Citation Nr: 1306777 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 06-36 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to February 16, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active military service from July 1980 to July 1983. These matters come before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Augusta, Maine. During the pendency of the appeal, the Veteran's claims folder was transferred to the jurisdiction of the RO in Detroit, Michigan. These matters were previously before the Board in September 2011 when they were remanded for further development of the evidence. The matters have been returned to the Board for appellate consideration. As noted in the September 2011 Board decision, the issue of entitlement to service connection for residuals of an appendectomy has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See September 2010 accredited representative's statement, page 3.) Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. In a January 2013 written brief, the Veteran's representative claimed that the Veteran's current coronary artery disease was secondary to his service-connected degenerative disc disease of the lumbar spine. Specifically, the representative suggested that the pain medications used for treatment of his lumbar spine disability has negative effects on the heart, including coronary artery disease. Therefore, the issue of entitlement to service connection for coronary artery disease as secondary to service-connected disabilities, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board does not have jurisdiction over it, it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a bilateral hearing loss disability, entitlement to service connection for a right shoulder disability, and entitlement to a TDIU prior to February 16, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent clinical, or competent and credible lay, evidence of record of a current diagnosis of rheumatoid arthritis at any time since the Veteran's claim. CONCLUSION OF LAW Rheumatoid arthritis was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 1154, 5107, 38 C.F.R §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In VA correspondence, dated in December 2004, VA informed the appellant of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the reasons for the prior denials. The criteria for assignment of an effective date and disability rating in the event of award of service connection were provided in March 2006. In Pelegrini v. Principi, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because complete VCAA notice in this case was not provided prior to the initial AOJ adjudication denying the claims, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). With regard to the duty to assist, the claims file contains the Veteran's service treatment records, Social Security Administration (SSA) records, and private and VA medical records. Additionally, the claims file contains the statements of the Veteran and his family in support of his claim. The Board acknowledges that the claims file does not appear to contain all of the Veteran's service treatment records. When, as here, at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit- of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Records from the Veteran's service, while they may be evidence of complaints, or treatments, at that time, are not probative of a current disability. A current disability is required for entitlement to service connection. As the Veteran's pertinent claim for entitlement to rheumatoid arthritis is denied in the opinion below based on a lack of a current disability, a remand to attempt to obtain missing service treatment records, if any, is not warranted, and would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991).) Pursuant to the Board's remand in September 2011, a new VA examination was obtained in March 2012. 38 C.F.R. § 3.159(c) (4). The Board finds that the March 2012 VA examination is adequate, as it is predicated on a review of the claims file, to include medical records, an interview with the Veteran regarding his symptoms and complaints, and a clinical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Under these circumstances, the Board finds that there has been substantial compliance with its September 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1131(West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). For certain disabilities, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the disability becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran contends that he has rheumatoid arthritis which was caused by trauma in service. He also contends that his rheumatoid arthritis is due to prolonged exposure to the cold in Germany and to the heat in Louisiana. He has stated that his rheumatoid arthritis started in 1984 or 1985 and has progressively worsened since then. (See November 2004 VA Form 21-4138 and claim form dated in November 2004.) The Veteran's service treatment records are negative for any complaints of, or treatment for, rheumatoid arthritis; however, a May 1983 report of medical history for separation purposes reflects that the Veteran reported a past history of swollen or painful joints. The physician's note reflects a broken left wrist, upper respiratory infection, and herpes, but is negative for any further discussion of swollen or painful joints. A service treatment report dated two weeks earlier reflects that the Veteran had swollen lymph nodes and herpes. The service treatment records also reflect that the Veteran had complaints of pain of the left wrist in 1982, one year after a fracture of the left wrist. An October 1982 service treatment report notes that the Veteran reported that his wrist "puffs up" occasionally. Private medical records reflect the Veteran was not known to have rheumatoid arthritis in 1990, was being referred to a rheumatologist for a second opinion in November 1990, had "probable rheumatoid arthritis" in June 1992, and a diagnosis of active rheumatoid arthritis in August 1992. However, a December 1992 private treatment report stated that the Veteran was recently diagnosed with rheumatoid arthritis although it seemed to be more of a radicular pain. Private treatment records covering the period of August 1990 to the present reflect diagnoses of polyarthralgia, back pain with lumbar radiculopathy, low extremity pain involving the left hip, and upper extremity pain in the shoulder, arm, wrist and hand. In a December 1990 private treatment report, the Veteran reported a seven to eight year history of joint pain. SSA records reflect that the Veteran reported that his osteoarthritis, rheumatoid arthritis, thyroid problems and degenerative disc disease first bothered him in 1988. He also alleged disability since May 1989 due to rheumatoid arthritis and carpal tunnel syndrome. However, in the pain questionnaire he stated that he began to have pain in all joints approximately in 1982. A January 2002 private treatment report reflects that the Veteran was seen for evaluation of his rheumatoid arthritis with a complaint of right wrist pain and swelling. It was noted that he developed swelling and pain over the ulnar aspect of the right wrist and hand following fairly minimal trauma while doing some auto mechanic work. An April 2002 private treatment report noted that the Veteran with a longstanding history of chronic rheumatoid arthritis was currently on Methotrexate therapy with Leukovoran and folic acid. He was seen by Dr. Weaver for his rheumatoid arthritis. A December 2002 letter from Dr. Harris Weaver indicated that the Veteran had been treated for rheumatoid arthritis since 1996, which required anti-inflammatory medications as well as medication to suppress the overactive immune system stimulation. A February 2003 private treatment report reflects that the Veteran complained of stiff joints and a recent episode of right knee pain and swelling which apparently had resolved. He reported that he had nearly four hours of morning stiffness, especially in his back and recently had swelling over the dorsum of the left hand. On clinical examination, the Veteran had tenosynnovial swelling over the dorsum of the left hand extensor tendon sheath and swelling, tenderness and painful motion of the right fifth metatarsophalangeal joints. A March 2003 private treatment report reflects that the symptoms of rheumatoid arthritis had gotten worse. The Veteran claimed that he had significant pain in the small joints of both hands and in the extremities. He was unable to function because of pain and had gradually noticed increased requirement for his pain. In an April 2003 private treatment report, the Veteran complained of "hurt all over." In particular, he had significant metatarsalgia. It was noted that he had tenderness over the shoulder girdle, low back, as well as finger joints which were not swollen or thickened. The treating physician noted that the Veteran metatarsalgia without obvious swelling or thickening and the underlying pathology could be very difficult to determine. It was also noted that he had some features of pain amplification (fibromyaligia). The assessments were multi-joint pain, chronic pain syndrome, and rheumatoid arthritis by patient history. The July 2008 VA examination report reflects that the Veteran reported that he was diagnosed with rheumatoid arthritis in 1988. The July 2008 VA examiner stated: There is no documentation in the [service treatment records] of treatment of [sic] diagnosis of rheumatoid arthritis. The veteran has been denied service connection for this condition in the past. Rheumatoid arthritis is an autoimmune disease. This means it is not the result of trauma. There is no credible scientific medical literature that supports multiple traumas result in rheumatoid arthritis. There is no scientific medical literature that supports the Veteran's claim of being exposed to hot or cold weather causes this disease. Based on current review of [the claims file], physical examination, and review of the medical literature the veteran's Rheumatoid arthritis is not caused by active duty military service nor has this condition been aggravated by active duty military service. The Veteran was afforded a VA general medical examination in March 2012. The VA examiner indicated that the claims file was reviewed. The Veteran reported that in 1988 or 1989, he was diagnosed with rheumatoid arthritis by a civilian health care provider, Dr. Pirkel. He stated that while he was in service, his duties as a mechanic required him to often work in awkward positions and that he injured his left wrist sustaining a fracture in 1981. He further stated that he experienced stiffness in the wrist when the weather got cooler. The examiner opined that it was less likely than not (less than 50 percent probability) that rheumatoid arthritis was incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, it was indicated that the best medical evidence available cannot, with certainty of 50 percent or greater, determine an etiology for the Veteran's rheumatoid arthritis because he did not meet the diagnostic criteria for rheumatoid arthritis. The examiner noted that the Veteran was diagnosed with rheumatoid arthritis in 1988 based on complaints of pain in the wrist and elevated rheumatoid factor. However, based on the examiner's review of the medical records, the diagnostic criteria for rheumatoid arthritis were not met under the 1987 American College of Rheumatology classification criteria for rheumatoid arthritis at that time; the 1988 rheumatoid arthritis diagnosis was erroneous; and the Veteran's diagnosis of rheumatoid arthritis was continued in error in the report of the VA examination conducted in July 2008. Furthermore, the examiner noted that the Veteran did not meet the current 2010 American College of Rheumatology diagnostic criteria for diagnosis. The examiner added that all old and new medical evidence of record, the Veteran's complaints of puffed-up wrist in service, his report of swollen joints in service and the June 1985 private medical record reflecting a SED of 21 were considered. However, this was not sufficient to meet diagnostic criteria for rheumatoid arthritis and the past diagnosis was made in error. Therefore, the examiner concluded that the Veteran does not now, nor has he previously had rheumatoid arthritis; thus, rheumatoid arthritis is not etiologically related to the Veteran's military service. After reviewing the evidence of record, the Board finds that there is no competent credible evidence of record that the Veteran has a current diagnosis of rheumatoid arthritis. To the contrary, the evidence is against such a finding. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In this regard, the Board points out that in the absence of an underlying pathology to account for the pain, pain alone is not a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The private treatment records reflect diagnoses of rheumatoid arthritis since early 1990's. However, the Board finds that the most probative evidence shows that the Veteran currently does not have a diagnosis of rheumatoid arthritis, nor met the criteria for a diagnosis of rheumatoid arthritis at any time since receipt of his claim for service connection. To that effect, the March 2012 VA examiner opined that the best medical evidence available cannot, with certainty of 50 percent or greater, determine an etiology for the Veteran's rheumatoid arthritis because he did not meet the diagnostic criteria for rheumatoid arthritis. In support of this opinion, the examiner provided a detailed analysis using the classification criteria for rheumatoid arthritis established by the American College of Rheumatology and explained that the Veteran's did not meet each specific criterion for a diagnosis of rheumatoid arthritis at any time during the appeal period. The examiner considered all of the Veteran's radiology reports in his claims file but stated that no radiology images were found that confirmed rheumatoid arthritis. On the other hand, the other medical evidence of record noting diagnoses of rheumatoid arthritis does not provide any explanation as to how rheumatoid arthritis was diagnosed and simply continued the diagnosis based on the Veteran's reported history. Consequently, the probative value of all private treatment records noting diagnoses of rheumatoid arthritis that were not supported by clinical data is outweighed by the March 2012 examiner's opinion, who found that the Veteran currently did not meet, and had never met, the specific criteria for a diagnosis of rheumatoid arthritis. The Veteran is certainly competent to indicate that he experiences pain in his joints. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, whether the joint pain is representative of an underlying pathology is well beyond lay expertise. No current diagnosis of rheumatoid arthritis is apparent from the clinical examinations on file, and so the existence of the claimed malady turns on what is not observable, namely whether there is a pathological process within the body. Such a disorder clearly is not one susceptible to lay diagnosis. Moreover, pain in the joints is undoubtedly subject to many causes, and the determination of whether that pain represents rheumatoid arthritis is clearly within the realm of medical expertise. In short, the Board finds that the Veteran is not competent to establish that he has rheumatoid arthritis. Furthermore, the Board finds the Veteran's account of experiencing, continuously since service, the same pain that he claims to be due to rheumatoid arthritis to lack credibility. Although the Veteran now asserts that his rheumatoid arthritis started in 1984 or 1985, which would be close to a year from his service separation, his SSA records reflect that he reported that his rheumatoid arthritis problems first bothered him in 1988 or in May 1989. The Veteran's inconsistencies show that the lay evidence is not a credible history. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997); McCormick v. Gober, 14 Vet. App. 39 (2000). As a service connection claim requires, at a minimum, medical evidence of a current disability, the Veteran's claim for service connection for rheumatoid arthritis is not warranted in this case. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for rheumatoid arthritis is denied. REMAND As noted in the Board's September 2011 remand, the Veteran entered active service in July 1980, and the earliest service treatment report of record is dated from July 1982. The Board remand directed that an attempt be made to obtain STR's (service treatment records) dated from July 1980 to July 1982. Pursuant to the Board's remand, a request was made to the National Personnel Records Center (NPRC) for the Veteran's outstanding service treatment records dated from 1980. In September 2011, the NPRC sent a copy of the Veteran's immunization record, and indicated that no other additional service treatment records were available. However, the Veteran was never provided with a written notice of the unavailability of these records that meets the requirements under 38 C.F.R. § 3.159(e). In particular, the RO failed to request the Veteran complete an NA Form 13055 (Request for Information Needed to Reconstruct Medical Data) and/or NA Form 13075 (Questionnaire About Military Service); or advise the Veteran of alternative documents that he may submit or request assistance in procuring. See VA Manual M21-1MR, Part III, Subpart iii, Chapter 2, Section E. Accordingly, a remand is required so that the Veteran can be given a proper notice of the unavailability of some his service treatment records and informed of alternative evidence to support his claim. Additionally, in a December 2012 rating decision, entitlement to a TDIU was granted effective from February 16, 2012. In his January 2013 notice of disagreement, the Veteran expressed a disagreement with the effective date assigned for the grant of TDIU. The claims file does not contain a statement of the case (SOC) on the issue of entitlement to a TDIU prior to February 16, 2012. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. If all procedurally appropriate actions have been taken to locate and secure the Veteran's outstanding medical/dental records for the period from July 1980 to July 1982 (to include Surgeon General records, etc.) and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, the RO must make a formal finding to that effect. The RO must also provide the Veteran and his representative with a proper notice that meets the requirement under 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) and including (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Specifically, the Veteran must be notified of the unavailability of service treatment records for his period of service from July 1980 to July 1982, and informed of alternative sources of evidence he may provide to support his claim, including VA military files, statements from service medical personnel, buddy statements, employment physical examination reports, medical evidence from civilian/private medical providers by whom the Veteran was treated, pharmacy prescription records, etc. The Veteran and his representative must then be given an opportunity to respond. 2. After completing the above actions, and if any new evidence is associated with the claims file, the RO must readjudicate the Veteran's claims on appeal, taking into consideration any newly acquired evidence submitted. If any of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 3. Issue a statement of the case pursuant to the notice of disagreement received in January 2013 as to the rating decision in December 2012, which in pertinent part, denied entitlement to a TDIU prior to February 16, 2012. Only if the Veteran completes an appeal as to the issue by the timely filing of a substantive appeal should such issue be certified to the Board for appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs