Citation Nr: 1334729 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-29 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for pulmonary tuberculosis. 2. Entitlement to service connection for rheumatoid arthritis. 3. Entitlement to service connection for degenerative arthritis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran had active service for VA purposes from September 1942 to April 1946, to include recognized guerrilla service and participation in the regular Philippine Army. A portion of his service was also in a missing status. This matter is on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran testified before the undersigned Veterans Law Judge in August 2007. A transcript of the hearing is of record. The issues on appeal were previously denied by the Board in October 2007 on the basis that they had all been previously denied, and the Veteran had not presented new and material evidence sufficient to reopen the claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims, which vacated the Board's October 2010 decision and remanded the case for further development. The issues on appeal were subsequently reopened and remanded by the Board in June 2011for further development and are now ready for disposition. An appeal on the issues of entitlement to service connection for a duodenal ulcer and varicose veins was also perfected by the Veteran. However, in December 2012 and April 2013 decisions, he was granted service connection for those disabilities. That represent a full grant of the benefits sought on appeal, and those issues are no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Pulmonary tuberculosis, rheumatoid arthritis, and degenerative arthritis of the knees, lumbar spine and right shoulder were not shown in service or for many years thereafter, and are unrelated to active duty service. 2. Arthritis to joints other than the lumbar spine, knees, or right shoulder is not currently shown. CONCLUSIONS OF LAW 1. Pulmonary tuberculosis was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 2. Rheumatoid arthritis was not incurred in or aggravated by service, cannot be presumed to have been incurred in service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 3. Degenerative arthritis was not incurred in or aggravated by service, cannot be presumed to have been incurred in service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duty to Notify and Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to notify was satisfied by letters sent to the Veteran in February 2004 and July 2006 that fully addressed all notice elements. The February 2004 letter was sent prior to the initial RO decision. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The July 2006 letter also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. Although that was sent after the initial rating decision for the issues on appeal, the issues were readjudicated after the notice was sent, and a supplemental statement of the case was sent, most recently in July 2013. Prickett v. Nicholson, 20 Vet. App. 370 (2006). Therefore, adequate notice was provided to the Veteran. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Next, VA has a duty to assist a Veteran in the development of a claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service medical records and VA medical records. Further, the Veteran submitted treatment records from a private facility and his own statements in support of the claims. VA examinations and opinions were obtained in August 2011, and in January and February 2013. 38 C.F.R. § 3.159(c)(4) (2013). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA opinions obtained in this case are adequate. They are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claims to be adjudicated. Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4) (2013). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge in August 2007. This appeal was remanded by the Board in June 2011 to obtain VA opinions. The Board is satisfied that there was substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, VA obtained VA opinions from August 2011, and in January and February 2013, which the Board finds are adequate for adjudication purposes. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is seeking service connection for rheumatoid arthritis, osteoarthritis of the joints, and pulmonary tuberculosis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In some cases, service incurrence and a causal relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b), 3.309(a) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, active tuberculosis and arthritis are considered chronic diseases. 38 C.F.R. § 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2013). Service connection will also be presumed for chronic diseases if manifest to a compensable degree within one year after discharge. 38 C.F.R. §§ 3.307, 3.309 (2013). Finally, VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. § 1154 (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that service connection is not warranted for any of the issues remaining on appeal. First, the service medical records that are available do not show complaints of, treatment for, or any diagnosis related to arthritis in any joint or any diagnosis of rheumatoid arthritis. Regarding his tuberculosis claim, a discharge physical examination in March 1946 indicated some abnormal respiratory functioning. However, a chest X-ray was normal and tuberculosis was not clinically identified. Therefore, there is no clinical evidence that any of the claimed disabilities were present during active duty. The post-service evidence does not show symptoms related to rheumatism, degenerative arthritis, or tuberculosis for many years after the Veteran left active duty service. The first diagnosis of pulmonary tuberculosis was not until an X-ray in May 1987 indicated "moderately advanced" tuberculosis. Although there is a subsequent treatment note from March 1988 also showing a treatment history for tuberculosis, it did not indicate how long he had experienced tuberculosis or when it was first contracted. A diagnosis of rheumatoid arthritis was not noted until a December 1999 treatment note, which indicated that the Veteran had been evaluated for that disorder since 1985. The first indication of osteoarthritis was not until July 1988 and, importantly, that was not attributed to any specific joint. The Board emphasizes that earliest indication of any of the claimed disabilities was approximately 49 years after he left active duty. Therefore, a continuity of symptoms is not shown for any of these disorders based on the clinical evidence, which the Board finds persuasive. In addition to the documented post-service treatment records, the evidence includes statements by the Veteran and some of his friends and family members regarding symptoms they have observed. For example, two fellow soldiers who served with him in World War II submitted a statement in April 1990, where they recalled the Veteran suffering from osteoarthritis and "lung abnormalities" while in service. They also recalled observing the Veteran limping at that time. In two identical November 2001 statements, two people (one of whom was part of the April 1990 statement) recalled that the Veteran was suffering from rheumatism a "few years after he was in active service." In December 2001, two other friends of the Veteran submitted statements indicating that they knew him for several years, and acknowledged that he experienced rheumatism and tuberculosis. However, neither discussed how long the Veteran had been experiencing those symptoms. In an October 2002 statement, a woman who served with the Veteran recalled that he was exposed to a harsh environment during his service, and that such an environment limited his ability to fight diseases. She also recalled that he displayed symptoms of an occasional productive cough, chest and back pain, loss of appetite and general malaise. Finally, his daughter submitted a statement in March 2011, asserting that the diseases the Veteran has are related to his service in World War II. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the statements made by the Veteran and other people who knew him. McClain v. Nicholson, 21 Vet. App. 319 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran and those who knew him are competent in some cases to diagnose some disorders despite their lack of medical training. However, neither the Veteran nor the people who submitted statements are competent to diagnose tuberculosis, rheumatism, or osteoarthritis, as those are not disorders that may be diagnosed by unique and readily identifiable features. Therefore, the diagnosis and etiology of those disabilities is a determination that is medical in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, lay testimony may be used to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, none of the statements in the record support the argument that the Veteran has experienced continuous symptoms of tuberculosis, rheumatism or osteoarthritis since service. The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). First, regarding the Veteran's own statements, the Board notes that he has not specifically asserted that his symptoms have been continuous since service. At best, he has related his current disorders to in-service symptoms, but has not alleged that the symptoms were continuously persistent. The Board also cannot ignore the significance of the fact that the Veteran did not file his claim for service connection for almost 50 years after he left active duty. Shaw v. Principi, 3 Vet. App. 365 (1992) (delay in asserting a claim can constitute negative evidence that weighs against the claim). As for the statements made by other people, they have little probative value. Specifically, while some people stated in April 1990 and October 2002 that they saw the Veteran coughing, limping, and complaining of chest and back pain during service, none of them have asserted that those symptoms persisted since service. Moreover, the people who submitted statements in November 2001 appear to acknowledge that the Veteran's tuberculosis did not begin until after he left service. Finally, the statement submitted by the Veteran's daughter is of limited probative value, because it is not based on her own personal observations, but rather what she was told by the Veteran. Therefore, none of these statements are of any substantial probative value to the question of whether the Veteran's current symptoms have persisted since active duty. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disabilities to active duty, despite his contentions to the contrary. Specifically the Board places significant value on the opinions of VA examiners who evaluated the Veteran's symptoms in August 2011, and in January and February 2013. Regarding complaints of osteoarthritis, a VA examiner in August 2011 specifically diagnosed osteoarthritis of the knees and lumbar spine, and bursitis in the right shoulder. However, the examiner also opined that it was less likely than not that any of those disabilities was related to active duty service. In providing that opinion, the examiner noted that there was no indication of in-service injury to any of these joints, nor was there any indication of arthritis during active service. Importantly, the examiner also noted that the X-ray findings of deformity are consistent with bone degeneration related to age due to its gradual presentation and bilateral involvement. The Board also notes that the Veteran was not diagnosed with arthritis to any other joint. Moreover, he has not specified at any point where his arthritic symptoms are present. Accordingly, the Board is left to conclude that arthritis to any joint other than the lumbar spine, knees, or right shoulder is not currently shown. Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001) In January 2013, this same VA examiner provided an additional opinion that it was less likely than not that the Veteran's rheumatism was related to active duty. In providing that opinion, the examiner referred to the August 2011 opinion regarding the Veteran's osteoarthritis claims, and again noted that the Veteran's musculoskeletal findings were normal upon separation. The examiner also noted that rheumatism by definition pertained to inflammation of the joints that was migratory in character. In this case, the Veteran's medical history was not consistent with rheumatism, but that of typical osteoarthritis based on the nature of bone degeneration. As for the Veteran's pulmonary tuberculosis, a VA examiner reviewed the claims file in February 2013, and provided the opinion that it was less likely than not that disability was related to active duty service. In providing that opinion, the examiner explained that, although the Veteran displayed symptoms such as shortness of breath and fever in 1942, those symptoms did not necessarily indicate tuberculosis, and could be due to other disorders. Moreover, a chest X-ray in March 1946 was normal. Had there been tuberculosis, the examiner would have expected indications such as infiltration, cavitation, and fibrosis with traction. None of those were shown. Finally, the examiner noted that if tuberculosis had been present during service, his symptoms in 1988 would have been worse than observed, due to the apparent lack of treatment prior to that time. The Board finds that the opinions provided in this case are adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran and, as necessary, conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In arriving at this conclusion, the Board has also considered the statements made by the Veteran and others relating his claimed disorders to his active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, neither the Veteran nor any of the other people who provided statements is competent to provide testimony regarding the etiology of the claimed disabilities. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because tuberculosis, rheumatism and osteoarthritis are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's claimed disorders are found to lack competency. Accordingly, the Board finds that none of the claimed disabilities is shown to have a continuity of symptomatology since service, and none of the currently present claimed disabilities is shown to be due to or the result of a disease or injury incurred in or aggravated by service. The Board finds that the preponderance of the evidence is against the claims and the claims are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for pulmonary tuberculosis is denied. Service connection for rheumatoid arthritis is denied. Service connection for degenerative arthritis is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs