylitis of the spine. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. A bilateral eye disability is secondary to service-connected a service-connected disability, ankylosing spondylitis of the spine. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Background The appellant's service treatment records are silent for pertinent complaints or findings, including ankylosing spondylitis of the spine. At his December 1983 military separation medical examination, the appellant completed a report of medical history on which he denied having or ever having had recurrent back pain. The appellant's spine was normal on clinical evaluation. In September 2007, the appellant submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including ankylosing spondylitis of the spine with secondary arthritis of the hips and knees, and an eye disability. In support of his claims, the appellant submitted clinical records showing that in June 1984, shortly after his separation from active service, he sought medical treatment from his private physician for low back pain which he indicated had been present since January 1984, "before he got out of the service." Subsequent clinical records from this provider show continued complaints of low back and sacral pain. In March 1986, X-ray studies of the appellant's spine were performed. The radiologist noted that the appellant's lumbar spine exhibited mild scoliosis with convexity to the left. The vertebral bodies were of normal height and the intervertebral disc spaces were within normal limits. The pedicles and transverse processes were intact. The diagnosis was mild levoscoliosis of the lumbar spine. VA clinical records show that in February 1991, the appellant was seen in connection with his complaints of low back pain which he indicated had been present since the age of 22 or 23. The assessment was probable ankylosing spondylitis. Records from the Social Security Administration (SSA) show that the appellant was determined to be disabled as of March 1992 due to ankylosing spondylitis. Subsequent records received in support of the appellant's claims include a November 2000 letter in which a private ophthalmologist indicated that the appellant had a history of ankylosing spondylitis with secondary intraocular inflammation. The ophthalmologist indicated that the appellant had been under treatment for inflammation in his eyes since approximately 1990. In a September 2007 letter, a private physician's assistant indicated that the appellant had been under his care in 2005 and 2006 for ankylosing spondylitis. He indicated that the appellant's condition had been present as long as ten years prior to his diagnosis, as it was typical of deterioration to be present for many years before the auto fusions of ankylosing spondylitis became apparent. The physician's assistant further indicated that the appellant's hips were now beginning to deteriorate due to the added stress on those joints. Finally, he indicated that it was his opinion that the low back pain the appellant experienced in service likely represented the beginning of the condition. In a December 2007 letter, a private physician noted that the appellant had been diagnosed as having ankylosing spondylitis in 1990. She indicated that when the appellant first came to her in June 2005, he exhibited advanced ankylosing spondylitis of the spine, hips, and knees. She indicated that based on the appellant's history, his ankylosing spondylitis had been present for more than 15 years and that any symptoms of neck, back or other joint pain prior to that time represented beginning ankylosing spondylitis, undiagnosed. In a September 2007 statement, a private ophthalmologist indicated that the appellant had been a patient in his office from 2000 to 2005 for treatment of chronic uveitis (ocular inflammation) in the right eye which had led to the development of both glaucoma and cataract formation in that eye. He indicated that it is very likely that the appellant's ocular inflammation was related to his systemic condition of ankylosing spondylitis. In an October 2007 statement, a VA optometrist indicated that the appellant had been under the care of the VA eye clinic for chronic uveitic glaucoma secondary to chronic uveitis related to ankylosing spondylosis. In a December 2007 statement, an individual with whom the appellant served indicated that he recalled the appellant having problems with his body during active duty, including back and neck pain. He recalled the appellant limping and holding his back in service. In support of the appellant's claim, the RO obtained VA clinical records, dated from October 1990 to March 2010 showing treatment for multiple disabilities, including ankylosing spondylitis with resulting glaucoma in both eyes, right eye cataracts, and degenerative joint disease of both hips. In pertinent part, these records show that in October 1990, the appellant sought treatment for chronic low back pain since service. X-ray studies conducted in March 1992 showed sclerotic changes in both sacroiliac joints and the symphysis pubic which could be related to ankylosing spondylitis of the spine. X-ray studies conducted in August 2002 showed ankylosing spondylitis. The sacroiliac joints were indistinct and the radiologist indicated that they were probably at least partially fused. There were also mild degenerative changes of both hips. In August 2007, the appellant reported that he had had pain for the past twenty-five years due to ankylosing spondylosis of the spine. In March 2008, the appellant was noted to have a history of ankylosing spondylitis that seemed to be affecting the integrity of his knees and ankles. In a March 2010 letter, the appellant's private physician's assistant indicated that the appellant had been diagnosed as having ankylosing spondylitis in 1990. He indicated that it was common medical knowledge that the condition was present usually for 10 years prior to diagnosis. He indicated that based on the disease, it was reasonable to believe that the strenuous physical activity in which the appellant participated in service either exacerbated the progression of the appellant's ankylosing spondylitis or was the triggering mechanism that caused it to be expressed. He also noted that it was well documented that eye and vision problems were associated with ankylosing spondylosis and that the appellant's current eye problems should be considered service-connected. In a March 2010 addendum, the private physician's assistant indicated that the appellant also suffered from bilateral hip and knee pain probably due to degenerative arthritis. He explained that because the appellant had a fixed or ankylosed spine as a result of his spondylitis, his hips and knees endured much more physical stress and wear and tear during normal adult activities. In September 2010, the appellant underwent VA medical examination at which the examiner concluded that the appellant's spondylitis was not caused by or a result of his military service. She based her opinion on the normal findings at service separation and as well as the March 1986 X-ray report which did not note ankylosing spondylitis. Also at the September 2010 VA medical examination, the appellant reported significant hip and knee pain since at least 2002. X-ray studies showed degenerative changes in both hips and knees. The examiner indicated that although the pain and stiffness of ankylosing spondylitis could progress to other joints, including the knees and hips, the appellant's X-rays showed that he had osteoarthritis. Therefore, she concluded that it was less likely than not that the appellant's bilateral hip and knee disabilities were a progression of ankylosing spondylitis. Rather, she indicated that the appellant's current hip and knee disabilities had been permanently aggravated by ankylosing spondylitis. At a VA eye examination in September 2010, the appellant was diagnosed as having chronic uveitis with resultant uveitic glaucoma and pseudophakia in the right eye and open angle glaucoma in the left eye. The examiner indicated that the appellant's right eye disabilities were due to ankylosing spondylitis, but that open angle glaucoma was not caused by his ankylosing spondylitis. He indicated that uveitis in the left eye had never been documented. In March 2010 and April 2011 Board hearings, the appellant testified that he had been originally diagnosed as having ankylosing spondylitis in 1990. He reiterated his recollection to the effect that he began having back pain in service. As set forth above, in April 2012, the Board referred the appellant's case for a medical expert opinion. In November 2012, a VA neurosurgeon provided the requested opinion. He indicated that there was no basis to support the conclusion that strenuous physical activity during the appellant's active service was the triggering mechanism for his ankylosing spondylosis. The neurosurgeon indicated, however, that he was in agreement with the other medical professionals who had submitted opinions in support of the appellant's claim that the appellant's ankylosing spondylitis had been present for a number of years prior to its diagnosis. He explained that ankylosis of the sacroiliac joint as well as the lumbar and thoracic vertebral bodies took a long time to appear on X-rays. He indicated that although the number of years could not be determined with certainty, it was at least as likely as not that ankylosing spondylitis had been present in January 1984, during the appellant's period of active duty. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). In claims for VA benefits, VA 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis The appellant claims that he has ankylosing spondylitis of the spine which had its inception during his period of active duty or is otherwise causally related to his active duty. He further contends that he developed arthritis of the bilateral hips and knees as well as a bilateral eye disability secondary to his ankylosing spondylitis. As set forth above, the appellant's service treatment records are negative for complaints or findings of a back disability, including ankylosing spondylitis. In written statements and Board hearing testimony, however, the appellant has consistently reported that he developed chronic back pain in service which has been present on a continuous basis since that time. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Having observed the demeanor of the appellant at the July 2011 Board hearing, and noting the consistency of his statements over many years that he developed back pain in service which continued thereafter, the Board finds that the appellant's statements are credible. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); see also Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and witness demeanor). The Board finds that its conclusion in this regard is strengthened by several pieces of evidence, including numerous contemporaneous clinical records spanning more than two decades from 1984 to the present documenting consistent clinical reports of back pain since service. The Board also notes that the appellant has submitted a statement from an individual with whom he served attesting to the fact that the appellant suffered from back pain in service. In addition to this evidence, the Board notes that the record on appeal contains multiple medical opinions to the effect that the appellant's ankylosing spondylosis had its inception during service, both as evidenced by his back symptomatology therein as well as the nature of the disease process. For example, in a September 2007 letter, a private physician's assistant explained that the deterioration associated with ankylosing spondylitis was typically present for many years before the auto fusions of ankylosing spondylitis became apparent on imaging studies. Additionally, in a December 2007 letter, a private physician noted that the appellant had been diagnosed as having ankylosing spondylitis in 1990 but that based on the appellant's history, his ankylosing spondylitis had been present for years prior to that time and his symptoms of back pain prior to the diagnosis represented beginning of the disease process. The Board also notes that in a November 2012 opinion, a VA neurosurgeon indicated that he agreed that the appellant's ankylosing spondylitis had been present for a number of years prior to its diagnosis. He explained that ankylosis of the sacroiliac joint as well as the lumbar and thoracic vertebral bodies took a long time to appear on X-rays and although the exact number of years could not be determined with certainty, it was at least as likely as not that ankylosing spondylitis had been present since January 1984, during the appellant's period of active duty. The Board assigns this medical opinion great probative weight. The opinion was provided by a neurosurgeon, a physician with specialized knowledge particularly probative to the matter at issue in this case. Additionally, the opinion is based on a review of the claims folder, including the appellant's contentions, and contains a rationale for the opinion rendered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the record also contains a medical opinion which is unfavorable to the appellant's claim. In that regard, in September 2010, a VA medical examiner concluded that the appellant's spondylitis was not caused by or a result of his military service, given the normal findings at service separation and as well as the March 1986 X-ray report which did not note ankylosing spondylitis. In summary, the Board has considered that the record contains conflicting medical opinions regarding the etiology and likely date of onset of the appellant's ankylosing spondylitis. Indeed, the November 2012 VA neurosurgeon who provided the expert medical opinion in this case explained that the date of onset of the appellant's ankylosing spondylitis could not be determined with certainty. As set forth above, however, certainty is not required in claims for VA benefits. Rather, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, including the VA neurosurgeon's opinion to the effect that it is at least as likely as not that the appellant's ankylosing spondylitis had its inception during his period of active duty, such a conclusion cannot be made in this case. Indeed, it appears to be the consensus of several medical professionals who have considered this case that the appellant's current ankylosing spondylitis had its inception during service. In weighing all of the evidence of record, the Board therefore concludes that there is at least an equal possibility that the appellant's current ankylosing spondylitis had its inception in service. Under these circumstances, the Board finds that there is an approximate balance of positive and negative evidence, warranting an award of service connection for ankylosing spondylitis. See Gilbert, 1 Vet. App. at 54. Having determined that service connection for ankylosing spondylitis is warranted, the Board notes that the appellant also seeks service connection for arthritis of the bilateral hips and knees as well as a bilateral eye disability secondary to ankylosing spondylitis. As discussed in detail above, the record on appeal contains multiple medical opinions attributing the appellant's current bilateral hip and knee arthritis, as well as his bilateral eye disability, to his now service-connected ankylosing spondylitis. Again, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence of record regarding the relationship between the appellant's current bilateral hip, knee, and eye disabilities, such a conclusion cannot be made in this case with respect to the appellant's secondary service connection claims. Rather, in light of the medical evidence of record, the appellant's bilateral hip and knee arthritis and his bilateral eye disability are as likely as not causally related to his ankylosing spondylitis. Given the decision above awarding service connection for ankylosing spondylitis, the Board finds that secondary service connection for bilateral hip and knee arthritis and a bilateral eye disability is now warranted. 38 C.F.R. § 3.310. ORDER Entitlement to service connection for ankylosing spondylitis of the spine is granted. Entitlement to service connection for arthritis of the bilateral hips is granted. Entitlement to service connection for arthritis of the bilateral knees is granted. Entitlement to service connection for a bilateral eye disability is granted. ____________________________________________ K. Millikan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs