Citation Nr: 1307730 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 07-31 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral hands. 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 a higher initial rating for residuals of a chip fracture at C-5 with degenerative disc disease, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from December 1963 to May 1972, with subsequent service in the Navy Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO granted entitlement to service connection for residuals of a chip fracture at C-5 with degenerative disc disease and assigned a 10 percent rating. The Veteran timely appealed the assigned rating. The RO also denied entitlement to service connection for arthritis of the bilateral upper and lower extremities and the Veteran appealed these determinations as well. FINDINGS OF FACT 1. Arthritis of the left lower extremity to include the left hip and left knee was not shown as such in service, did not manifest within the one year presumptive period, and there were intercurrent causes to explain manifestations of the chronic disease many years after service as well as a lack of nexus between current disease and service and any post service continuity of symptomatology. 2. Arthritis of the right lower extremity to include the left hip and left knee was not shown as such in service, did not manifest within the one year presumptive period, and there were intercurrent causes to explain manifestations of the chronic disease many years after service as well as a lack of nexus between current disease and service and any post service continuity of symptomatology. 3. Arthritis of the right upper extremity to include the right hand and elbow was not shown as such in service, did not manifest within the one year presumptive period, and there were intercurrent causes to explain manifestations of the chronic disease many years after service as well as a lack of nexus between current disease and service and any post service continuity of symptomatology. 4. Arthritis of the left upper extremity to include the left hand and elbow was not shown as such in service, did not manifest within the one year presumptive period, and there were intercurrent causes to explain manifestations of the chronic disease many years after service as well as a lack of nexus between current disease and service and any post service continuity of symptomatology. 5. Chip fracture at C-5 with degenerative disc disease is not manifested by the functional equivalent of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. Arthritis of the left lower extremity to include the left hip and left knee was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Arthritis of the right lower extremity to include the right hip and right knee was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Arthritis of the left upper extremity to include the left hand was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. Arthritis of the right upper extremity to include the right hand was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for a rating higher than 10 percent disabling for chip fracture at C-5 with degenerative disc disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in July 2005, VA advised the Veteran of the information and evidence needed to substantiate the claims. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates in November in a notice letter for another claim. The appeal was most recently readjudicated in the February 2011 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and the January 2011 VA examination report. For the reasons shown below, the January 2011VA examination report was adequate with regard to the service connection and rating claims because the examiner supported his conclusion with an analysis that was adequate for the Board to consider and weigh against contrary opinions and the examination was based on consideration of the Veteran's prior medical history and described the cervical spine disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123-125 (2007). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). SERVICE CONNECTION As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are special rules with regard to diseases that have been designated as "chronic" in 38 U.S.C.A. § 1101(3) and 3.309(e), including arthritis. For those diseases, if they are "shown as such in service," subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b); Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The regulation is clear that any manifestation of a chronic disease, such as joint pain, will not permit service connection for the chronic disease associated with the manifestation, i.e., arthritis. To be "shown in service," the disease identity must be established and the diagnosis cannot be subject to legitimate question. Once the chronic disease is shown in service, there is no "nexus" requirement for compensation, as long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker; Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). If, however, the condition noted in service is not, in fact, shown to be chronic, where the diagnosis of chronicity may be legitimately questioned, or when the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after service is required to support the claim. Id. In a case involving a chronic disease, a claimant can establish continuity of symptomatology to support a service connection claim with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Court in Walker noted that there is disagreement as to whether the continuity of symptomatology test requires not only showing the continuity but also showing a medical nexus between the current condition and the continuity of symptomatology, as indicated in Savage, but declined to offer an opinion on how § 3.303(b) operates in practice. See Walker, footnote 5. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, service connection must be denied because arthritis was not shown as such in service, as the disease identity was not established and the diagnosis is subject to legitimate question, and the weight of the evidence reflects that there were intercurrent causes to explain post-service manifestations of the chronic disease and a lack of nexus between current disease and service and any post service continuity of symptomatology. Service treatment records reveal a report of pain in the joints, mild stiffness and pain in the hands in November 1966. He complained of joint pain in both hands in February 1969. He was noted to have a long history of intermittent small joint pain in the hands. Workups were noted to be negative in the past. During his flight examination in May 1969, the Veteran reported several conditions to include swollen or painful joints and painful or trick shoulder or elbow. Painful arthritis (elbows and hands), no symptoms now, was noted by the examiner. He complained of mild left knee pain in November 1969. When seen in January 1970, a history was noted of waxing and waning joint and back pain involving the M-P, PIP joints, elbow, right shoulder, ankles, low and mid back, and most recently both knees. In the March 1970 discharge/reenlistment examination, the upper extremities and lower extremities were reported as normal. A May 1970 examination revealed no evidence of arthritis. He reported having a sore left shoulder for three days in June 1970 and continuing joint pains in January 1971. In October 1971, the Veteran fell on his knee. X-rays were negative at that time. Joint pains were again noted in January 1972. In February 1972, joints pains especially in the hands were noted. The examiner stated that workups in the past showed no pathology. Examination revealed he had full range of motion of all joints and no inflammation. During his May 1972 separation examination, the upper extremities and lower extremities were reported as normal. Post service, on the December 1972 Reserve enlistment examination, arthritis of the hands in 1965 while on active duty, not considered disqualifying, was noted. At that time, the Veteran reported swollen or painful joints. He also reported a history of swollen or painful joints in March 1976 and March 1977. The upper extremities and lower extremities were reported as normal during those examinations, and it was noted by the examiner that the Veteran was double jointed and was without arthritic problem. The upper extremities and lower extremities were reported as normal in April 1978. At that time, the Veteran reported swollen or painful joints. The examiner rendered a summary of swollen joints during weather changes. In March 1979, the upper extremities and lower extremities were reported as normal. The Veteran reported swollen or painful joints, and arthritis, rheumatism or bursitis. The examiner summarized "joints in body-1965-ASPI." After reviewing the claims file and examining the Veteran, the January 2011 VA examiner diagnosed degenerative joint disease (DJD) of the bilateral hands, hips, and knees. He noted the Veteran's reports of his hands locking up in service and that the Veteran was evaluated and seen by rheumatology as indicated in the claims file, was found to have elevated uric acid level but no episodes of gout, and the rest of the workup was nonrevealing. The examiner noted that the Veteran was seen by a rheumatologist while in service and found to have a weakly reactive rheumatoid factor, with repeat rheumatoid factor testing negative and X-rays of the hands negative. The examiner noted that there was no evidence of active arthritis at that time and the impression of the rheumatologist was that he had no evidence of arthritis. He noted the Veteran's reports that his hand continued to lock up throughout the years and he developed pain in the hips and knees as well but had never been diagnosed with rheumatoid arthritis or any other systemic arthritis. The January 2011 VA examiner opined that the Veteran's DJD of the hands, hips, and knees were less likely as not caused by or related to his active duty service. The VA examiner noted that, although the Veteran demonstrated symptoms of locking of his bilateral hands while in service, workup was negative for any underlying systemic illness and x rays were negative at that time. Rather, the examiner stated that the Veteran does have advanced age, as well as severe obesity, which were likely the etiology for his degenerative joint disease. The Board finds that the VA examiner's opinion is of significant probative weight as he explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Significantly, he acknowledged the Veteran's statements indicating in-service symptoms and post service continuity of symptomatology as well as notations in the service treatment records indicating the possibility of arthritis and the ultimate negative findings and concluded both that the Veteran did not have arthritis in service and it was more likely that his current arthritis was related to his advanced age and obesity than service. Read in the context of the entire examination report, the examiner's brief opinion at the conclusion of the examination report is adequate and probative. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). To the extent that this opinion conflicts with the Veteran's statements as to continuity of symptomatology and the relationship of his current arthritis to this continuity, and even assuming the competence of the Veteran's statements in this regard, the Board finds the specific, reasoned opinion of the trained health care professional to be of greater probative weight than the Veteran's more general lay assertions. The above evidence reflects that, as envisioned by 38 C.F.R. § 3.303(b), there are isolated notations of arthritis in the service treatment records, but the evidence does not show a combination of manifestations sufficient to identify the disease entity or chronicity at the time. Rather, the mostly normal in service findings and the opinion of the January 2011 VA examiner reflect that arthritis was not shown in service. The weight of the evidence, in particular the January 2011 VA examiner's probative opinion, reflects that there were intercurrent causes to explain post-service manifestations of the chronic disease and a lack of nexus between current disease and post service continuity of symptomatology. This same evidence also shows a lack of nexus between the currently diagnosed arthritis of the upper and lower extremities, including the hands, hips, and knees, and service, as well as lack of manifestation of arthritis within the one year presumptive period. Entitlement to service connection is therefore not warranted under 38 C.F.R. § 3.303(a) or (d) or § 3.307(a) as well. As the preponderance of the evidence is thus against the claims, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). RATING CLAIM Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). As shown below, a uniform 10 percent rating is proper in this case. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C .F.R. § 4.59. The Veteran's residuals of a chip fracture at C-5 with degenerative disc disease are rated 10 percent disabling under DC 5242. The current rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. Consideration is also given to additional limitation on repetition related to pain, fatigue, incoordination, weakness or lack of endurance. DeLuca, 8 Vet. App. 202. Disabilities of the cervical spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the general rating formula, a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 50 and 100 percent ratings are warranted for unfavorable ankylosis of the thoracolumbar spine and the entire spine, respectively. Thus, to warrant a rating higher than the current 10 percent, the evidence must show the functional equivalent of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher evaluation may also be based upon the frequency and duration of incapacitating episodes under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes. Based on evidence of record, the Board finds against any higher rating. The evidence reflects that forward flexion of the cervical spine was not between 15 and 30 degrees, but, rather, was greater than 30 degrees, and that combined range of motion of the cervical spine was greater than 170 degrees, and there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. On the January 2011 VA examination, there was forward flexion 0 to 40 degrees, extension 0 to 40 degrees, right and left lateral flexion 0 to 40 degrees, and right and left rotations 0 to 70 degrees. Pain was at the end of range of motion. There was no weakness, tenderness, fatigue, lack of endurance and/or incoordination. The most limiting factor was pain. Significantly, however, with repetitive motion testing, range of motion remained unchanged. The Board has considered any functional loss of motion due to other factors, to include pain, but the evidence reflects that neither pain nor the other DeLuca factors resulted in the functional equivalent of forward flexion between 15 and 30 degrees or combined range of motion 170 degrees or less, and a higher rating is not warranted on this basis. Examination also revealed there were no muscle spasms or guarding. These findings do not justify a higher rating. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated. The Board finds that he is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for the next higher evaluation have been met. The more probative evidence consists of that prepared by a trained medical professional, and such evidence demonstrates that the currently assigned rating is appropriate. The Board has considered other appropriate diagnostic codes particularly diagnostic Code 5243, applicable to IVDS. However, there is no evidence of incapacitating episodes. Neither the lay or medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. The Board also finds no basis for assignment of a separate rating for neurologic manifestations of the Veteran's cervical spine disability pursuant to Note 1 of the general rating formula, which provides that associated objective neurologic manifestations are to be rated separately under the appropriate diagnostic code. There is no evidence that demonstrates neurologic manifestations of the cervical spine disability. As such, there is no basis for assignment of a separate rating for neurologic symptoms. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disabilities. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. To the extent that the Veteran has complained of symptoms such as pain, stiffness, or aching in the cervical spine, these symptoms are specifically contemplated by the general rating formula. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Board also notes that while it is shown that the Veteran is unemployed, his unemployment has not been attributed to his service connected disabilities. Rather, it is shown that he is retired and there is no indication that retirement was due to service-connected disabilities. There is thus no indication in the record that he is unemployable as a result of his service connected disabilities. Consequently, the Board finds there is no implicit claim for total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disabilities. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. ORDER Service connection for arthritis of the left lower extremity to include the left hip and left knee is denied. Service connection for arthritis of the right lower extremity to include the right hip and right knee is denied. Service connection for arthritis of the right upper extremity to include the right hand is denied. Service connection for arthritis of the left upper extremity to include the left hand is denied. A rating higher than 10 percent for residuals of a chip fracture at C-5 with degenerative disc disease is denied. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs