Citation Nr: 1326426 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-15 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to service connection for catarrhal fever. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from May 1944 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the May 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). A personal hearing was held in August 2011 at the Columbia RO before the Decision Review Officer (DRO). The Veteran testified at this hearing, and a transcript of the testimony is in the claims file. During the current appeal and specifically in the November 2011 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge at the RO. Later in a November 2012 submission, the Veteran withdrew his hearing request. The Board will, therefore, proceed with appellate consideration of the Veteran's appeal. 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for rheumatoid arthritis 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 At no time during the current appeal period has the Veteran been diagnosed with catarrhal fever that is causally or etiologically related to his active duty. CONCLUSION OF LAW The Veteran does not have a diagnosis of catarrhal fever, nor has he been diagnosed with chronic residuals of a flu that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to render a decision has been accomplished. In this respect, through the June 2008 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the above-referenced notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned notice letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the June 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim addressed herein. All available service treatment records as well as all VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Indeed, records of the Veteran's post-service treatment through the VA Healthcare System in Columbia, South Carolina, through various private treatment facilities, including Laurens County Hospital and Piedmont Arthritis, and with numerous private physicians, have been associated with the claims file and were reviewed by the RO in connection with the Veteran's claim. The Board also notes that in August 2009, the RO sought to obtain any of the Veteran's outstanding records from the Social Security Administration (SSA). A response was received in August 2009 indicating that the Veteran's SSA folder had been destroyed. As such, the SSA decision, and any records relied upon, were therefore unavailable. Neither the Veteran, nor his representative, has otherwise alleged that there are any outstanding medical records probative of the claim that need to be obtained. The Board has considered whether a VA examination was required in connection with the Veteran's claim of service connection for catarrhal fever under the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4). In accordance with those provisions, a medical opinion or examination is required if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination was not triggered in this case. With regard to the Veteran's claim of service connection for catarrhal fever, although the record contains a service treatment report reflecting that the Veteran was treated for, and diagnosed with having "acute catarrhal fever" in January 1946, there is no competent evidence showing that the Veteran has, at any point since filing his May 2008 claim, suffered from, or received treatment for catarrhal fever or any chronic residuals of a flu arising therefrom; nor has it been shown that the Veteran suffers from any other disability that could reasonably be encompassed within the scope of his claim. Thus, the Veteran's own unsubstantiated allegation that he has this condition or that it is related to service is insufficient to trigger the need for a VA examination. Duenas v. Principi, 18 Vet. App. 512, 519 (2004); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability). Accordingly, an examination is not needed to fairly decide the claim for service connection for catarrhal fever. McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4) As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) evidence of the current disability; (2) evidence of the in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Subsection (a) also refers to "each disabling condition . . . for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. 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. See Gilbert, 1 Vet. App. at 54. The Veteran is seeking service connection for catarrhal fever. At the outset, the Board notes that the exact nature of the disability for which the Veteran currently seeks service connection is somewhat unclear. Indeed, in his May 2008 application, he stated only his desire to file a claim of service connection for "cat fever." He noted that he received treatment for this condition in 1945, but did not elaborate as to whether he currently suffered from this disorder or from any chronic flu-like residuals arising therefrom. A review of the Veteran's service treatment records reflects that he presented at sick call on January 26, 1946 with complaints of a mild cough, mild sore throat and malaise. He was seen again several days later, at which time he reported to have some congestion in his nose but to otherwise feel good. It does not appear from the Veteran's service treatment records that he received follow-up treatment for catarrhal fever after this treatment visit. The Veteran did not report to experience any lingering flu-like residuals at the March 1946 separation examination. Indeed, report of this examination was negative for any notations, complaints or signs of residual symptoms arising from his catarrhal fever, and the Veteran denied a history of illness or injury. In addition, evaluations of his cardiovascular and respiratory system were both shown to be normal, the Veteran had a temperature of 98.4 degrees, and results from his chest x-ray were negative for any abnormalities at the time of his separation. A review of the Veteran's post-service treatment records fails to reveal any treatment or complaints related to any catarrhal fever or any disability analogous to catarrhal fever. While the Veteran did report to experience some respiratory symptoms, namely shortness of breath on a moderate to heavy level of exertion at a September 2009 treatment visit with his private physician, L.W., M.D., these symptoms were ultimately attributed to the Veteran's bilateral asbestos related lung disease - a separate condition for which he has already been granted service connection for. See April 2013 rating decision. Also, while a May 2011 VA treatment report reflects an assessment of allergic rhinitis, there is nothing in the record that would characterize this as a manifestation or symptom of catarrhal fever or a disability congruent to catarrhal fever. Indeed, the remainder of the Veteran's post-service VA and private treatment records are completely absent for any complaints or diagnoses of, or treatment provided for catarrhal fever or any chronic residuals of the flu. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for catarrhal fever. With regard to this claim, the Board notes that the existence of a current diagnosed disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the greater weight of the evidence points to the Veteran not having a diagnosis of catarrhal fever or any chronic residuals of the flu. The Board notes that none of the VA treatment providers or private physicians have identified a current diagnoses of catarrhal fever, and a review of the entire medical evidence of record is completely absent for a diagnosis pertaining to catarrhal fever. Further, the Veteran has not proffered any evidence, to include his own lay statement, to suggest that he has, since filing his claim of service connection in May 2008, suffered from any symptoms that could be indicative of a catarrhal fever or chronic residuals of the flu. Indeed, at the August 2011 personal hearing before the Decision Review Officer (DRO), the Veteran testified that his catarrhal fever cleared up after a few days of treatment, and other than some occasional coughing, he did not have any problems with this condition afterwards. See August 2011 Hearing Transcript (T.), p. 7. Thus, while the evidence shows that the Veteran was diagnosed as having a catarrhal fever during his period of service, the evidence does not establish a currently diagnosed disability that could be reasonably encompassed within the scope of the Veteran's claim. Although lay evidence can be competent and sufficient to establish a diagnosis of a condition, the Veteran has not proffered evidence of a current disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (discussing when lay evidence can be competent and sufficient to establish a diagnosis of a condition). Because the evidence fails to establish that the Veteran has, at any point during the pendency of his claim, catarrhal fever, a disability analogous to catarrhal fever, or any other specific disability that could fall within the scope of this claim, the claim of service connection for catarrhal fever must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225; see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that it is the responsibility of VA to consider alternate current conditions within the scope of the claim). In finding that service connection for a catarrhal fever is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra; 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for catarrhal fever is denied. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103, 5103A (West 2002, Supp. 2012); 38 C.F.R. § 3.159. The Veteran contends that his current rheumatoid arthritis was incurred in service. At his August 2011 hearing, the Veteran testified that shortly after his discharge from service he began experiencing symptoms of rheumatoid arthritis, to include symptoms of swelling in his feet and legs, and soreness in his joints that would last a few days at time before clearing up. See T., p. 9. The Veteran further testified that he always believed his in-service diagnosis of catarrhal fever, and treatment he received for this condition, may have contributed or led to the development of his rheumatoid arthritis. See T., p. 9. A review of the service treatment records is clear for any treatment for, or diagnosis of rheumatoid arthritis. The records are also clear for any complaints, notations or signs of swelling or pain in the joints. However, as previously discussed above, the Veteran was diagnosed with, and treated for, catarrhal fever in January 1946. The Veteran's post-service treatment records reflect that he was admitted to the VA hospital in Columbia, South Carolina in March 1965 with complaints of "severe pain in his joints." In the Interim Summary report, the VA physician recited the Veteran's medical history as reported by the Veteran, and noted that the Veteran claimed to experience puffiness, swelling and pain around his fingers two years prior. According to the Veteran, his symptoms had progressively increased since this time and noticeably worsened spreading to his knuckles and knees in December 1964. The Veteran stated that he was hospitalized for these symptoms in February 1965, at which time he underwent steroid injections in his knee. Since his discharge from the hospital, the Veteran claimed to experience severe pain when moving around and when moving any of his extremities. On physical examination, the VA physician noted that the Veteran's knees were swollen upon admission to the hospital, and observed tenderness in the calf of the legs, more so on the right than on the left. He (the VA physician) also noted that the Veteran kept his knees stiff when he walked, which resulted in more of a "shuffling" type of gait. He also noted that the Veteran had difficulty in his knees when getting up and down. Based on his evaluation of the Veteran, the VA physician diagnosed the Veteran with rheumatoid arthritis that was severe in nature. Private medical records issued at Piedmont Arthritis Clinic, and dated from March 1981 to January 1999, reflect that the Veteran received ongoing treatment and care for his rheumatoid arthritis. The more recent VA medical records also reflect ongoing treatment for rheumatoid arthritis. See VA treatment records dated from October 2010 to April 2013. Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he has suffered ongoing symptoms congruent to rheumatoid arthritis, to include pain and swelling in his joints, since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In addition, based on the evidence submitted and testimony provided in support of his claim, the Board finds the Veteran credible with respect to his assertions. In this case, the Board notes that the Veteran has not been afforded a VA examination in connection with his claim for rheumatoid arthritis. The duty to assist includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A §§ 5103, 5103A (West 2002); 38 C.F.R § 3.159 (2012). Under the circumstances presented in this case, the Board finds that the Veteran has met the test established in McLendon. As discussed above, the Board has determined that the statements of the Veteran to the effect that he has experienced ongoing symptoms of swelling and pain in his joints since service are competent and credible. In addition, the post-service VA and private medical records reflect ongoing treatment for rheumatoid arthritis since March 1965. Therefore, the Board finds that a remand for a VA examination and medical opinion is necessary to determine whether the Veteran's rheumatoid arthritis is etiologically related to service. In addition, the record reflects that the Veteran has continued to receive treatment for this disorder at the VA Medical Center (VAMC) in Columbia, South Carolina. As this matter is being returned for additional development, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request relevant records pertaining to treatment the Veteran has received for his rheumatoid arthritis from the VA Medical Center (VAMC) in Columbia, South Carolina, from April 2013 to the present. All such available documents should be associated with the claims file, and all efforts to obtain the evidence must be noted it the claims folder. 2. Once these records have been obtained, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current rheumatoid arthritis. The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the January 1946 service treatment report documenting treatment for catarrhal fever. The examiner should also take note of VA and private medical records dated from March 1965 to March 2013 reflecting ongoing complaints of, and treatment for rheumatoid arthritis. Following a review of the record, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that rheumatoid arthritis had its clinical onset in service or is otherwise related to the Veteran's military service, to include his diagnosis of catarrhal fever in service and/or any treatment he received for this condition. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced symptoms of rheumatoid arthritis since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability is not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After completing the above, readjudicate the issue remaining on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). (CONTINUED ON NEXT PAGE) This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs