Citation Nr: 1328087	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  05-38 967	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for a chronic disease affecting the bilateral knees, hips, elbows, and ankles, to include as a result of an undiagnosed illness.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from June 1956 to April 1966, from January 1991 to April 1991, from June 1991 to November 1992, from May 1994 to September 1994, and from March 1996 to November 1996.  He served in Southwest Asia from July 1991 to September 1991.  He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) service, including a period of verified ACDUTRA service from May 1999 to September 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the case for additional development in July 2009, June 2011, and January 2013.  Although the Veteran submitted copies of additional VA treatment records subsequent to a June 2013 supplemental statement of the case without waiver of agency of original jurisdiction (AOJ) review, the Board finds the evidence is cumulative of the records previously considered.  See 38 C.F.R. § 20.1304 (2012).

The issues of entitlement to service connection for the residuals of prostate cancer and, in essence, for an increased disability involving the nerves of the penis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See July 2013 Informal Hearing Presentation and Veteran's statement received by the AOJ in February 2013.  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  


FINDING OF FACT

The Veteran's chronic disease affecting the bilateral knees, hips, elbows, and ankles is attributable to a known clinical diagnosis, degenerative arthritis, that was not incurred in or permanently aggravated by service nor proximately due to a service-connected disability.


CONCLUSION OF LAW

A chronic disease affecting the bilateral knees, hips, elbows, and ankles was not incurred in or aggravated by service or a service-connected disability nor may service connection be presumed, to include as based upon service in Southwest Asia.  38 U.S.C.A. §§ 1110, 1117, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.317 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in June 2003, September 2006, and July 2011.

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes incomplete service treatment records, a February 2012 VA finding that efforts to obtain additional service treatment records would be futile, service personnel records, VA treatment and examination reports, private treatment records, and statements in support of the Veteran's claim.  The development requested on remand in July 2009, June 2011, and January 2013 has been substantially completed.  Although records show the Veteran's claim for Social Security Administration (SSA) disability was denied in July 1997, there is no indication of any specific reason to believe the records may give rise to pertinent information to conclude that they are relevant.  See Golz v. Shinseki, 590 F.3d 1317, 1323  (Fed. Cir. 2010).  The Board finds there is no evidence of any additional existing pertinent records.  Further attempts to obtain additional evidence would be futile.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012).  The available medical evidence is sufficient for an adequate determination.  There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. 

Service Connection Claim

Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1) (2012).  The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service.  See Smith v. Shinseki, 24 Vet. App. 40 (2010).  

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the service record, the official history of each organization in which he served, the medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by that service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).

A veteran is presumed to be in sound condition, except for defects, infirmities or disabilities noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).  The presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of that examination.  Only conditions recorded in examination reports are noted and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of those conditions.  Crowe v. Brown, 7 Vet. App. 238 (1994).

A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  Aggravation may not be conceded where the disability underwent no increase in severity during service.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).  

Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Subject to various conditions, service connection may be granted for a disability due to an undiagnosed illness of a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War.  Among the requirements are that there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  The illness must become manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more following service, under the appropriate diagnostic code of 38 C.F.R. Part 4.  By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis.  There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification.  There must be a minimum of a six-month period of chronicity.  There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War.  38 U.S.C.A. § 1117 (West 2002 & 2012); 38 C.F.R. § 3.317 (2012).  If signs or symptoms have been medically attributed to a diagnosed, rather than undiagnosed, illness, the Persian Gulf War presumption of service connection does not apply.  VAOPGCPREC 8-98 (1998), 63 Fed. Reg. 56703 (1998).

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following):  (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in 38 C.F.R. § 3.317(a)(2)(ii) for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2)(i) (2012).  

The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii) (2012).  Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3) (2012).

Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4) (2012).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a 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 is required only where the condition noted during service is not shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  Continuity of symptomatology applies to those conditions explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).  

Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent.  Clyburn v. West, 12 Vet. App. 296 (1999).  Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)

Lay evidence presented by a veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board has the authority to discount the weight and probative value of evidence in light of its own inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  VA may favor one medical opinion over another, provided an adequate reason for doing so is provided.  Owens v. Brown, 7 Vet. App. 429 (1995).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 C.F.R. § 3.102 (2012).

The pertinent evidence of record shows that in December 2002 the Veteran asserted that he had joint pain including to the knees, hips, elbows, and ankles as a result of service.  In a November 2005 VA Form 9 he contended he had arthritis of the hips, knees, elbows, and ankles that were of the same etiology as his service-connected back and lower extremity disabilities.  In a December 2006 VA Form 646 the Veteran's service representative asserted service connection was warranted due to injuries sustained as a forklift operator and jarring of the body during active service.  

Service treatment records are negative for specific injury to the knees, hips, elbows, or ankles.  An April 1991 report of medical history noted a prior history of knee pain and an associated report of examination revealed a normal clinical evaluation of the lower extremities.  In a September 1994 report of medical history the Veteran indicated he had arthritis and occasional right knee locking.  An examination revealed a normal clinical evaluation of the lower extremities.  

VA treatment records dated in October 1994 noted the Veteran complained of pain including to the hips.  Laboratory testing revealed a negative rheumatoid factor.  An August 1997 VA Persian Gulf examination report noted a history of a left shoulder disorder, residuals of a fourth right metacarpal fracture, and cervical spondylosis.  There was no indication of joint pain.  A January 1998 report noted there was no history of migratory arthritis.  A January 1999 report noted polyarthralgia without opinion as to etiology.  

Service treatment records dated in January 2000 included diagnoses of disc herniation to the cervical spine.  It was noted that in August 1999 the Veteran had fallen while serving in El Salvador and that he had complained of pain to the neck, upper back, right hip, and right knee.  The injury was found to have been incurred in the line of duty in a July 2000 report.  An October 2001 medical evaluation board report included a diagnosis of osteoarthritis and also noted the Veteran had multiple persistent physical symptoms related to Gulf War service with an unspecified etiology after exhaustive medical evaluation.  

VA records show service connection has been established for residuals of a low back injury (40 percent), status post cervical fusion at C3-C7 with occasional bowel and bladder incontinence (30 percent), hemiparesis with ataxia of the right upper extremity (30 percent), hemiparesis with ataxia of the left upper extremity (30 percent), left shoulder recurrent dislocations with arthroscopic assisted repair (20 percent), hemiparesis with ataxia of the right lower extremity (20 percent), exaggerated tendon reflex of the left lower extremity (10 percent), residuals of a right little finger fracture (0 percent), hypertension (0 percent), chronic maxillary and frontal sinusitis (0 percent), and impotence (0 percent).  A total disability rating based upon individual unemployability is established from March 13, 2002, and special monthly compensation is established for loss of use of a creative organ.

On VA examination in September 2010 the Veteran reported having chronic pain to the hips, knees, ankles, and elbows for 15 to 20 years with daily pain.  He stated the pain was progressively worsening and more so over the past five years.  He denied any specific injury to these joints during active service.  The examiner noted VA treatment records included an October 2009 rheumatology service impression of osteoarthritis and bursitis of the right hip joint.  Physical and X-ray examinations were conducted and the examiner provided diagnoses including degenerative joint disease of the hips, knees, ankles, and elbows.  It was the examiner's opinion that these disorders were not likely related to an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War and also not likely related to his active military service.  

An April 2013 VA examiner found the Veteran's degenerative arthritis of the bilateral knees, hips, ankles, and elbows was neither caused nor aggravated by any service-connected disability.  As rationale it was noted that the current X-ray studies demonstrated degenerative arthritis consistent with similar age matched cohorts which indicated a natural progression of degenerative arthritis.  The current joint condition was noted to be a degenerative process in nature and was not likely related to a onetime event or injury but rather to reparative wear of the joint throughout the course of his life which had as much to do with his civilian occupational duties as his service duties.  It was further noted that none of the service-connected disabilities could result in generalized arthritis of the major joints as was the Veteran's case.  

Based upon the evidence of record, the Board finds the Veteran's chronic disease affecting the bilateral knees, hips, elbows, and ankles is attributable to a known clinical diagnosis, degenerative arthritis, that was not incurred in or permanently aggravated by service nor proximately due to a service-connected disability.  Arthritis is not shown by X-ray examination to have been manifest in these joints within one year of active service discharge.  Although in September 1994 the Veteran reported he had arthritis and occasional right knee locking, there was no evidence of arthritis or a lower extremity abnormality on examination at that time.  

The Board finds the Veteran is a combat veteran based upon his service in Vietnam, but that he has not asserted that he experienced any specific joint injury or disease during active service.  He is also shown to have served in Southwest Asia from July 1991 to September 1991 and his reports of exposure to oil fire smoke is consistent with the circumstances of his service.  The Board finds, however, that the September 2010 and April 2013 VA medical opinions in this case are persuasive and based upon adequate rationale.  While the April 2013 examiner stated the degenerative joint disease was due to reparative wear of the joint throughout the course of his life that had as much to do with his civilian occupational duties as his service duties, it was the overall opinion of the examiners that the present disability was unrelated to service or a service-connected disability.  The opinions are shown to have been based upon thorough examinations, thorough reviews of the evidence of record, and adequate consideration of the Veteran's statements.  

The Board further finds that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions of a nexus between symptoms manifest many years after service and his service in Southwest Asia.  He does not have the medical training to provide etiology opinions as to the claimed disability.  Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331.  As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). 

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the claim.


ORDER

Entitlement to service connection for a chronic disease affecting the bilateral knees, hips, elbows, and ankles, to include as a result of an undiagnosed illness, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs