Citation Nr: 1321459 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 00-07 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for arthritis of systemic or infectious origin, to include rheumatoid, pneumococcic and streptococcic arthritis. 2. Entitlement to service connection for hydrarthritis. 3. Entitlement to service connection for a disability manifested by arthralgia. 4. Entitlement to service connection for synovitis. 5. Entitlement to service connection for tenosynovitis. 6. Entitlement to service connection for myositis and myositis ossificans. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969, and from December 1973 until his retirement in September 1991. The issue of service connection for gum disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes this matter has been referred in both the October 2009 and September 2012 Board decisions, but no action has been taken by the AOJ. The issue of service connection for arthralgia 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. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has arthritis of systemic or infectious origin, to include rheumatoid, pneumococcic and streptococcic arthritis, hydrarthritis, synovitis, tenosynovitis or myositis and myositis ossificans. CONCLUSIONS OF LAW 1. Arthritis of systemic or infectious origin, to include rheumatoid, pneumococcic and streptococcic arthritis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). 2. Hydrarthritis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). 3. Synovitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). 4. Tenosynovitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). 5. Myositis and myositis ossificans were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the appellant in August 2007 and October 2012 letters. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, service department medical records following service, and the reports of VA examinations. A VA examination was conducted in November 2012, and an opinion regarding the existence of the Veteran's claimed disabilities was obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it is based on an examination of the record and a review of the claims folder. The opinion considered the pertinent evidence of record. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection is in effect for, among other disabilities, lumbosacral strain with degenerative disc disease L5-S1; fibromyalgia; radiculopathy of the right lower extremity; radiculopathy of the left lower extremity; bursitis of the left shoulder; degenerative joint disease and degenerative disc disease of the cervical spine; bursitis of the right elbow; residuals of a fracture of the right wrist; torn ligaments of the left thumb; and bilateral Achilles tendinitis. The service treatment records reflect the Veteran was seen on numerous occasions for various joint complaints, including some related to his service-connected disabilities as well as some related to joints for which service connection has not been established. In March 1982, he complained of polyarthralgia (right pointing finger, right knee, right big toe, left instep and cervical spine). It was indicated he needed an evaluation by a physician and blood work. Motrin was prescribed. On a report of medical history in August 1991, the Veteran related he had swollen or painful joints. The physician's summary noted a history involving the knees, a history of mechanical back pain and arthritis in the ankles. On the retirement examination in August 1991, the feet, lower extremities spine and musculoskeletal system were evaluated as normal. Medical records subsequent to service again disclose the Veteran has reported complaints involving the knees, shoulders, elbows, wrists, hands, hips, ankles and feet. Service department records indicate he was seen in March 2001 and had bilateral index finger and thumb stenosing tenosynovitis. The Veteran was most recently examined by the VA November 2012. It was reported the examination demonstrated no evidence of synovitis or effusions. It was also indicated he had multiple negative ANA and RF, as well as normal ESR. The examiner stated he was unable to find evidence of systemic arthritis, hydrarthritis, synovitis and/or myositis/myositis-ossificans. The Veteran asserts he has arthritis of systemic or infectious origin, hydrarthritis, synovitis, tenosynovitis and myositis and myositis-ossificans, and these disorders are related to service. The Board acknowledges the Veteran is competent to report this. Lay persons are competent to provide opinions on some medical issues; however, the specific issue in this case, the existence or etiology of his claimed disabilities falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). It is significant to point out that following the November 2012 VA examination, the examiner specifically found the Veteran did not have systemic arthritis, hydrarthritis, synovitis and/or myositis/ myositis-ossificans. Moreover, there is no current evidence the Veteran has tenosynovitis. Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As noted above, since the record fails to establish the Veteran has any of his claimed disabilities, service connection for arthritis of systemic or infectious origin, to include rheumatoid, pneumococcic and streptococcic arthritis, hydrarthritis, synovitis, tenosynovitis and myositis and myositis ossificans may not be granted. The Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding the existence of arthritis of systemic or infectious origin, to include rheumatoid, pneumococcic and streptococcic arthritis, hydrarthritis, synovitis, tenosynovitis and myositis and myositis ossificans. The Board finds, accordingly, that the preponderance of the evidence is against the claim for service connection for these disabilities. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for arthritis of systemic or infectious origin, to include rheumatoid, pneumococcic and streptococcic arthritis, hydrarthritis, synovitis, tenosynovitis and myositis and myositis ossificans is denied. REMAND The Veteran also asserts service connection is warranted for arthralgia. The November 2012 VA examination showed diagnoses of fibromyalgia, degenerative arthritis of the neck, shoulders, back, hands, hips, knees, ankles and feet, strain of the left elbow, bursitis of the right elbow, strain of the left wrist, residuals of trauma of the right wrist, osteoporosis of the lumbar spine and right hip; bursitis and tendinitis of the right shoulder; residuals of surgery in the hallux and adjacent digit of both feet; residuals of torn ligaments and scar of the left thumb; and bilateral lower extremity radiculopathy. The examiner commented there was evidence of arthralgia which was accounted for on the basis of the diagnoses listed above. It appears, therefore, that arthralgia was associated with both service-connected and nonservice-connected disabilities. It is not clear from the record whether any arthralgia that is present is solely attributable to disabilities for which service connection has previously been established, or is a separate entity. Under the circumstances, the Board is of the opinion additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the case to the examiner who conducted the November 2012 VA examination, and request that he provide an opinion concerning whether it is at least as likely as not that the Veteran has arthralgia that is not associated with his service-connected joint disabilities. If so, such symptoms should be specified, and the examiner should also state whether it is at least as likely as not that any arthralgia is related to service. The rationale for any opinion must be set forth. If the examiner who conducted the November 2012 VA examination is not available, schedule another VA examination and have the examiner respond to the questions set forth herein. 2. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs