Citation Nr: 1335172 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-19 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for arthralgia of the joints, to include elbows, wrists, knees, toes, and fingers, including as secondary to service-connected hepatitis C. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Sister ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to September 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran and his sister testified before a Decision Review Officer (DRO) in February 2009. The Veteran also testified at a Board hearing at the RO in Houston, Texas in August 2012. These transcripts have been associated with the file. The case was brought before the Board in December 2012, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording the Veteran new VA examinations. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was afforded VA examinations in February 2013 for his arthralgia claim. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issue of entitlement to a TDIU 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 Arthralgia of the joints was not incurred in, or aggravated by, active duty service, nor was it caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for arthralgia of the joints have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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, 3.326(a). The Veteran has been advised of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The Veteran has also been advised of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in February 2013 for his arthralgia claim. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the opinions that were reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran claims that he has arthralgia of the joints, to include elbows, wrists, knees, toes, and fingers, to include as secondary to his service-connected hepatitis C. In his May 1971 entrance medical examination report the Veteran had no abnormalities identified and he specifically denied any joint pain, knee trouble, foot trouble, or arthritis. In June 1971 he had soreness in his right trapezius. In a February 1972 record he complained of lower back pain. He was diagnosed with a muscle spasm. There is no follow up for a trapezius or back disorder. At the Veteran's separation examination in September 1972 there were no joint abnormalities noted and the Veteran was qualified for separation. Following separation from service in an August 2002 treatment record the Veteran complained of bilateral knee pain; x-rays were negative for defects. In October 2002 the Veteran reported shoulder and knee pain. In December 2002 the Veteran was diagnosed with degenerative joint disease of the bilateral knees, although no x-rays confirmed this diagnosis. In May 2004 x-rays of the left shoulder showed mild spurring and fragments in the soft tissues. X-rays of the bilateral knees showed no osseous or articular abnormalities. The diagnosis was probable degenerative or post-traumatic arthritis. X-rays from August 2007 showed a small right olecranon osteophyte of the right elbow. The knee x-rays were negative for abnormalities and the shoulders had no acute process. At his August 2007 VA examination the examiner opined that the Veteran may have an element of viral arthritis due to hepatitis C, although joint pain was not present on examination and there was no evidence of an inflammatory process or rheumatoid process. In a November 2007 addendum opinion the examiner stated it was not likely that his arthralgia were due to hepatitis. His rationale was that the joint pain was not present at the time of the examination and he could not prove or verify any element of viral arthritis. He also noted that the Veteran's arthralgia could be due to alcohol abuse. There were no signs of arthritis or other joint disease on x-ray, except for an osteophyte of the elbow. The Veteran was afforded VA examinations in February 2013 for his arms, hands, knees, wrists, feet, and ankles. The Veteran was diagnosed with patellofemoral syndrome of the bilateral knees and metatarsalgia of the 3rd, 4th, and 5th rays of the right foot. X-rays studies of the elbows, knees, wrists, feet, and ankles were normal. In a March 2013 addendum opinion the examiner noted that arthralgia is not a diagnosis of a disability. It is joint pain and is a symptom. The examiner again noted the Veteran had normal elbows, hands, wrists and ankles. His patellofemoral syndrome is knee pain that is a common condition. His metatarsalgia of the right foot is not a joint problem, but pain under the metatarsal heads. Accordingly, the Veteran does not have a diagnosis of a disability as he only has joint pain. The Board notes that the Veteran's past medical history has included references to arthritis; however this has never been verified by x-ray. See e.g., September 2012 VA treatment record. To the contrary, the x-rays have showed no evidence of arthritis on examination. See February 2013 VA examination reports. After reviewing the claims file, the Board finds that there is no competent evidence of record which shows that the Veteran currently, or since his appeal was filed, had a chronic disability for which service connection is warranted. Without a current diagnosis of a disability, the Board cannot grant service connection. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). The Board acknowledges the Veteran's contention that he has disorders of the elbows, knees, hands, wrists, toes, and other joints. See e.g., August 2012 Board hearing transcript. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In addition, while the Veteran is competent to state that he has pain in various joints, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the Board appreciates the Veteran's service, there is no competent and credible evidence showing that he has a joint disability for which service connection is warranted. The Veteran has produced no competent evidence or medical opinion in support of his claim that he suffers from such a disability, and the preponderance of the evidence is against the Veteran's claim. Accordingly, the Veteran's claim for service connection for arthralgia of the joints must be denied. ORDER Entitlement to service connection for arthralgia of the joints is denied. REMAND A TDIU may be assigned where the schedular rating is less than total, meaning less than 100 percent, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation - provided that, if there is only one service-connected disability, it is rated as at least 60-percent disabling, and if there are two or more disabilities, at least one is rated as at least 40-percent disabling and there is sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). At present, the Veteran meets the criteria for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) because he has just one service-connected disability, a psychosis, rated as 70 percent disabling and his hepatitis C is rated as 40 percent disabling. The Board previously remanded the claim for entitlement to a TDIU in the December 2012 decision. The prior, March 2004 private physician's opinion took into account non-service-connected disabilities, such as arthralgia, when finding the Veteran was incapable of employment. Following the Board remand, the March 2013 VA examiner noted that he could not provide an opinion as to entitlement to a TDIU as he was an orthopedic surgery examiner and the question needed to be resolved by discussion with mental health providers and general medical examiners. No such meeting was scheduled, nor was an opinion received regarding entitlement to a TDIU. Accordingly, the claim should be remanded for an opinion. Accordingly, the case is REMANDED for the following action: 1. Have an appropriate VA examiner provide an opinion as to the effects of the Veteran's service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should note that the Veteran is service-connected for psychosis with depression and memory loss, passive aggressive disorder associated with hepatitis C, hepatitis C, and herpes. Based on a review of the case and the claims file, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, acting alone or together, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why this is so. 2. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond 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). ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs