Citation Nr: 1333040 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 05-35 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for a disability of the lower and upper extremities and the back manifested by joint pain, numbness, swelling, and tingling to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from November 1961 to November 1963, and from December 1990 to May 1991, with service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. This matter was previously before the Board in October 2009, and June 2011 and was remanded for further development. It has now returned to the Board for further appellate consideration. When most recently before the Board, this matter was styled as six different issues, with each issue related to a different body part or parts but all claimed as due to undiagnosed illness. In light of the VA clinical opinions of record, the six former issues have been re-characterized as one issue which encompasses the Veteran's complaints. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009). See also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim). In August 2013, the Veteran submitted additional written evidence and requested that his claim be remanded for RO consideration of the evidence. The Board finds that a remand is not warranted because, the Board, in the decision below, grants the Veteran's claim. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). FINDINGS OF FACT 1. The Veteran's symptoms to include joint pain, tingling (paresthesias), numbness, and swelling have been diagnosed as ankylosing spondylitis with peripheral arthritis. 2. The evidence is in equipoise as to whether the Veteran's ankylosing spondylitis with peripheral arthritis began in service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, ankylosing spondylitis which includes peripheral arthritis is due to active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in June 2004, July 2004, and March 2006. Given the fully favorable decision, the Board finds that any issue with regard to the timing or content of the notice provided to the Veteran is moot or represents harmless error. VA also has a duty to assist the Veteran in the development of the claim. The claim file contains the Veteran's service treatment records (STRs), and VA and private medical records and opinions. Again, given the fully favorable decision, the Board finds that any issue with regard to duty to assist is moot or represents harmless error. Legal criteria Service Connection in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Undiagnosed Illness Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). Presumption of soundness Under C.F.R. § 3.304 (b) the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. Preexisting Injuries A preexisting injury or disease will be considered to have been aggravated by active military, naval or air 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. 38 U.S.C.A. § 1153, 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the medical evidence pertinent to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision(s), there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Initially, the Board notes that the Veteran's symptoms of joint pain, tingling, and numbness, and swelling have been diagnosed as ankylosing spondylitis with peripheral arthritis. Thus, 38 C.F.R. § 3.317 is not applicable because his disability has been diagnosed. The Veteran has two periods of active service, from November 1961 to November 1963, and from December 1990 to May 1991, with reserve service during the period in between the two active service tours. The Veteran's STRs do not support a finding of ankylosis spondylitis with peripheral arthritis. The Veteran's September 1963 report of medical history for separation purposes reflects that he denied swollen or painful joints. An August 1979 USAREC Form 300 (Spear Worksheet) reflects that the Veteran denied painful or trick joints. The Veteran's September 1979 report of medical history reflects that he denied swollen or painful joints; his examination was normal. The Veteran's March 1983 report of medical history for quadrennial purposes reflects that he denied swollen or painful joints; his examination was normal. The Veteran's February 1988 report of medical history for "over 40" and quadrennial purposes reflects that he denied swollen or painful joints; his examination was normal. At the time of his entrance into his second period of active service, the Veteran reported on his December 1990 medical history report that he had previously had, or currently had, swollen or painful joints; a service examination report is not of record. At the conclusion of his deployment, the Veteran completed a 1991 report of medical history for re-deployment purposes; he reported that he had not had swollen or painful joints; his examination was normal. Post active service, a June 1991 private medical record reflects that the Veteran reported that since May, he had intermittent paresthesias involving the arms and legs. A February 1992 private medical record reflects that the Veteran reported that he had some low back discomfort, and for the past two weeks or so has noted pain in his left shoulder and left arm. The Veteran's June 1992 report of medical history for "over 40" and quadrennial purposes reflects that he denied that he had swollen or painful joints; his examination was normal. A June 17, 1992 private record reflects a fever of unexplained origin. A September 1993 private record reflects that the Veteran reported "some generalized aches and pains." The impression was myalgias of undetermined etiology. A March 1995 Persian Gulf Registry examination reflects that the Veteran reported that upon his return from the Gulf War, he started to develop problems with multiple poly arthralgias. He was diagnosed with "poly arthralgias of unknown etiology." An April 1996 private record reflects that the Veteran reported a tingling that came upon his chest and arm in 1991 or 1992. He also reported that he had back pain at times, numbing in his right hand and on the web of his right thumb which began about one year earlier, and pain in the arms, legs, shoulder and neck. May 1996 VA records reflect a diagnosis of ankylosing spondylitis. It was noted that the Veteran had reported "some myalgia and joint pain, elbows, back, and neck pain" with unknown etiology. A January 2010 VA examination report reflects the opinion of the examiner that the Veteran was diagnosed with ankylosing spondylitis in 1996; however the Veteran had constitutional symptoms with the ankylosing spondylitis of fever and night sweats, and that the fever of unknown etiology of 1992 is consistent with this. The examiner opined that it was not at least as likely as not that the Veteran's peripheral arthritis and enthesitis are causally related to active service, to include exposure to heavy atmospheric smoke in southwest Asia. An August 2011 VA examination report is also of record. The August 2011 VA examiner noted, in pertinent part, as follows: Ankylosing spondylitis usually affects the spine, however, it can be associated with a peripheral arthritis characterized by pain, stiffness, and swelling of peripheral joints. The examiner opined that it is not at least as likely as not that the Veteran's claimed disabilities of the back and the spine, and the peripheral arthritis of the right ankle, both feet, both hands, arms, and legs had their onset in service nor are they otherwise related to a disease or injury in the service. The opinion is based, in part, on the evidence which reflects that the Veteran had the onset of his complaints in the 1980s, prior to his second period of service. The claim file includes a December 2012 VHA opinion with a June 2013 addendum. The clinician opined that, although the evidence suggested that the ankylosis spondylitis may have begun prior to 1990; the evidence was not clear and unmistakable as to such. The clinician also noted that the Veteran's symptoms in 1992 of shortness of breath, low back pain, pain in the left shoulder and arm, aching upper anterior chest pain, fever, fatigue, and arthralgias could have been due to a flare-up of ankylosing spondylitis. She opined that ankylosing spondylitis can flare intermittently and worsen as part of the natural course of disease. She also opined that it is not possible to determine if the period of service did, or did not, precipitate worsening of the disease course. She noted that the diagnosis of ankylosing spondylitis is frequently delayed because early symptoms are nonspecific and there is no diagnostic blood test. The clinician, a staff physician with the Division of Rheumatology, further opined that "[s]ince both of the veteran's service tours are years prior to the unmistakable xray evidence of ankylosing spondylitis dated May 1996, it is at least as likely as not that the ankylosing spondylitis had its onset in the service. In sum, the evidence suggests that the Veteran's ankylosis spondylitis may have begun more than 20 years after his first period of service, and also prior to his second period of service. However, as noted above, a Veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. There is no 1990 examination report of record. Thus, the Veteran is presumed sound unless there is clear and unmistakable evidence otherwise. The evidence or record does not support the high standard of clear and unmistakable evidence that the Veteran's ankylosing spondylitis with peripheral arthritis existed prior to service and was not aggravated by service. The evidence reflects that within approximately three and a half weeks after his May 1991 separation from service, the Veteran sought treatment for intermittent paresthesias involving the arms and the legs, which he noted he had had since May. The Board has also considered the opinion of the VA rheumatologist who provided the VHA opinion, that there is frequently a delayed diagnosis of ankylosing spondylitis due to nonspecific early symptoms. The Board finds that the December 2012 VHA opinion with a June 2013 addendum is probative of the issue as it considers that there was no clear and unmistakable evidence of a preexisting disability, the pertinent service treatment records, and private and VA records, and provides an adequate rationale. The evidence is in equipoise as to whether the Veteran's disability manifested in service. In giving the benefit of the doubt to the Veteran, the Board finds that service connection for ankylosis spondylitis which includes peripheral arthritis of the joints is warranted. 38 U.S.C.A. § 5107, 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for ankylosing spondylitis which includes peripheral arthritis of the joints is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs