Citation Nr: 1452875 Decision Date: 12/02/14 Archive Date: 12/10/14 DOCKET NO. 12-17 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for disability of the cervical and lumbar spine as secondary to service-connected sarcoidosis. 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected arthritis of the shoulders, hands, and knees. 3. Entitlement to an effective date prior to October 22, 2008 for entitlement to service connection for arthritis of the shoulders, hands, and knees. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to February 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision and a June 2012 Decision Review Officer's (DRO) decisions of the Department of Veterans Affairs (VA) regional office in Houston, Texas (RO). The May 2009 rating decision denied entitlement to service connection for arthralgias and the June 2012 DRO decision granted entitlement to service connection for degenerative arthritis of the shoulders, hands, and knees, as secondary to service-connected sarcoidosis, and assigned a 20 percent rating effective October 22, 2008. The Veteran timely appealed the denial of service connection for arthralgias and both the assigned rating and the date that the rating was assigned for degenerative arthritis of the shoulders, hands, and knees. The Veteran testified at a personal hearing conducted by the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. in April 2013, and a copy of the hearing transcript is of record. Additional medical evidence has been added to the record since the most recent Statement of the Case in August 2012 along with a waiver of RO review of the additional evidence. See 38 C.F.R. § 20.1304 (2014). The issue of entitlement to an initial evaluation in excess of 20 percent for service-connected arthritis of the shoulders, hands, and knees an appeal is REMANDED to the AMC/RO. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's degenerative arthritis of the cervical and lumbar spine is causally related to his service-connected sarcoidosis. 2. Severe sarcoid arthritis was diagnosed in October 1987. 3. Service connection for arthritis was denied by the Board in February 2004. 4. A new claim for service connection for arthritis was received by VA from the Veteran on August 2, 2004. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, the criteria for service connection for degenerative arthritis of the cervical and lumbar spine due to service-connected sarcoidosis have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2014). 2. The criteria for an earlier effective date of August 2, 2004 for the award of service connection for degenerative arthritis of the shoulders, hands, and knees have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.160(c), 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2013). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in December 2009, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection on a secondary basis. The letter informed the Veteran of what evidence and information he was responsible for, and the evidence that was considered VA's responsibility. Service connection was granted for degenerative arthritis of the shoulders, hands, and knees by rating decision in June 2012. Although the Veteran was not notified of the requirements to establish entitlement to an earlier effective date until the August 2012 Statement of the Case, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for an earlier effective date following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The appropriate notice has been given in this case with respect to the earlier effective date claim on appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159, see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Pertinent VA evaluations, with nexus opinions where needed, were obtained in this case on the service connection issue on appeal. A current examination is not needed with respect to the earlier effective date issue on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his April 2013 CO hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill the same duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the April 2013 CO hearing, the Veteran's representative, The American Legion, and the undersigned VLJ asked the Veteran questions about his arthralgia and arthritis disabilities. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims currently on appeal. The VLJ and the Veteran's representative also solicited information to identify any outstanding relevant evidence. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims Service Connection Claim The Veteran seeks service connection for disability of the cervical and lumbar spine as secondary to sarcoidosis. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson 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 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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). VA hospital records for August 1987 contain the diagnoses, based on X-ray studies, of sarcoidosis, mild degenerative joint disease of the lumbar spine with sacralization of L5, and arthritis. A September 1987 CT of the lumbar spine showed increased lumbosacral curvature with mild facet hypertrophy, sclerosis, and cystic degenerative changes of the sacroiliac joints bilaterally, as well as a mild central disc bulge at L4-L5. According to a December 1987 report from Rheumatology Consultants, the Veteran had sarcoidosis of the lung. The Veteran's sarcoidosis was suggestive of involvement of skeletal muscle, which was noted to be asymptomatic in most patients with sarcoidosis. According to a March 2001 statement from C. N. Bash, M.D., it was likely that the Veteran's sacroiliac joint arthritis was related to his sarcoidosis because sarcoidosis is a known cause of sacroiliac joint sclerosis at an early age and the Veteran does not have any other potential medical etiologic risks for sclerosis. An October 2002 report from College Station Medical Center reveals that X-rays of the neck showed degenerative changes of the cervical spine with degenerative disc narrowing at C5-T1. March 2003 VA treatment reports contain the diagnosis of degenerative joint disease and degenerative disc disease of the cervical spine. VA treatment records for June 2011 reveal a notation of degenerative joint disease affecting the back and hips. The diagnosis on VA evaluation in February 2012 was degenerative disc disease of the cervical and thoracolumbar spine. The examiner concluded that there was no medical evidence or medical literature to link the Veteran's cervical or lumbar spine to sarcoidosis. According to an April 2013 statement from a private physician with Rheumatic Disease Clinic, the Veteran had developed progressive degenerative changes in multiple areas, including his back, knees, and hands. It was noted that up to 40 percent of patients with sarcoid develop musculoskeletal symptoms and 25 percent develop an arthritis. Patients with early-onset inflammatory or traumatic joint problems, such as the Veteran, develop degenerative arthritis in those affected joints earlier in life than one would expect from just the natural history of late onset osteoarthritis. Based on his medical history, it was considered probable that the Veteran has sarcoid arthritis with secondary degenerative changes over time. Based on the above evidence, the Board finds the evidence at least in equipoise as to whether the Veteran's current degenerative arthritis of the cervical and lumbar spine is causally related to his service-connected sarcoidosis. By extending the benefit of the doubt to the Veteran, as required by law, the Board finds that service connection for degenerative arthritis of the cervical and lumbar spine as secondary to service-connected sarcoidosis is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Earlier Effective Date Claim The Veteran believes that service connection is warranted for service-connected degenerative arthritis of the shoulders, hands, and knees prior to 2008 because this disability is related to his service-connected sarcoidosis, which has been service connected for many years. A June 2012 DRO decision granted entitlement to service connection for degenerative arthritis of the shoulders, hands, and knees, as secondary to service-connected sarcoidosis, and assigned a 20 percent rating effective October 22, 2008, which was considered the date of claim. According to the applicable regulations, the date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2014). The initial claim for disability benefits was received by VA in June 1969. As a claim for benefits was not received within the year after discharge, the effective date for entitlement to service connection would be the later of the date of receipt of the claim or the date entitlement arose. According to an October 1987 statement from Pulmonary Disease Institute, the Veteran had sarcoidosis and severe sarcoid arthritis. Degenerative joint disease of the right shoulder was reported in VA treatment records in November 2001. The issue of entitlement to service connection for arthritis was denied by the Board in February 2004. The initial correspondence from the Veteran on the issue of entitlement to service connection for arthritis after the Board denial is a statement received by VA on August 2, 2004 in which he continues to claim entitlement to service connection for arthritis or arthralgia as secondary to service-connected sarcoidosis. This statement constitutes at least an informal claim for benefits as it is evidence of a desire to seek a benefit and identifies the benefits sought. See 38 C.F.R. § 3.1(p). Another claim for entitlement to service connection for arthralgias was received by VA in October 2008 which was treated as the only claim pending, however the August 2, 2044 claim had not been adjudicated. Therefore, an effective date of August 2, 2004 is warranted for entitlement to service connection for degenerative arthritis of the shoulders, hands, and knees. ORDER Entitlement to service connection for arthritis of the cervical and lumbar spine is granted. Entitlement to an effective date of August 2, 2004 for an award of service connection for degenerative arthritis of the shoulders, hands, and knees is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND Because the above grant of entitlement to service connection for arthritis of the cervical and lumbar spine as secondary to service-connected sarcoidosis could have an impact on the Veteran's claim for an initial evaluation in excess of 20 percent for service-connected arthritis of the shoulders, hands, and knees, these issues are inextricable intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consequently, the issue of entitlement to an initial evaluation in excess of 20 percent for service-connected arthritis of the shoulders, hands, and knees must be remanded for the AMC/RO to rate along with the newly granted arthritis of the cervical and lumbar spine. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will schedule the Veteran for an examination by an appropriate medical professional to determine the current severity of his service-connected arthritis, to include arthritis of the cervical and lumbar spine, the shoulders, the hands, and the knees. The claims folder, including a copy of this remand must be made available to the examiner in conjunction with the examination. The entire record, to include a copy of this remand, must be made available to, and reviewed by, the examiner. All indicated tests and studies, to include range of motion studies must be accomplished and the disabilities evaluated in accordance with VA rating criteria. A complete rationale for all opinions must be provided. 2. The AMC/RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.158, 3.655 (2014). 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the AMC/RO will readjudicate the issue of entitlement to an initial evaluation in excess of 20 percent for arthritis of the shoulders, hands, and knees with consideration of all of the evidence of record. The AMC/RO will also determine whether the veteran's now service-connected arthritis of the cervical and lumbar spine should be rated as part of the service-connected arthritis of the shoulders, hands, and knees, whether it should be rated as a separate disability, or whether separate compensable ratings should be awarded for each major joint or group of minor joints based on pain under Diagnostic Code 38 C.F.R. § 4.59 (2014). If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2013). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs