Citation Nr: 1328726 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-05 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for osteoarthritis. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to August 1970. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension, coronary artery disease, osteoarthritis, tinnitus, and bilateral hearing loss. In November 2010, the Board remanded this case for further development. In a September 2011 rating decision, the Appeals Management Center granted service connection for ischemic heart disease, tinnitus, and bilateral hearing loss. This is a full grant of the benefit sought with regard to the issues of coronary artery disease, tinnitus, and bilateral hearing loss; therefore, these issues are no longer before the Board. In September 2012, the Board remanded this case for further development. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for hypertension 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 Competent evidence shows that the Veteran's osteoarthritis was not present during service or for many years after service; it is not otherwise attributable to the Veteran's period of service. CONCLUSION OF LAW Osteoarthritis was not incurred in or aggravated by service, is not due to a service-connected disability, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, complete notice was not issued prior to the adverse determination on appeal in that both the September 2005 notice letter and the January 2006 rating decision predate the Dingess decision and, therefore did not contain notice regarding disability ratings and an effective dates. However, fully compliant notice was later issued in a July 2006 communication, and the claim was thereafter readjudicated in the December 2006 Statement of Case (SOC). Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's November 2010 remand, VA sent the Veteran a November 2010 letter requesting that he identify any additional VA treatment records and that he complete and return an Authorization and Consent to Release Information form for any additional private treatment records. VA provided the Veteran with a medical examination in September 2011. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the Veteran's joint disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. In compliance with the Board's September 2012 remand, VA sent the Veteran a September 2012 letter requesting that he identify the providers of any and all treatment and/or evaluation he had received for high blood pressure and joint complaints since his discharge from service. The Veteran responded with copies of VA treatment records, but not records of treatment for hypertension or arthritis prior to 1990. As such, an addendum opinion was not necessary. Additionally, the most recent Supplemental Statement of the Case (SSOC) in January 2013, prior to the Veteran's submission of these VA treatment records, clearly shows consideration of VA treatment records from these VA Medical Centers including these records. As these records were considered in that SSOC, a waiver of initial RO consideration is not necessary. Thus VA has complied with the November 2010 and September 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Osteoarthritis As a chronic disability, osteoarthritis, is presumed to have been incurred in service if manifested or aggravated within one year of separation from service to a degree of 10 percent or more, provided that the Veteran has served a minimum of ninety days either during a period of war or during peacetime service after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309; 38 C.F.R. § 3.307. There are no medical records from the relevant presumptive period. +. Thus, the evidence does not show that the Veteran had osteoarthritis manifested to a degree of 10 percent or more within one year of his separation from service. Therefore presumptive service connection is not warranted. Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claims still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). In order to prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA treatment records note a diagnosis of osteoarthritis in the medical history, but do not specify the joints involved. The September 2011 VA examination found normal bilateral knees and right shoulder, bilateral elbow epicondylitis (but not currently), bilateral ankle tendonitis, left shoulder arthritis, and cervical spine degenerative arthritis. While only the Veteran's left shoulder and cervical spine have been diagnosed with arthritis, under Clemons v. Shinseki, an appellant's claim is presumed to be based on his symptoms and not limited to a specific diagnosis. 23 Vet. App. 1, 6 (2009). Thus the current disability requirement is met with regard to the above disabilities. With regard to the in-service occurrence, the Veteran's service treatment records include his May 1961 reports of widespread intermittent arthralgia since November 1960 and right elbow swelling and an impression of possible arthritis in July 1961, followed by reports of no further joint trouble in August 1961 with complaints of a little tenderness in his knees about one week later. Thus, the second Davidson requirement is met. As noted above, the third and final requirement for direct service connection is a nexus between the in-service arthralgias and the Veteran's current joint disabilities. The September 2011 examiner opined that the Veteran's current joint conditions were less likely as not related to his military service. In his accompanying rationale, the examiner noted that the Veteran's in-service arthralgias were self-limited in that their symptoms were consistent with repetitive use injuries, such as tendonitis, and they resolved without residuals. The current imaging on these joints was very benign, with findings only in the ankles, left shoulder, and spine. The examiner also noted that there was no evidence of any systemic inflammatory arthritis based on the radiological evidence, there was a 40 year span between the Veteran's in-service symptoms and his current conditions, and that his current conditions are consistent with aging, his lack of arthritis in additional joints was noted to be somewhat surprising based on the Veteran's age. The record does not contain a positive medical nexus opinion. Alternately, service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)(allowing for service connection based on a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Of the Veteran's diagnosed joint conditions, only arthritis is explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Thus, the Board will address the Veteran's assertion of continuous arthritis symptoms since service, noting that the current diagnoses include left shoulder arthritis and cervical spine degenerative arthritis, but not arthritis of additional joints. The Veteran has reported continuous arthritis symptoms since his initial complaints during service. See e.g., September 2005 statement. As a layperson, the Veteran is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The question then becomes whether his lay evidence of continuity is credible. In this case, the Veteran's lay statements regarding continuous arthritis symptoms since his initial complaints during service are contradicted by later service treatment records which show no joint abnormality and that his arthralgias (joint pain) had resolved. His August 1962 examination noted that his arthralgias in 1961 had been treated with antihistamines and Pabalate with good results and the Veteran had been asymptomatic since that time. No joint abnormalities were noted upon examination. The August 1965 examination also noted that the Veteran's arthralgias had resolved. Again, no joint abnormalities were noted upon examination. The October 1966 examination likewise noted no recurrence of the Veteran's elbow pain and no joint abnormalities. This examiner associated the Veteran's elbow pain with nervousness. In his September 1968 examination, the examiner noted that the Veteran's complained-of swollen or painful joints referred to his elbows, secondary to nervousness. At the time of his June 1970 separation examination, no joint abnormality was noted in any of the extremities, neck, or spine. Post-service, the first evidence in the claims file of a joint malady is the diagnosis of osteoarthritis among the Computerized Problems List in October 2007. Prior VA treatment records do not contain a diagnosis of arthritis, but note shoulder pain and back pain, deemed polyarthralgia. See December 2005 VA treatment record. Despite VA's repeated requests, the Veteran has not provided any evidence of treatment for arthritis in the intervening forty years. The Board notes that arthritis is not one of the diagnoses listed in the February 1990 discharge summary following his hospitalization for chest pain. The Board acknowledges that the absence of contemporaneous documentation of treatment, in and of itself, does not preclude a finding of continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the first documented post-service complaint of shoulder and back pain is 35 years after service (more than 40 years after the documented in-service complaints) and, perhaps more compelling, the Veteran did not report either condition at the time of his February 1990 hospitalization, which would have been after 20 years of continuous symptoms. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Thus, the Board does not find competent and credible evidence continuous symptoms since active service. Moreover, there is no competent medical opinion otherwise relating a current disability to active service. Therefore, service connection is not warranted. ORDER Service connection for osteoarthritis is denied. REMAND Unfortunately, a remand is necessary with regard to the Veteran's claim of service connection for a left wrist disability. Specifically, an addendum opinion is necessary. The Veteran has argued that his in-service blood pressure reading suggest prehypertension. He has submitted medical treatise evidence from the Mayo Clinic, which defines prehypertension as a diastolic pressure from 80 to 89 mm Hg. At the time of his October 1955 entrance examination, the Veteran's blood pressure was 146/80. Other in service blood pressure readings were as follows: 120/80 (December 1957 examination), 136/78 (August 1962 examination), 134/86 (August 1965 examination), 128/88 (October 1966 examination), 132/94 (September 1968 examination). At the time of his June 1970 separation examination, the Veteran's blood pressure was 130/82. The January 2011 VA examiner found that the Veteran's current hypertension was less likely than not incurred in or caused by the Veteran's military service. She reiterated this finding in a May 2011 addendum opinion, specifically noting that the Veteran did not have hypertension during his active military service, the Veteran was not treated within one year of his discharge, and that Agent Orange is not a recognized cause of hypertension. Unfortunately, this opinion is insufficient because it does not address the Veteran's contention that he had prehypertension in service which has since become hypertension. The Board is prohibited from basing decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Nevertheless, it does note that the Veteran's diastolic pressure reading at entrance was in the 80 to 89 mm Hg range. Therefore, the examiner is also asked to provide a medical opinion as to whether this reading evinces pre-existing prehypertension. If so, the examiner is asked to opinion whether such a pre-existing disability was aggravated by the Veteran's military service. Accordingly, the case is REMANDED for the following action: 1. Forward this claims folder to the examiner who performed the January 2011 VA examination for the purpose of obtaining an addendum opinion. If she is unavailable, another qualified healthcare professional may review the record and provide the necessary opinions. If necessary, schedule the Veteran for another VA examination. This examiner should specifically address the following questions: a. Does the Veteran's blood pressure reading of 146/80 at the time of his entrance show pre-existing prehypertension? i. If so, was this pre-existing prehypertension aggravated beyond the natural progression by the Veteran's active duty service? b. Do the heighten blood pressure readings in service [120/80 (December 1957 examination), 136/78 (August 1962 examination), 134/86 (August 1965 examination), 128/88 (October 1966 examination), 132/94 (September 1968 examination), and 130/82 (June 1970 separation examination)] suggest prehypertension? ii. If so, is it at least as likely as not that the Veteran's current hypertension is related to the in-service prehypertension? The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner must provide a rationale for each opinion reached. If the examiner is unable to provide an opinion without resort to speculation, he or she must provide reasons as to why this is so; and state whether the inability is due to the limits of scientific or medical knowledge or whether there is additional evidence that would permit the needed opinion to be provided. 2. Thereafter, the RO/AMC should readjudicate the claim in light of the additional evidence obtained. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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). ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs