Citation Nr: 1314383 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-46 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for multiple joint pain, claimed as due to arthritis or to an undiagnosed illness. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and G. A. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 1992, including service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) In September 2010, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript is in the Veteran's file. In August 2011, the Board remanded the case for further development. While on appeal in a rating decision in August 2012, the RO granted service connection for chondromalacia of the patella of the left knee, chondromalacia of the patella of the right knee, left ankle tendonitis, right ankle tendonitis, bronchitis and hemorrhoids, and the claims are no longer on appeal. In February 2013, the Board notified the Veteran that the Veterans Law Judge who conducted the hearing in September 2010 was no longer at the Board, and that he had the right to another hearing by a Veterans Law Judge who would make the decision on his appeal. The Veteran did not respond to notice. FINDING OF FACT The current multiple joint pain, namely, bilateral shoulder tendonitis and impingement syndrome, bilateral elbow tendonitis, bilateral wrist tendonitis, and bilateral hand tendonitis was not affirmatively shown to have had onset in service and current multiple joint pain, namely, bilateral shoulder tendonitis and impingement syndrome, bilateral elbow tendonitis, bilateral wrist tendonitis, and bilateral hand tendonitis was not otherwise related to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for multiple joint pain, namely, bilateral shoulder tendonitis and impingement syndrome, bilateral elbow tendonitis, bilateral wrist tendonitis, and bilateral hand tendonitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and lay or medical evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in November 2007. The notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of an injury or event or disease, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or event or disease, causing an injury or disease, during service. The Veteran was notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment record, VA records, and private medical records. In October 2011, the Veteran was afforded a VA examination to obtain a medical opinion. As the report of the examination is based on a review of the Veteran's history and described the current disabilities in sufficient detail so that the Board's review is a fully informed one, the report of the examination and the medical opinion is adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §§ 1110 (wartime service) and 1131 (peacetime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). If a veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, then service connection may be established presumptively for a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness if such illness became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). An "undiagnosed illness" is defined as one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). For these purposes, manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness includes joint pain. 38 C.F.R. § 3.317(b)(6). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts On enlistment examination, history included a fracture of the right hand. The service treatment records contain no complaint or findings of any abnormality of the joints of the upper extremities (shoulders, elbows, wrists, and hands). In April 1991 in Operation Desert Storm, the Veteran was exposed to the smoke of oil well fires. On separation examination, the upper extremities were evaluated as normal. After service in December 1995 on VA examination the Veteran complained of right knee pain only. In May 2007 in a VA Persian Gulf history and examination report, the Veteran stated that he had a tingling sensation in his hand for 17 years. In September 2010, the Veteran testified that the joints of the elbows and hands hurt all the time. He attributed the symptoms to in-service activities, including hiking and road marches. It was argued too that the multiple joint pain was due to an undiagnosed illness related to the Gulf War. In October 2011 on VA examination, the Veteran stated that he began to experience bilateral shoulder pain in the last several months. He denied any shoulder injury. The diagnosed were bilateral tendinosis and bilateral impingement syndrome. The VA examiner expressed the opinion that the Veteran did not have an acromioclavicular joint condition or other impairment of the clavicle or scapula. Imaging of the shoulders did not show arthritis. The Veteran stated that he sometimes had swelling of the elbows and that he had always experienced pain in the elbows. The diagnosis was bilateral tendonitis of the elbows. Imaging of the elbows did not show arthritis. The Veteran stated that he had wrist pain for about ten years. The diagnosis was bilateral tendonitis of the wrists. Imaging did not show arthritis. The Veteran stated that had hand pain and swelling for about ten years. The diagnosis was bilateral tendonitis of the hands. Imaging did not show arthritis. The VA examiner expressed the opinion that bilateral tendonitis of the shoulder, elbow, wrist, and hand and impingement syndrome of the shoulders were less likely than not (less than 50 percent probability) incurred in or caused by in-service injury, event, or illness. The VA examiner explained that the tendonitis did not begin until several years after service, that the conditions had a definitive diagnosis, that the conditions were due to non-traumatic motions in the joints, and that the Veteran did not recall any particular incident associated with the joint symptoms. Analysis Apart from a history of a pre-existing hand fracture, the current disabilities of the shoulders, elbows, wrists and hands were not affirmatively shown to have been present during service. Also, neither tendonitis nor impingement syndrome is a chronic disease enumerated in the regulation listing named chronic diseases, 38 C.F.R. § 3.309(a), and the theories of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a). Although the current disabilities were not affirmatively shown in service and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, service connection may still be established for a disability initially diagnosed after service under 38 C.F.R. § 3.303(d), when all of the evidence, including that pertinent to service, shows that the disability as incurred in service. The Veteran is competent to describe symptoms of joint pain. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The questions are whether the Veteran as layperson is competent to diagnosis the current disabilities or to offer an opinion on a causal relationship between the disabilities first shown after service and an injury, disease, or even during service, the so-called "nexus" requirement. Whether the current tendonitis of the upper extremities and impingement syndrome of the shoulders were present in service or whether the disabilities were caused by an injury or event are not questions that can be competently answered by the Veteran as a lay person based on mere personal observation as the disabilities fall outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render a diagnosis of the claimed disabilities or to establish a medical causation of the current disabiities. Where, as here, there is a question of the diagnosis, which is not capable of lay observation, including by case law, to the extent the Veteran's lay testimony is offered as proof of the presence of the claimed disabilities or on causation the Veteran's lay testimony is not competent evidence, and the Veteran's lay testimony is not admissible as evidence, that is, the Veteran's lay testimony is not to be considered as competent evidence that the claimed disabilities were present in service or caused by any incident in service. Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. No medical professional has diagnosed the current disabilities before 2011, almost 20 years after service separation in 1992. And as arthritis of the claimed disabilities is not shown, presumptive service connection for arthritis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 does not apply. And no medical professional has diagnosed the current disabilities in association with any injury, disease, or event in service. Although the Veteran served in the Persian Gulf and joint pain is one of the symptoms cited in 38 C.F.R. § 3.317 as being characteristic of an undiagnosed illness or a medically unexplained multisymptom illness, the Veteran's joint pain have been diagnosed as tendonitis and impingement syndrome, which are known clinical diagnoses. Therefore, service connection under 38 C.F.R. § 3.317 as an undiagnosed illness or medically unexplained multisymptom illness is not established. Medical Evidence As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d) and medial causation, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). On VA examination in October 2011, the VA examiner expressed the opinion that bilateral tendonitis of the shoulder, elbow, wrist, and hand and impingement syndrome of the shoulders were less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner explained that the tendonitis did not begin until several years after service, that the conditions had a definitive diagnosis, that the conditions were due to non-traumatic motions in the joints, and that the Veteran did not recall any particular incident associated with the joint symptoms. Considering the merits of the analysis and the details of the opinion, the Board finds that the opinion of the VA examiner, which was based on medical analysis applied to the facts of case, is persuasive medical evidence against the claim. As there is no favorable medical evidence to consider and weigh against the opinion of the VA examiner, the preponderance of the evidence is against the claim under the applicable theories of service connection, applying 38 C.F.R. § 3.303(a), (b), and (d) and 38 C.F.R. § 3.307, § 3.309, and § 3.317 and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for multiple joint pain, namely, bilateral shoulder tendonitis and impingement syndrome, bilateral elbow tendonitis, bilateral wrist tendonitis, and bilateral hand tendonitis is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs