Citation Nr: 1343145 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 05-03 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for non-cervical spine osteoarthritis for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to December 1988. He passed away in mid-2003. At the time of his death, he was in receipt of VA compensation benefits. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. This matter was previously before the Board in November 2009 and November 2010 at which time it was remanded for additional development. A May 2012 Board decision was promulgated and, in April 2013, that decision was vacated. A later April 2013 Order from the United States Court of Appeals for Veterans Claims (Court) granted VA's motion to remand the appeal so that the Appellant's representative might review the claims file to offer argument. In an October 2013 response form, the Appellant asked that the Board proceed with adjudication following her representative's opportunity to review the claims file and submit additional argument. The Appellant's representative offered additional argument later in October 2013, and the issue is now ready for adjudication. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for chronic obstructive pulmonary disease and heart disease, for accrued benefits purposes; service connection for the cause of the Veteran's death; and entitlement to Dependent's Educational Assistance benefits pursuant to 38 U.S.C.A. Chapter 35 were remanded in May 2012 for further development, the claims file does not demonstrate that the mandated development has been accomplished at that time and those issues are not yet ready for Board adjudication. FINDING OF FACT There is no competent evidence of record establishing that arthritis in areas other than the cervical spine was related to service or to any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for osteoarthritis in areas other than the cervical spine, for accrued benefits purposes, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 , 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) . VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in November 2009 the Appellant was notified of the evidence not of record that was necessary to substantiate her claim. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. The above correspondence also provided the Appellant with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. Also of record and considered in connection with the appeal is the transcript of the August 2007 local RO hearing, along with various written statements provided by the Appellant and by her representative on her behalf. With regard to the August 2007 hearing, the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the issues on appeal were clarified and the etiology and continuity of the Veteran's asserted symptoms were addressed. The Veteran was offered an opportunity to ask questions regarding his claim. The Board, therefore, concludes that the duty under Bryant was met. Additionally, in an October 2013 Written Brief Presentation, the Appellant's representative states "What must have been copious CHAMPUS/TRICARE medical records from 1988 through death may still be available." Significantly, in December 1998, the Veteran notes that his VA medical treatment records from Birmingham, Alabama, be used to support his claim and records from that VA medical center have been obtained, as have private treatment records and any and all records submitted following the RO's request for evidence in support of the claim from the Veteran and the Appellant. While the representative suggest that "there must" be additional records, neither he nor the Appellant identified records which are not in the claims file and, in October 2013, the Appellant specifically stated that she had no additional evidence to submit in support of her claim. VA had attempted to schedule the Veteran for VA examinations in conjunction with his claim in December 2002 and February 2003. Unfortunately, the Veteran was not able to report due to other, much more pressing health concerns, and he then passed away in mid-2003, prior to any further arrangements being made. The Board finds that at this point, a retrospective medical opinion concerning the likely etiology of any non-cervical spine osteoarthritis is not necessary. In this regard, the evidence does not meet even the low threshold of indicating that such arthritis may be related to service as there is no medical evidence of record suggesting such a relationship and as continuity of non-cervical spine related orthopedic symptomatology (except perhaps in relation to the knees) is not shown nor alleged. Regarding potential osteoarthritis of the knees, the Board notes that at the time of the Veteran's death, service connection for chronic arthralgia of the knees had already been established; each knee rated as 10 percent disabling. These ratings are assigned under the same criteria that allows for compensable disability ratings for arthritis of the knees. See 38 C.F.R. § 4.71, Diagnostic Code 5003. Even if service connection could be awarded for knee osteoarthritis, separate compensable (i.e. 10 percent) disability ratings could not be assigned (where, as here, there is no objective evidence of instability or compensable limitation of motion of the knees) as this would amount to impermissible pyramiding. See 38 C.F.R. § 4.14. Consequently, a retrospective opinion concerning whether the Veteran may have had knee osteoarthritis related to service would serve no useful purpose. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Laws and Regulations Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. While an accrued benefits claim is separate from a Veteran's claim filed prior to death, the accrued benefits claim is derivative of the Veteran's claim; thus, an Appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Accrued benefits include those the Veteran was entitled to at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). For a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Pertinent to this claim, at the time of the Veteran's death, a claim was pending for service connection for a skeletal condition for "osteoarthritis as a secondary condition." Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, to include arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Appellant asserts that service connection is warranted for non-cervical spine osteoarthritis. The Veteran's service treatment records show that the Veteran fractured his little finger in March 1972 secondary to a sports injury but was found on August 1985 examination not to have any complications or sequelae. Additionally, he had surgery to both knees and experienced an inversion injury to his ankle. He also experienced a subacute ilio-lumbar ligament strain with low back pain. On May 1989 VA examination, the Veteran was diagnosed with chronic neck pain-cervical spine strain, facial neuralgia, chronic arthralgias of the knees, status post surgery, fracture of the left fifth finger and lower back injury. A July 1989 private progress note shows a review of systems, which includes a notation of fairly consistent neck pain and chronic ligament pain, with an arthritic component. In a September 1989 rating decision, service connection was granted for chronic arthralgia of the right and left knees, rated 10 percent for each knee; fracture of the left fifth finger, rated noncompensable; and low back injury, rated noncompensable. A March 1991 private progress note shows a diagnosis of cervical arthritis, with radiculopathy. A July 1992 private treatment record noted a history of lumbar pain syndrome and noted that the Veteran had been in a motor vehicle accident, no fracture was found. An April 1995 private progress note shows a diagnosis of cervical disc disease. A June 1997 private progress note shows that the Veteran was noted to have a history of degenerative arthritis of the spine. Musculoskeletal examination showed palpable spasms throughout his cervical spine, as well as his thoracolumbar spine. Examination of the extremities showed no cyanosis, clubbing or edema. The pertinent diagnosis was degenerative arthritis. A July 1998 private progress note shows a diagnosis of cervical spine degenerative disc disease. A January 2000 private progress note shows findings of degenerative changes of the extremities. A June 2001 private hospital history and physical includes a finding of degenerative changes of the extremities. The pertinent diagnostic impression was history of osteoarthritis. A March 2002 private hospital history and physical report indicates that the Veteran had a history of cervical spine degenerative disc disease. He was noted to have diminished range of motion of the neck. Mild degenerative changes of the extremities were noted and osteoarthritis was diagnosed. A separate March 2002 progress note indicates that the Veteran had degenerative and trophic changes of the extremities. In August 2002, the Veteran indicated a desire to "reopen" a claim for service connection for "skeletal system of osteoarthritis as a secondary condition." The Veteran did not specify where he had osteoarthritis. In February 2003, the Veteran informed VA that he was unable to travel to the VA Medical Center to assess his claimed arthritis. In October 2013, the Appellant, through her representative, noted that symptoms of arthritis. The representative further argued that the Veteran had a chronic back problem in service and evidence of continuity of symptoms. The representative attached treatise to include information regarding treatment of low back pain and a report on gait. Of note, entitlement to service connection for accrued purposes for arthritis of the cervical spine was granted in the May 2012 Board decision. Regrettably, however, the evidence does not demonstrate that non-cervical arthritis is related to service or to a service-connected disability. Service treatment records are silent as to any diagnosis of or treatment for arthritis. Non-cervical arthritis was not shown manifested to a compensable degree within a year of discharge - rendering service connection on a presumptive basis inappropriate in this case. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). No mention of arthritis is noted until June 1997 when degenerative arthritis of the thoracolumbar spine was found. Further, arthritis of the extremities was not diagnosed until four years later in June 2001. What mention there is in the claims file of arthritis overwhelmingly describes arthritis of the cervical spine, for which service connection has been awarded. While a low back disability was service connected, that low back disability was not arthritis, and the competent medical evidence does not indicate lumbar spine arthritis nor does the evidence suggest a link between the Veteran's service-connected low back disability and arthritis or between any service connected disability and arthritis. A Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy, the Appellant may also to attest to having witnessed her husband in pain or observe limitations due to such symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F. 3d at 1377. The Board acknowledges the Appellant's belief that the Veteran had arthritis other than cervical spine arthritis as a result of service. Lay testimony can be competent regarding features or symptoms of injury or disease when the features or symptoms are within his personal knowledge and observations. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, as lay persons without medical training, neither the Veteran nor the Appellant are qualified to determine whether the Veteran had arthritis which was secondary to service as such a disease may not be diagnosed by lay observation alone. See Jandreau, 492 F.3d at 1377 (a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). The Appellant is competent to report on her husband's back or finger disabilities, for which notably, service connection has been established. However, the Appellant does not have the necessary medical expertise to diagnose arthritis, or to provide an etiology opinion as to the cause of that arthritis. Moreover, lay statements in support of service connection remark almost exclusively on the Veteran's cervical spine pain, as opposed to other skeletal ailments. In fact both the medical evidence and the lay evidence suggests that the where arthritis was discussed at all, the majority of the time the Veteran's cervical spine was being discussed. Further it stands to reason that, where treatment and notation of cervical spine arthritis is shown, other diagnoses of arthritis would have also been provided in treatment notes, if found. There is no competent medical evidence which indicates any relationship between non-cervical arthritis and service or a service-related disability. X-ray evidence of arthritis is not demonstrated in the evidence of record for any disorder other than the cervical spine, which is service connected, and the knees, which would not lead to a higher disability rating for service-connected knee disabilities as such a rating would be prohibited pyramiding. See C.F.R. § 4.14 (2013) (the evaluation of the " same disability " or the " same manifestation " under various diagnoses is to be avoided). What limited records demonstrate degenerative changes in the hands do not note the left fifth finger specifically, nor is a medical opinion rendered as to the cause of those degenerative changes. While the Board recognizes the assertions of the Veteran's representative that the evidence implies the existence of lower back arthritis, the medical evidence does not demonstrate such arthritis and the Board must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision. Ussery v. Brown, 8 Vet.App. 64, 67 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The fact that the Board is unable to make medical conclusions additionally makes the treatise submitted by the Appellant's representative insufficient to demonstrate that the Veteran had arthritis secondary to service-connected injuries as such would require a medical determination; moreover, these records are too tenuous to be considered medical evidence in support of the claim where no competent medical expert has related such findings to the Veteran's own medical history. Finally, while the Appellant's representative correctly notes that X-rays are not necessary to demonstrate service connection, here the medical evidence of record simply fails to show that any arthritis, demonstrated by X-ray or otherwise, is related to service or to a service-connected disability. In sum, for the reasons described above, the evidence of record is against a finding that any non-cervical arthritis is related to service. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) ; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for non-cervical spine osteoarthritis for accrued benefits purposes is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs