Citation Nr: 1309296 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 08-03 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for arthritis of the neck. 2. Entitlement to service connection for arthritis of the ankles. 3. Entitlement to service connection for arthritis of the knees. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by Des Moines, Iowa Regional Office (RO). A hearing before a member of the Board was scheduled for August 2011; however, the Board member assigned to conduct the hearing has reported that the Veteran did not appear for the hearing. In a November 2011 Board decision, claims for entitlement to an initial compensable rating for right tympanic membrane perforation with hearing loss and entitlement to service connection for arthritis of the fingers were denied. The claims of entitlement to service connection for arthritis of the neck, ankles and knees were remanded by the November 2011 Board action. The Board notes that additional evidence has been added to the Virtual VA file in the form of additional VA treatment records associated by the RO. In February 2013, the Veteran's representative submitted a waiver of the Veteran's right to have the evidence initially considered by the RO. FINDINGS OF FACT 1. Arthritis of the neck did not begin during military service or within the first post-service year; nor is it otherwise related to the Veteran's period of military service. 2. Arthritis of the left or right ankle did not begin during service or within the first post-service year; nor is it otherwise related to the Veteran's period of military service. 3. Arthritis of the left or right knee did not begin during service or within the first post-service year; nor is it otherwise related to the Veteran's period of military service. CONCLUSIONS OF LAW 1. The Veteran does not have arthritis of the neck that is the result of disease or injury incurred in or aggravated by active military service; nor may arthritis of the neck be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The Veteran does not have arthritis of an ankle that is the result of disease or injury incurred in or aggravated by active military service; nor may ankle arthritis be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The Veteran does not have arthritis of a knee that is the result of disease or injury incurred in or aggravated by active military service; nor may knee arthritis be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in May 2008 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. VA examination provided the findings necessary to adjudicate the claims. Additionally, the Board has reviewed the record for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims of service connection. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). (This analysis applies to situations where chronic diseases are shown, such as arthritis.) In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted 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). If arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of 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; 38 C.F.R. §§ 3.307, 3.309. The Veteran attributes his arthritis to accidents and incidents during military service. More specifically, the Veteran was treated for chondromalacia of the left patella as noted in an April 1986 treatment note. An April 1987 treatment note indicates that the Veteran's left knee was locking. Additionally, the Veteran had an inversion injury to his left ankle in April 1988 and a softball injury to his right ankle in July 1988. Regarding the Veteran's claim for service connection for a neck disability, service treatment records document that the Veteran was involved in two separate motor vehicle accidents during his period of service. His neurological symptoms were attributed to a right brachial plexus injury for which he has been separately service connected. The Veteran was diagnosed with whiplash after a March 1990 accident. A March 1990 treatment note indicates that the whiplash would not be permanent but merely exacerbated symptoms of the right brachial plexus injury, and would last a few weeks. An October 1990 profile report indicates that the Veteran had a cervical strain. The Veteran's March 1991 separation examination, in the physician's summary, makes no mention of any residual disability affecting the neck sustained during the Veteran's motor vehicle accidents or any then-current ankle or knee problems. In the Veteran's self-report of past medical history, he checked "trick" or locked knee, broken bones, recurrent back pain, and swollen or painful joints. The Veteran underwent a VA examination in September 1991. There was no evidence of arthritis on cervical spine and left knee x-ray films. By a February 1992 rating decision, the Veteran was service connected for residuals of a brachial plexus injury and chondromalacia of the left patella. The Veteran appealed his ratings from the February 1992 rating decision. The Veteran was afforded additional VA examinations in the context of those appeals. An x-ray of the left knee indicated a small area of calcification on the superior pole of the patella consistent with calcific tendonitis. The examiner indicated that the Veteran had chondromalacia of the left knee and he could not explain the extent or severity of symptoms on the basis of x-ray findings or arthritis problems. The Veteran was provided radiological testing of his cervical spine at that time, with no significant abnormalities noted. The examiner indicated that there was no evidence to suggest any significant cervical disc or arthritic problem. A May 2007 VA treatment note indicates complaints of chronic "arthritis" pain. The Veteran claimed service connection for arthritis in his knees, ankles and neck in March 2008 due to an accident while in service, which is the basis of the current appeal. The Veteran underwent a VA examination in August 2008. The examiner indicated that x-rays of the ankles, knees and cervical spine revealed no arthritis. The Veteran reported that the doctor who examined him at the time of his in-service motor vehicle accident predicted that he would have arthritis in ten years. The Veteran complained of multiple joint pain which had been present for the previous ten years. The bilateral ankle x-rays indicated small ossicles at the bilateral medial malleolus. The examiner indicated that the Veteran symptoms would suggest a rheumatologic process rather than a degenerative process. The examiner indicated that the Veteran's multiple joint complaints were not related to the motor vehicle accident approximately twenty years prior during military service. (The examiner went on to describe why the Veteran's service-connected brachialplexopathy of the right upper extremity resolved years ago; however, that issue is not currently before the Board.) A May 2010 VA treatment note indicates symptoms consistent with left knee degenerative joint disease. A private October 2010 treatment note indicates that the Veteran's knees and ankles were unremarkable except for some periarticular tenderness; the Veteran lacked about 10 degrees of cervical rotation bilaterally. The impression was possible mild cervical spondylosis. The Veteran was told specifically by the provider that he was not "riddled with arthritis". A January 2011 treatment note from the same provider indicates that the Veteran had no degenerative changes in his knees or ankles with no inflammatory or degenerative arthropathy to explain his nonspecific myofascial pain. The Veteran submitted three lay statements in October 2011. Two were from co-workers indicating his current physical condition. One statement indicated that the person had known the Veteran since elementary school. The person indicated that when the Veteran returned from service, he had a bad knee, a bad shoulder and he was always complaining about his sore joints. The Veteran was afforded a VA examination in December 2011. The examiner diagnosed the Veteran with fibromyalgia which was not related to service or any incident of service. The Veteran indicated that he had been diagnosed with fibromyalgia and had been prescribed with a medication that improved his symptoms but they had not resolved. Considering the Veteran's ankles, the Veteran told the examiner that he had hurt his ankles in a motor vehicle accident while in service; however, he had not received treatment for his ankles since that time. The examiner noted the in-service ankle sprains. The Veteran was diagnosed with degenerative joint disease at the anterior talar navicular joints with minimal calcaneal spurs, consistent with the Veteran's age and body habitus (obese, class II with a BMI of 37.19). The examiner indicated that the Veteran's in-service ankle sprains had resolved and that ankle sprains do not result in degenerative joint disease/osteoarthritis unless joint damage occurs. The examiner noted the incidental finding of ossicles in the previous VA examination, noting that ossicles are small bones which form naturally during the development of the skeleton. Concerning the Veteran's cervical spine, the examiner indicated a diagnosis of mild spondylosis which was consistent with the Veteran's age and not of clinical significance. The examiner also indicated that the Veteran's symptoms were most consistent with the already mentioned fibromyalgia and that his cervical spine degenerative joint disease was consistent with age and less likely than not caused or as a result of injury or illness during military service. Regarding the knees, the examiner noted that the Veteran was service connected for left knee chondromalacia patella. The examiner indicated that the Veteran's diffuse myalgias were consistent with fibromyalgia. Other findings specific to the knees included minimal bilateral medial joint space narrowing and mild superior patellar osteophytes consistent with the Veteran's age, occupation and body habitus. The examiner noted that the Veteran's BMI had progressed from 31.7 in April 1997 to 37.19 at the time of the examination. The examiner noted that since the current findings are bilateral, there is no apparent sequelae or residuals from the in-service left knee injury and that the service-connected injury does not result in degenerative joint disease of the knee joint. The examiner opined that the Veteran's current knee complaints were less likely than not related to service more than 22 years prior but are instead the results of the Veteran's current lifestyle. The Board finds that service connection for ankle, knee or neck arthritis must be denied as the greater weight of the evidence is against a finding that the Veteran has current disabilities that are related to active service. Indeed, there is no competent evidence linking any disability of these joints that is not already service connected to any incident of active service, to include his noted in-service treatment and accidents. There is additionally no competent evidence that indicates that the Veteran had arthritis within one year of active service, but rather objective medical evidence conclusively shows a lack of arthritis for many years after service. Additionally, the record does not establish a continuity of symptoms concerning the claimed disabilities. Rather, the Veteran expressly denied problems at his separation examination, and the clinical record reveals no treatment for years after discharge. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes the very recently decided case of Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). The Board notes that the Veteran's contentions concerning continuity of arthritis are contradicted by the multiple medical opinions of record indicating that there is no indication of arthritis for approximately twenty years after service. (A diagnosis of arthritis requires radiological evidence 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).) Additionally, the Veteran filed a claim for service connection for brachial plexus injury in 1991, right after his discharge from active service, and did not mention ankle, knee (except for the service-connected left knee disability discussed above), or neck disabilities. The Board does not find it likely that the noted injuries in service resulted in chronic pathology, but went unnoticed on the separation examination, with no recorded treatment for many years, and was not mentioned in August 1991 when the Veteran was aware of the compensation program and was actively seeking benefits for another disability. Finally, the medical evidence of record does not relate current knee, neck or ankle problems to active service. Indeed, two VA medical opinions, offered following examination of the Veteran and after a review of the relevant records, indicate that the current disorders are less likely than not related to any incident of service, but are instead related to occupation, body habitus, and age. The explanations were clearly articulated and were based in part on the Veteran's own statements. For these reasons, the opinions are deemed highly probative and they have not been refuted elsewhere in the record. The Veteran himself believes that his disabilities are related to active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time and the necessity of radiological evidence for a diagnosis of arthritis, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against the claims. (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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).) ORDER Entitlement to service connection for arthritis of the neck is denied. Entitlement to service connection for arthritis of the left or right ankle is denied. Entitlement to service connection for arthritis of the left or right knee is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs