Citation Nr: 1320619 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-27 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for rheumatoid arthritis. REPRESENTATION Appellant (Veteran) represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active military service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision dated in June 2006 by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2012, the Board remanded this matter for additional evidentiary development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The record indicates that no additional relevant evidence has been added to either claims file since the most-recent supplemental statement of the case (SSOC) issued to the Veteran in October 2012. 38 C.F.R. §§19.31, 20.1304 (2012). FINDING OF FACT Rheumatoid arthritis was not shown in service; rheumatoid arthritis was not shown until many years after service; and the Veteran's current rheumatoid arthritis is not related to a disease or injury of service origin. CONCLUSION OF LAW Rheumatoid arthritis was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the claim to service connection decided here. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO submitted notice letters to the Veteran in August 2005 and July 2006 which provided full notification regarding what information and evidence is needed to substantiate the Veteran's claim of service connection. The letters addressed the information and evidence that must be submitted by the Veteran and the evidence that VA would obtain. The letters included provisions regarding disability ratings and effective dates. Moreover, though full notification was not provided prior to the rating decision on appeal, full notification was provided to the Veteran prior to the readjudication of his claim in the July 2007 Statement of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim); Mayfield, supra. VA has therefore met its duty to provide VCAA notification to the Veteran regarding the claim addressed in this decision. With regard to the duty to assist, the RO obtained the Veteran's service treatment records (STRs), relevant private and VA treatment records and reports, medical evidence from the Social Security Administration (SSA), and accepted into the record lay statements from the Veteran. Moreover, pursuant to the Board's January 2012 remand, VA provided the Veteran with a VA compensation examination into his claim (in March 2012). The report indicates a review of the Veteran's medical history and complaints, reflects clinical observations, and renders an assessment regarding whether the Veteran has rheumatoid arthritis and whether any such disorder relates to service. As will be detailed in the decision below, the examination, and the report and opinion regarding service connection, is adequate for decision purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In sum, the record is sufficiently developed for a determination at this time. The Board will rely on the record to determine the Veteran's claim to service connection. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. The Merits of the Claim to Service Connection The Veteran claims that he incurred rheumatoid arthritis during service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders such as arthritis are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In this matter, the record establishes that the Veteran currently has rheumatoid arthritis. As the Board noted in its January 2012 remand, the evidence was in conflict regarding whether the Veteran had rheumatoid arthritis. A VA treatment record from January 2005 reflects negative labs for rheumatoid arthritis. However, another VA treatment note from May 2005 acknowledges the negative tests but indicates that the Veteran's symptoms were characteristic of rheumatoid arthritis. A VA treatment provider indicated in September 2005 that the Veteran had seronegative rheumatoid arthritis, and another VA treatment note from February 2006 reflects a diagnosis of severe active rheumatoid arthritis. Significantly the March 2013 examiner, after indicating a review of the claims file noting the conflicting information, found that the Veteran did in fact have rheumatoid arthritis since a 2004 diagnosis. Nevertheless, the Veteran's claim must fail because Hickson elements (2) and (3) are unsatisfied here. With regard to Hickson element (2), the evidence of record does not indicate that the Veteran had rheumatoid arthritis during service. The Veteran's STRs are negative for rheumatoid arthritis and for any generalized joint disorder. His 1968 separation reports of medical examination and history indicate no chronic disorder as each is negative for complaints or findings of rheumatoid arthritis, of any joint disorder, of any auto immune disorder, or of any other type of systemic disorder. With reference to Hickson element (3), the ultimate question before the Board is whether the Veteran's current disability relates to service. For the Veteran to be successful in his claim, the evidence must show either that it is at least as likely as not that his current rheumatoid arthritis is related to a disease or injury that occurred in service, or that it was shown in the first post-service year. 38 C.F.R. §§ 3.303, 3.307, 3.309. If the preponderance of the evidence shows otherwise, the Veteran's claim must be denied. Though the Board finds the Veteran with the current disability he claims, the preponderance of the evidence is against the assertion that his rheumatoid arthritis relates to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Indeed, the record demonstrates that the Veteran did not incur during service chronic rheumatoid arthritis, did not develop the disorder within one year of his March 1968 discharge from active service, and did not experience a continuity of symptomatology of the disorder for many years following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The record is negative for complaints, treatment, or diagnoses of any joint disorder for approximately two decades after the March 1968 separation from active service. The medical evidence of record indicates that the Veteran, in the late 1980s, began seeking medical care for generalized joint pain. Further, the earliest post-service medical evidence addressing the specific disorder at issue here - rheumatoid arthritis - is dated in the mid 2000s, over 25 years following separation from active duty. Indeed, November 1974 and July 1980 reports of medical examination and history - conducted pursuant to the Veteran's reserve service - are negative for rheumatoid arthritis, and for any other generalized joint or auto immune disorder. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). When compared with the other evidence of record, including the paucity of evidence of treatment for an orthopedic disorder between service in 1968 and the late 1980s, the Board is left with no other conclusion but that the Veteran's service did not cause chronic rheumatoid arthritis that continued in the years following service to the present day. 38 C.F.R. §§ 3.303, 3.307, 3.309. Indeed, a continuity of symptomatology linking the Veteran's rheumatoid arthritis to service is not demonstrated in the record by the objective evidence. See 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 498 (1997). Rather, the objective evidence indicates that the Veteran had no chronic rheumatoid arthritis in service, and no chronic rheumatoid arthritis for many years following service. In assessing the issue of medical nexus between rheumatoid arthritis and service, the Board has reviewed the only medical opinion of record to address the claim, from the March 2012 VA examiner. In the report of record, the examiner indicated a review of the claims file. The examiner indicated a personal evaluation of the Veteran. The examiner provided a clear opinion stating that the Veteran's rheumatoid arthritis likely did not relate to his service. And the examiner supported the opinion with a rationale, stating that the aforementioned medical evidence of record demonstrates that the Veteran did not develop rheumatoid arthritis during service. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Hence, the only medical professional to address the Veteran's claim finds service unrelated to rheumatoid arthritis. This opinion, along with the absence of evidence indicating chronic in-service or post-service rheumatoid arthritis, comprises a preponderance of the evidence against the Veteran's claim that he incurred the disorder as the result of service. The Board has also assessed lay evidence of record. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran is competent to offer lay evidence of pain and limitation associated with his rheumatoid arthritis. The Board notes lay statements of record dated in the late 1990s, in which the Veteran complains of a long history of arthritis and gout. However, on the question of whether service and post-service symptomatology relate medically to his current rheumatoid arthritis, his statements are of limited probative value. The Veteran is not competent to render diagnoses or comment on the issue of etiology. The disability at issue in this matter involves an internal auto immune pathology that is beyond the capacity for lay observation. Its etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran's claim regarding the way in which rheumatoid arthritis developed is not persuasive. He does not have the training and expertise to provide probative medical evidence connecting service to the symptoms, or connecting the symptoms to the disorder at issue. The Veteran is not competent to state that what he may have felt in his body during service, or has felt since service, resulted in rheumatoid arthritis. On this essentially medical question, the medical evidence is of more probative value. And the medical evidence clearly indicates no relationship between the Veteran's service and rheumatoid arthritis. In sum, the record demonstrates that the Veteran currently has rheumatoid arthritis. However, the preponderance of the evidence of record demonstrates that the Veteran did not develop this disorder until many years following service, and that his disorder is unrelated to service that ended in 1968. Service connection is therefore unwarranted under 38 C.F.R. §§ 3.303, 3.307, 3.309. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Entitlement to service connection for rheumatoid arthritis is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs