Citation Nr: 1316604 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 07-24 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to a compensable rating for polyarthritis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that denied entitlement to service connection for rheumatoid arthritis and an increased (compensable) rating for polyarthritis. The Board remanded these issues for further development in April 2011, and the case now returns for further appellate review. The issue of entitlement to a compensable rating for polyarthritis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Current rheumatoid arthritis has not been demonstrated. CONCLUSION OF LAW The criteria to establish service connection for rheumatoid arthritis have not been met. 38 U.S.C.A. §§ 1110, 1112(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran was advised in May 2006, prior to the initial unfavorable rating decision, of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This is sufficient notice. Concerning the duty to assist, the Veteran's service treatment records and all identified, pertinent post-service treatment records have been obtained and considered. In particular, as directed in the prior remand, the agency of original jurisdiction (AOJ) requested copies of any VA treatment records dated from April 2007, to include any follow-up rheumatology appointments. Records dated in 2007 and 2008 were obtained, including from the rheumatology clinic. A July 2007 VA treatment record, received after the Board remand, notes that the Veteran was being followed by outside providers for various conditions. There is no indication that any of this treatment pertained to rheumatoid arthritis. The May 2006, letter had advised the Veteran that if he had received relevant outside treatment, he should submit the records or complete and return enclosed released for VA to obtain the records. He did not submit authorizations or treatment records; or otherwise report treatment for rheumatoid arthritis. VA is only obligated to obtain records that are adequately identified. 38 C.F.R. § 3.159(c)(i)-(ii) (2012). The Board has reviewed both the paper claims file and the Virtual VA paperless claims processing system. All pertinent records are in the paper file and were considered by the AOJ. There is no indication that the Veteran receives benefits from the Social Security Administration. The Veteran was afforded several VA examinations concerning his claim, most recently in May 2011, as directed in the prior remand. In particular, the examiner conducted appropriate testing and evaluation, reviewed the claims file, and offered an opinion as to whether there was any current diagnosis of rheumatoid arthritis. There is no argument or indication that this opinion or rationale is inadequate. Further, there is no indication or argument that Veteran's condition has changed since the last VA examination, or that there is any more recent evidence to establish a diagnosis of rheumatoid arthritis, as opposed to polyarthritis. Under these circumstances, the prior remand directives were completed, and the medical evidence is sufficient with respect to rheumatoid arthritis. Another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not prejudicial or harmful to the essential fairness of the proceedings. The Veteran will not be prejudiced by a decision at this time. II. Analysis As noted in the prior remand, the Veteran contacted VA in November 2005 to request an increased rating for rheumatoid arthritis. The RO responded in January 2006 by informing the Veteran that his claim would be considered a petition to reopen a service connection claim for rheumatoid arthritis, which was last finally denied in a June 1975 RO decision. However, the June 1975 rating decision does not indicate that it adjudicated entitlement to service connection for rheumatoid arthritis, nor does it appear that the Veteran was advised that service connection had been denied in that decision. The record contains no other final decision on that issue. Hence, the Board is adjudicating the Veteran's claim on a de novo basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, arthritis will be presumed to have been incurred in or aggravated by service if it manifests to a degree of 10 percent within one year after separation from service, even if there is no evidence of such disease during service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where a condition is noted during service (or within the applicable presumptive period) but is not chronic, there must be evidence of continuity of symptomatology after separation from service. 38 C.F.R. § 3.303(b). Service connection requires evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under C.F.R. § 3.303(b), the nexus element may be shown by medical or lay evidence where there is competent evidence of continuity of symptomatology for a chronic disease listed in 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In August 1970, Armand Hoch, M.D., reported that he had seen the Veteran on one occasion in June 1970. The diagnosis was acute rheumatic fever, and he was referred to the VA hospital. The report of VA hospitalization in June 1970, shows the Veteran complained of migrating pains in the knees, ribs, elbows and ankles, with fever, aching, and swelling. The impression on admission was that the Veteran probably had rheumatic fever, but that other causes, such as polyarthritis had to be ruled out. The Veteran denied any other history of arthritis or rheumatic fever. During hospitalization the rheumatoid factor was slightly positive, but the rheumatoid titer was less than 1:20 in dilution. Following review of laboratory studies, it was determined that a diagnosis of rheumatic fever could not be made. He was diagnosed at discharge as having polyarthritis of undetermined etiology. VA treatment records from an arthritis clinic dated in August 1970 indicated that the Veteran was completely asymptomatic with no constitutional symptoms. He was again noted to be asymptomatic in February 1971, except for minor aches in the wrists and knees when exposed to cold weather. During a May 1975 VA examination, the examiner noted that a very thorough work-up during inpatient treatment in June 1970 resulted in a diagnosis of arthritis of undetermined etiology. The Veteran reported very few symptoms since that time, except for pain in the joints during cold weather. He denied any joint restrictions or deformities of any kind, and there was no physical evidence of deformity upon examination. The examiner diagnosed polyarthritis by history, at present no orthopedic deformities and no orthopedic diagnosis or condition. More recently, the Veteran has reported several times to VA providers that he was diagnosed with rheumatoid arthritis in 1971 and has had continuing joint symptoms since that time, although he was only treated with aspirin. He complained of pain and swollen joints (including the hands, wrists, ankles, knees, shoulders, feet, and lumbar spine), with stiffness in the morning and worsening pain during cold and damp weather. See, e.g., May and October 2006 rheumatology treatment records; see also August 2006, April 2007, and May 2011 VA examination reports. A May 2006 rheumatology clinic provider assessed a history of rheumatoid arthritis in the past, with no significant inflammatory arthritis on clinical examination but evidence of degenerative joint disease. There were no fibromyalgia tender points, but he could not rule out inflammatory arthritis because the Veteran was very symptomatic. X-rays and blood work were ordered. X-rays of the wrists and hands conducted in May 2006 were unremarkable bilaterally, with the exception of possible foreign body in the soft tissue on the right third distal phalanx. At a follow-up visit in October 2006, the rheumatology provider stated that there was a negative work-up for rheumatoid arthritis and no signs of inflammatory arthritis or erosions on the x-rays of the wrists and hands. The Veteran had noticed significant improvement in joint pains with taking Mobic, which was prescribed in May 2006. The provider assessed a history of rheumatoid arthritis in the past, but no signs of inflammatory arthritis at present. Blood work showed a negative rheumatoid factor and anti-CCP, but the Veteran was still having polyarticular complaints with pain and morning stiffness. X-rays of the foot were ordered for swelling in October 2006, which showed slight soft tissue swelling of the distal left foot but was otherwise normal, with normal appearing bones. The Veteran was examined by the same individual in connection with his service connection claim in August 2006 and April 2007. He complained of occasional pain, stiffness, and swelling in the wrists, hands, feet, knees, and lumbar spine. This examiner opined that these conditions were not likely representative of rheumatoid arthritis or atrophic arthritis or related to the service-connected polyarthritis but, rather, were due to degenerative age-related changes. In an April 2007 VA rheumatology follow-up visit (shortly after the VA examination), the provider noted that there was no clinical evidence of inflammatory arthritis. Blood work for rheumatoid arthritis also did not show any evidence of arthritis because the inflammatory markers were within normal limits. Upon physical evaluation and review of the diagnostic test results, the provider assessed a history of degenerative joint disease and chronic low back pain. Similarly, in October 2007, a VA rheumatology provider noted a history of osteoarthritis mostly of the hands and low back, and that extensive rheumatologic work-up in the past was negative for any inflammatory arthritis. The Veteran was again examined in May 2011, with similar complaints of pain, swelling, and stiffness in the feet, ankles, wrists, hands, low back, and shoulders. Upon review of the claims file and evaluation of the Veteran, the examiner opined that there were no findings on physical or x-rays that would be consistent with rheumatoid arthritis. Rather, the Veteran's x-rays were consistent with osteoarthritic as opposed to rheumatologic changes. The examiner noted that the treating rheumatologist had determined that the findings were not consistent with rheumatoid arthritis. The Veteran's joint complaints included pain that was greater in the morning and later in the day, as well as increasing pain with damp and cold conditions. The examiner stated that, combined with the x-ray findings, this was consistent with osteoarthritis. The examiner further stated that, as there were multiple joints involved, the diagnosis of polyarthritis was appropriate. Arthritis Although the Veteran has reported his belief that he has rheumatoid arthritis; there is no indication that he has the requisite expertise to make that diagnosis. The medical records reported above, show that the diagnosis of rheumatoid arthritis requires interpretation of laboratory and clinical findings. The Board must find that the Veteran lacks the competency to make a diagnosis of rheumatoid arthritis. In asserting that he has rheumatoid arthritis, the Veteran has not stated that he is relating a contemporaneous medical diagnosis. The Veteran's symptoms have not been used to support a later diagnosis by a medical professional of rheumatoid arthritis. The Veteran's report does not fall into any of the circumstances outlined in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); where a lay person's report would be sufficient to establish a current diagnosis. Indeed, the Veteran has expressed confusion as to whether he has polyarthritis, osteoarthritis, degenerative arthritis, or rheumatoid arthritis, indicating that he simply desires to be compensated for his symptoms. See November 2007 notice of disagreement. Further, the Veteran's opinion that he has rheumatoid arthritis, as recorded in several more recent VA treatment records, does not establish the existence of such disability either currently or in the past. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("[A] bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional.") Although a September 2008 VA primary care provider noted that the Veteran had rheumatoid arthritis, there is no indication that this statement was based on anything more than the Veteran's report that he had this disease. No pertinent laboratory studies or specific clinical findings were reported. All of the reported laboratory studies and clinical examinations since service have ultimately led to rheumatoid arthritis being ruled out. As summarized above, repeated testing and evaluation has been interpreted as negative for rheumatoid arthritis. Service connection may not be granted where there is no present disability shown. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the records dated within one year following the Veteran's separation from service and shortly thereafter indicate that while rheumatic fever was suspected, a diagnosis of polyarthritis, not rheumatoid arthritis or fever was ultimately found to be appropriate. Accordingly, the evidence is against finding that rheumatoid arthritis was demonstrated to a compensable degree within one year of service. The May 2011 VA examiner indicated that polyarthritis was still the correct diagnosis, as the Veteran had osteoarthritis or degenerative joint disease of multiple joints, and the evidence did not establish rheumatoid arthritis. The Board observes that the Veteran's polyarthritis is currently rated under Diagnostic Code (DC) 5009 for arthritis (other types), which is rated under the same criteria as rheumatoid arthritis under DC 5002. See 38 C.F.R. § 4.71a. In sum, the preponderance of the evidence is against service connection for rheumatoid arthritis. As such, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim must be denied. 38 C.F.R. § 3.102. ORDER Service connection for rheumatoid arthritis is denied. REMAND As noted above, the Veteran has complained of pain and swelling in multiple joints (including the hands, wrists, ankles, knees, shoulders, feet, and lumbar spine), with stiffness in the morning and worsening pain during cold and damp weather throughout the appeal. The May 2011 VA examiner indicated that this was due to polyarthritis, meaning osteoarthritis or degenerative joint disease in multiple joints. The VA examiner who reviewed the claims file and evaluated the Veteran in August 2006 and April 2007 opined that the Veteran had significant limitation of motion in the thoracolumbar spine and abnormalities in the hands and other joints; but this was unrelated to the service-connected polyarthritis and, rather, was age-related changes. However, that examiner did not include a supporting rationale. In contrast, the May 2011 VA examiner noted the Veteran's history of osteoarthritis or degenerative joint disease in multiple joints, with negative work-up for rheumatoid arthritis as discussed above, and opined that polyarthritis was the correct diagnosis because the Veteran had osteoarthritis in multiple joints. Here, the evidence indicates that the Veteran has polyarthritis with affected joints including the feet, ankles, knees, hands, wrists, shoulders, lumbar spine. The May 2011 VA examiner did not include range of motion measurements for the lumbar spine. Moreover, he did not adequately describe the degree of additional impairment in function during flare-ups for all affected joints. In this regard, the evidence should indicate any additional impairment of function due to pain or other factors in terms of degrees, to the extent possible. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For these purposes, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, 25 Vet. App. 32. VA's duty to assist includes providing a thorough and contemporaneous medical examination, which takes into account prior medical evaluations and treatment. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any pertinent, outstanding treatment records for arthritis, and to complete an authorization form for any non-VA records. Efforts to obtain records in federal custody should continue until they are obtained; unless it is reasonably certain that they do not exist, or that further efforts would be futile. If the Veteran fails to provide any needed authorizations, he should be advised that he may obtain the records and submit them himself. If any records cannot be obtained, the Veteran should be informed of the missing records, told of the efforts made to obtain them, and informed any further action that will be taken with regard to his claim, including its possible denial. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his polyarthritis in all affected joints. The entire claims file, including a copy of this remand, should be made available for review, and such review should be noted in the report. All necessary tests and studies should be conducted. The examiner should respond to the following: Measure and record all subjective and objective symptomatology for the Veteran's polyarthritis. Range of motion for each affected joint should be recorded, to include the feet, ankles, knees, hands, wrists, lumbar spine, and shoulders. Also, state any additional impairment for each joint during flare-ups or after repetition due to pain or other factors in terms of degrees of additional limitation, to the extent possible. 3. The RO/AMC should review the examination report to ensure that it contains the evidence and information requested in this remand. If it does not, an addendum should be requested. 4. If any benefit on appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs