Citation Nr: 1330261 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-21 422 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for arthritis, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from January 1949 to May 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The instant matter has been the subject of prior Board remands. The case was most recently before the Board in June 2012, at which time the matter was remanded for procedural compliance and further development. In December 2012, after the matter was returned to the Board, the Board requested a medical expert opinion, as well as clarification of that opinion. Upon review of the record, the Board finds that all necessary development has been completed, to include compliance with the terms of its earlier remands. Thus, the Board may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran does not have arthritis that is attributable to military service or to a service-connected disability. CONCLUSION OF LAW The Veteran does not have arthritis that is the result of disease or injury incurred in or aggravated by active military service; arthritis may not be presumed to have been incurred in service, and it is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board finds that the Veteran was apprised of the evidence required to substantiate his claim of service connection for arthritis through letters dated in March and August 2007, June 2009, and June 2011. These letters advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The letters also included the notice elements required by Dingess for how VA determines disability ratings and effective dates, and the June 2011 letter provided the Veteran with the specific criteria for establishing service connection on a secondary basis. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the above-mentioned notice letters comply with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. As to any error with respect to the timing of notice in this case, any such error was effectively cured by the readjudication of the Veteran's claim after notice was provided. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes the Veteran's service treatment records (STRs), VA outpatient treatment records, private medical records, the report of a VA examination, examination addenda, a medical opinion, to include a clarification opinion, and statements in support of his claim. The Veteran has not identified any outstanding relevant evidence and the Board is aware of none. The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case. A review of the examination and opinion reports shows that the claims folder was reviewed and a thorough examination of the Veteran, to include x-rays, was undertaken. The medical opinion also takes into consideration the Veteran's specific arguments and discusses various articles purported to support the Veteran's claim. The Board finds that the examination and opinion reports contain sufficient evidence by which to evaluate the Veteran's claim of service connection and that the Board has properly assisted the Veteran in this regard. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by active military service if manifest to a compensable degree within a year of separation from qualifying military service. 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, for chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease. Id. at 495-97. Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2013). In the instant case, the Veteran has asserted that entitlement to service connection for arthritis is warranted because he was diagnosed as having rheumatoid arthritis after service, which he believes is related to service, and that he has, since that time, experienced arthritis symptoms. Alternatively, the Veteran contends that his service-connected posttraumatic stress disorder (PTSD) has caused a chronic worsening of his arthritis. By way of background, the Board notes that the Veteran's STRs are silent for complaints of, or treatment related to, arthritis or joint symptomatology. The Veteran's May 1951 separation examination report showed normal clinical evaluations of the upper and lower extremities, feet, and musculoskeletal system. Private treatment records dated in April 1959 show that the Veteran presented to Annapolis Hospital with complaints of diarrhea and watery stool. His past medical history included a diagnosis of colitis in July 1958 and the Veteran was noted to have pain and swelling in his toes, ankles, below both knees, left fingers, and right wrist, as well as tenderness in both elbows. A few weeks after his discharge from Annapolis Hospital, the Veteran presented to The University of Michigan Hospital with complaints of recurrent nausea, diarrhea, and watery stool. Examination of the Veteran showed enlargement of the proximal interphalangeal joint of the left fourth digit. The clinician recorded an impression of possible ulcerative colitis and possible arthritis of unknown etiology and the Veteran was seen for an arthritis consultation. X-rays of both hands were taken the following day, the report of which failed to reveal any evidence of arthritis. The joint spaces were well maintained and there was no definite juxta-articular demineralization or soft tissue swelling. A synovial biopsy was performed, which failed to reveal evidence of purulent arthritis. Other treatment records dated in April and May 1959 contained impressions of rheumatoid arthritis and in June 1959 it was noted that the Veteran's joints had flared and his hospital summary noted septic arthritis. The Veteran was admitted to the Ann Arbor, Michigan, VA Medical Center (VAMC) in June 1959. The narrative summary from that hospitalization period contained diagnoses of ulcerative colitis and rheumatoid arthritis, both improved. It was noted that the Veteran's rheumatoid arthritis had responded well to physical therapy and that his colitis remained in relative remission. The Veteran was again treated for ulcerative colitis in 1960, during which he elected to undergo a subtotal colectomy and end ileostomy. The record also contains private treatment records from M.L., M.D., dated from 1988 to 2010, showing treatment for both rheumatoid arthritis and ulcerative colitis. X-rays of the hands taken in May 2011 revealed moderate to severe osteoarthritis. The changes were suggestive of superimposed reactive type osteoarthritis and there were no findings convincing for inflammatory arthritis. In June 2011, the Veteran presented for a VA arthritis consultation to assess his progressively worsening hand and knee pain. The Veteran reported a history of colitis, which led to a hemicolectomy and permanent ileostomy, after which his inflammatory joint pain ceased. The Veteran complained of hand pain for the past several years and intermittent knee pain, both worse after periods of activity. Laboratory results revealed a negative ANA (antinuclear antibody) test and the clinician indicated that the Veteran's presentation was very suggestive of degenerative osteoarthritis. Findings against an inflammatory arthritis were noted to include normal inflammatory markers, a negative rheumatoid arthritis and cyclic citrullinated peptide (CCP) antibody test, and the lack of morning stiffness and typical radiological feature. The VA clinician indicated that the previous joint symptoms, extant prior to 1960, were incorrectly classified as rheumatoid arthritis, and were likely secondary to inflammatory bowel disease. The clinician noted that the Veteran's symptoms had resolved with treatment and that there were no clinical symptoms to suggest that inflammatory bowel disease was still active. The examiner thus concluded that inflammatory bowel disease-related arthritis was very unlikely. The Veteran was afforded a VA examination in August 2011, the report of which revealed no evidence of rheumatoid arthritis. The examiner noted associated central type erosive changes at the distal interphalangeal (DIP) joint, which were considered more consistent with reactive osteoarthritis than rheumatoid arthritis. The examiner found no evidence of rheumatoid arthritis in the hips, knees, or wrists, but diagnosed the Veteran as having osteoarthritis of both hands. In an addendum to the opinion, the VA examiner stated: "Veteran has significant degenerative osteoarthritis of both hands. This condition is not related to service connection and it is due to aging process." The examiner's stated rationale was that the Veteran's STRs failed to indicate degenerative joint disease in service, that the Veteran was 82 years old, and that degenerative changes were common due to the aging process. In another addendum, dated in July 2012, the VA examiner again stated that x-ray findings from August 2011 revealed no inflammatory reaction in the joints. The examiner diagnosed osteoarthritis and stated: "This condition is not caused by or the result of s[ervice-]c[onnected disability]." In December 2012, the Board referred the matter for an medical opinion for the purpose of determining the likelihood that the Veteran's currently diagnosed arthritis was related to service and/or whether it was at least as likely as not that the Veteran's service-connected PTSD had caused or made chronically worse any currently diagnosed arthritis. In January 2013, the Chief of Rheumatology for the Wilkes-Barre, Pennsylvania, VAMC prepared the requested opinion, stating that the claims folder and all provided medical records had been reviewed. The clinician noted the Veteran's history of ulcerative colitis and inflammation of his joints, with pain, swelling, and redness in 1959. The clinician stated that even though it was indicated that the Veteran had rheumatoid arthritis along with ulcerative colitis at that time, he most likely had inflammatory arthritis secondary to his colitis, as evidenced by the fact that his arthritis symptoms went into remission after his 1960 colectomy. Regarding the later notations of rheumatoid arthritis in the Veteran's private treatment records, the VA clinician noted that the diagnosis of rheumatoid arthritis was not clear and that a work-up was ordered. The clinician noted that the Veteran's private provider then changed the diagnosis to osteoarthritis in October 1999. The clinician further pointed out a complete rheumatological evaluation was performed in June 2011, the results of which were negative for evidence of inflammatory arthritis. Ultimately, the clinician opined that the Veteran did not have rheumatoid arthritis, but most likely had auto-immune inflammatory arthritis secondary to ulcerative colitis. The clinician determined that the Veteran's current complaints of joint pain were secondary to degenerative or osteoarthritis, which was not part of the disease process that the Veteran had experienced in the 1950s. The clinician further opined that the Veteran's osteoarthritis had no relationship to the Veteran's PTSD, as osteoarthritis occurs as part of the aging process because of degeneration of the cartilage in the joints. Upon review of the medical opinion, the Board determined that clarification and further explanation was required. The matter was thus returned to the clinician along with instructions to prepare an addendum explaining why it was felt that the Veteran "most likely had inflammatory arthritis secondary to his colitis" in the 1950s, as opposed to rheumatoid arthritis, to include specific reasons for why it was felt that the Veteran symptoms experienced in the 1950s were incorrectly classified as rheumatoid arthritis. The Board also requested the clinician to provide an extended rationale for his opinion that "osteoarthritis has no connection with PTSD" and discuss whether the Veteran's PTSD had aggravated his diagnosed osteoarthritis. The clinician was advised that it appeared that the Veteran was basing his belief that his currently diagnosed arthritis has been caused or aggravated by his service-connected PTSD on the fact that applicable regulations allow for a presumption of service connection for post-traumatic arthritis for former prisoners of war (POWs) and, effective October 10, 2008, for osteoporosis if a former POW has PTSD. Although the Veteran has not been shown to be a former POW, he argues that the applicable regulations "would lead one to believe there is a connection between PTSD and various forms of arthritis." The clinician was also referred to certain evidence submitted by the Veteran and accessed through VA's "National Center for PTSD" website, which included articles and references to studies suggesting an association between PTSD and certain forms of arthritis, to include rheumatoid arthritis. The Board noted that although VA does not endorse and is not responsible for the content contained in the "Published International Literature on Traumatic Stress" database, accessible through VA's "National Center for PTSD" website, the fact remains that published literature exists that suggests, at a minimum, that persons with PTSD are at an increased risk for the development of certain forms of arthritis than those without PTSD. In an addendum opinion prepared in February 2012, the clinician who prepared the January 2013 opinion clarified why he did not believe that rheumatoid arthritis was a correct diagnosis in 1959 or thereafter. The clinician noted that treatment records dated in April 1959 indicated that the Veteran's presentation was a typical presentation of an arthritis flare-up associated with a flare-up of ulcerative colitis. It was noted that the Veteran's left knee was aspirated twice and a biopsy was performed during the Veteran's hospitalization, which showed acute purulent synovitis with no evidence of underlying rheumatoid change. X-rays also failed to reveal evidence of rheumatoid arthritis. The clinician pointed out that the Veteran's arthritis symptoms resolved after he underwent a colectomy and later evaluations revealed only osteoarthritis. Regarding whether the Veteran's PTSD had caused or aggravated his diagnosed arthritis, the clinician stated that there are different types of arthritides, all with different pathogenesis, different presentations, and different physical, radiological, and laboratory findings. The clinician noted that rheumatoid arthritis has an autoimmune pathogenesis, and that although PTSD had been implicated in causing rheumatoid arthritis, osteoarthritis or degenerative arthritis has a totally different pathogenesis and is not caused by the autoimmune system. The VA clinician explained that as people age, they lose cartilage in their joints secondary to use and overuse, which leads to degenerative arthritis. The clinician went on to state that while there are certain factors that can have an adverse affect on the progression of degenerative arthritis, such as overuse, weight gain, genetic predisposition, and certain metabolic changes, there is no current evidence, to include any authentic studies, showing an association between PTSD and/or the autoimmune system and osteoarthritis at this time. Upon review of the evidence of record, the Board finds that service connection for arthritis on either a direct basis or a presumptive chronic disease basis is not warranted. The Veteran's STRs are silent for complaints or treatment related to arthritis. Indeed, in a September 2007 statement, the Veteran denied treatment for arthritis during service. The first indication of arthritis contained in his post-service medical records is in 1959 when it was suspected that the Veteran had rheumatoid arthritis, later thought to be inflammatory arthritis secondary to his colitis first diagnosed in 1958. Thus, there is simply no evidence to suggest that the Veteran's arthritis manifested itself as a chronic disease within one year of discharge from service. See 38 C.F.R. §§ 3.307, 3.309. There is also no evidence of a continuity of symptoms since service and no medical provider has linked the Veteran's arthritis present in 1959 or currently diagnosed directly to service. Notably, the Veteran's arthritis symptoms subsided after his 1960 surgery, as indicated by the evidence of record and the Veteran's own admission. In his September 2007 statement, he reported that his symptoms had subsided considerably following his 1960 surgery. The evidence also fails to suggest that the Veteran's current arthritis is related to or a continuation of the symptoms extant in 1959. The June 2011 VA arthritis consultation report noted that the Veteran's symptoms had resolved with treatment in 1960 and that there were no clinical symptoms to suggest that inflammatory bowel disease was still active, which weighed against a finding that the Veteran was then suffering from an inflammatory bowel disease-related arthritis. The August 2011 VA examiner also opined against a relationship between the Veteran's then-diagnosed osteoarthritis and service. The examiner relied on the lack of evidence in service suggestive of arthritis and the Veteran's age. The medical opinion also discussed the fact that osteoarthritis occurs as part of the aging process because of degeneration of the cartilage in the joints. In short, there is no basis upon which to conclude that the Veteran's arthritis is in any way directly attributable to service. Indeed, not only is there no evidence of arthritis in service, the Veteran has not indicated any specific event or injury in service to which he attributes his arthritis. Rather, the Veteran appears to rely on the fact that VA regulations allow for a presumptive service connection for POWs who later develop certain types of arthritis. Notably, the Veteran is not a former POW, nor does the Veteran suffer from traumatic arthritis, for which presumptive service connection is available. Thus, in light of the Veteran's own statements and the medical evidence of record, there is no basis to establish service connection for arthritis, as two crucial elements of service connection have not been shown. See Davidson, supra (service connection requires evidence of in-service incurrence or aggravation of a disease or injury and a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). In finding that service connection for arthritis is not warranted based on the lack of nexus evidence, the Board is cognizant of the fact that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Here, although the Veteran is competent to report having pain, the Veteran has not asserted that any pain or related symptomatology first experienced in service has persisted until today. Rather, by the Veteran's own admission, his arthritic pain did not begin until after he was diagnosed as having ulcerative colitis seven years after he was separated from service. Accordingly, an award of service connection based on continuity of symptomatology is not warranted. See 38 C.F.R. § 3.303(b). Further, although the Veteran believes his arthritis is due to service, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion, especially in light of the fact that the evidence fails to demonstrate the onset of that disability in service. See Jandreau, supra. Turning to the question of whether the Veteran's PTSD may have caused or aggravated the Veteran's arthritis, the Board has considered the Veteran's arguments and the evidence submitted in support of his claim, but finds that the objective medical evidence is against a finding of causation or aggravation. Notably, while there is evidence suggesting an association between PTSD and rheumatoid arthritis, the Board finds that the Veteran has not presented with rheumatoid arthritis. Although previously diagnosed as having rheumatoid arthritis, the evidence shows that that the diagnosis was erroneous. Further, the evidence fails to support a finding of rheumatoid arthritis during the current claims period. Indeed, although noted in some medical records, multiple clinicians have explained why the Veteran's presentation is not one of rheumatoid arthritis. Noted factors weighing against a finding of rheumatoid arthritis consist of a negative rheumatoid arthritis and CPC antibody test, x-ray findings revealing no inflammatory reaction in the joints, central type erosive changes at the DIP joint consistent with reactive osteoarthritis, and the lack of DIP erosions. Overall, the evidence establishes that the Veteran has osteoarthritis, not rheumatoid arthritis and, as explained in the medical opinion, there is no evidence to support a finding that the Veteran's PTSD has caused or aggravated his osteoarthritis. The opinion discusses the fact that osteoarthritis, unlike rheumatoid arthritis that may be associated with PTSD, is not caused by the autoimmune system or autoimmune system problem, but rather, is caused by age and the degeneration of the joints associated with use. The opinion also sets forth aggravating factors for osteoarthritis, to include overuse, weight gain, genetic predisposition, and certain metabolic changes, but the clinician explained that there is no current evidence, to include any authentic studies, showing an association between PTSD or the autoimmune system and the development of osteoarthritis. In consideration of the foregoing, the Board also finds there to be no basis upon which to award service connection for arthritis as secondary to the Veteran's service-connected PTSD. As to whether the service-connected PTSD has caused or made chronically worse the Veteran's arthritis, the Board finds particularly probative the medical opinions of record. Concerning the first aspect of secondary service connection, the August 2011 VA examination report and the medical opinion attributes the Veteran's osteoarthritis to the aging process and the medical opinion noted that there was no medical study or treatise evidence to support a finding that PTSD causes degenerative arthritis. The reviewer also explained that osteoarthritis or degenerative arthritis has a totally different pathogenesis than an arthritis potentially associated with PTSD. In other words, it appears from the expert's opinion that PTSD can have an effect on the autoimmune system, which in turn might indeed affect an inflammatory process such as rheumatoid arthritis, but the Veteran has not been shown to have that kind of arthritis. With respect to whether the Veteran's PTSD has made chronically worse the Veteran's arthritis, the opinion found no evidence to support a finding of aggravation. The clinician pointed out the factors that could have an adverse affect of the progression of osteoarthritis, but noted that there was no basis in medical literature or science to support finding that PTSD was an aggravating factor for osteoarthritis. In sum, there is simply no basis upon which the Board can find that the Veteran has arthritis that was caused or been made worse by his service-connected PTSD. Although the Veteran believes such an association exists, as noted above, etiology of dysfunctions and disorders is generally a medical determination and the Veteran is without the appropriate medical training and expertise to provide such an opinion, especially in light of the VA medical opinions explaining the medical complexities and conclusions to be made in this case. See Jandreau and Colantonio, both supra. For the foregoing reasons, the Board finds that the claim of service connection for arthritis must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection for arthritis. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013). ORDER Service connection for arthritis is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs