Citation Nr: 1751577 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-03 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. 2. Entitlement to service connection for lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status. 3. Entitlement to service connection for rheumatoid arthritis, claimed as bilateral knee/leg condition. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. On the Veteran's Substantive Appeal dated January 2014, he requested a hearing before a Veterans Law Judge. However, he cancelled his hearing request in March 2016. Accordingly, his request for a hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2016). This claim was remanded by the Board in June 2015. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The issue of entitlement to service connection for lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status, and entitlement to service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT The Veteran's rheumatoid arthritis, claimed as a bilateral knee/leg condition, is not etiologically related to the Veteran's active service, was not present to a compensable degree within one year of separation from active service, and is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for rheumatoid arthritis, claimed as a bilateral knee/leg condition are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2016); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Here, the RO provided the Veteran with an adequate pre-adjudication VCAA notice in regard to his claim by a letter dated in April 2010. With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran's service treatment records and DD Form 214 are on file. Additionally, there are no outstanding post-service treatment records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2), (3) (2016). 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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA examination for his knee/leg conditions in July 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2010 opinion, when taken together and with other evidence of record, is adequate to decide the case. The opinion sufficiently addresses the central medical issues in this case to allow the Board to make a fully informed determination and is supported by rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The examiner's opinion was predicated on a full reading of all available records, including the Veteran's service treatment records, post-service treatment records, as well as the Veteran's lay statements. Barr, 21 Vet. App. 303, 312; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2016). The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Governing Law for Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). To establish service connection, "the veteran 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, 381 F.3d at 1167. For the showing of a chronic disease in service, there is required to be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). As rheumatoid arthritis is considered to be a chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year from the day of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). III. Rheumatoid arthritis, bilateral knee/leg condition. The Veteran contends that his rheumatoid arthritis, claimed as a bilateral leg condition, is related to service. Notably, the record reflects that the Veteran was diagnosed with rheumatoid arthritis by Dr. S.A. in 1998. See July 2008 Private Treatment Records. The record reflects that the Veteran was treated for leg and knee pain during basic training. To that end, a September 1966 in-service note indicates that the Veteran's knee gave out, causing him to twist his ankle. The Veteran's X-rays were negative. See September 1966 Service Treatment Records. Additionally, post-service medical records reveal that the Veteran was treated treatment for his rheumatoid arthritis on several occasions. In July 2010, the Veteran was afforded a VA examination to address the etiology of his bilateral knee/leg condition. The examiner opined that the Veteran's rheumatoid arthritis, claimed as a knee and leg condition, was less likely than not related to service. To that end, the examiner indicated that the Veteran had several complaints of knee and leg muscle pain while in service, specifically basic training. However, he noted that there was no evidence of joint swelling or synovitis in the records to suggest an inflammatory cause. The examiner reported that the Veteran saw a physician with regard to a two month history of left knee pain in 1994, and an MRI revealed a meniscus tear, suggesting a possible injury. The examiner indicated that the Veteran was also reported to have degenerative joint disease (DJD) on plain X-rays. The examiner noted that the Veteran had knee swelling in 1997, and in 1998 he was diagnosed with elevated inflammatory indices and positive rheumatoid factor, and a clinical examination consistent with rheumatoid arthritis. The examiner indicated that rheumatoid arthritis may develop in the knees and that there may be delays between the onset of the knee involvement and the beginning of other joint complaints. However, the examiner opined that the knee pain the Veteran experienced in 1966 during boot camp and his subsequent documented DJD and meniscus disease in 1994 were not logical manifestations of a forme fruste rheumatoid arthritis that was diagnosed in 1998 and had continued to the time of the July 2010 examination. Therefore, the examiner opined that the gap in time between the pain he experienced during boot camp and his 1994 reported knee pain was too long as to causally relate the two. Additionally, the examiner indicated that the Veteran's 1994 report of knee pain had a two month duration, suggesting that it had a much more recent process, as opposed to being an extension of his 1966 condition. Further, the examiner opined that the plain X-rays and MRI from 1994 suggested a degenerative process, and not rheumatoid process. The examiner opined that the rheumatoid process most likely started in 1997 and was diagnosed in 1998. The Board finds that the evidence preponderates against the Veteran's claim. The Board notes that the Veteran had various reports of leg and knee pain in service. However, on the Veteran's July 1968 Report of Medical History, the Veteran indicated that he did not have any bone or joint deformity, and that his musculoskeletal system were normal. Further, he did not indicate that he had any issues with his knees or legs. Moreover, on clinical evaluation, the Veteran's knees and legs were found to be normal. See July 1968 Separation Examination. The Board finds that this evidence, particularly, the Veteran's self-report on separation, weighs against a finding of continuity of symptomatology. Following separation from service, the Veteran did not seek treatment for his knees or legs, and there is no evidence of any knee or leg disabilities within one year of his military service. In that regard, the Veteran did not complain of any knee or leg conditions for many years following his separation from service, with the first notation of record being in 1994. Moreover, there is no indication that the Veteran's disability occurred in service or manifested to a compensable degree within one year of separation from service. Arthritis or characteristic manifestations of the disease process were not noted at the Veteran's separation examination in July 1968, and the record contains no evidence within one year of separation from service with regard to a back condition. Thus, the Board concludes that arthritis did not manifest in service or within the one year presumptive period. 38 C.F.R. §§ 3.307, 3.309. The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In the instant case, the Veteran is competent to report injuries and/or symptoms in service as well as any symptomatology since service. Moreover, the Board has no reason to doubt his credibility. However, the Board finds that the Veteran is not competent to directly link any current disability to service. In this regard, the question of causation here involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinions are not competent evidence. See Jandreau, supra. The Board is grateful for the Veteran's service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a). Accordingly, the Veteran's claims for service connection for rheumatoid arthritis, claimed as a bilateral knee/leg condition is denied. ORDER Entitlement to service connection for rheumatoid arthritis, claimed as bilateral knee/leg condition, is denied. REMAND I. Tinnitus In July 2010 and December 2013, the Veteran was afforded VA audiological examinations. Neither examination reported complaints of tinnitus. However, the Veteran contends that he was unaware that he had tinnitus, as he did not know that tinnitus was a medical term for ringing in the ears, which the Veteran claims he had at the time of each examination. Moreover, the Board notes that on the Veteran's April 2010 VA 21-526 Application for Compensation, the Veteran indicated that his bilateral hearing loss and tinnitus began in January 1980. The record reflects that the RO granted the Veteran service connection for bilateral hearing loss in an August 2010. In light of the fact that the manifestations of the Veteran's service-connected hearing loss are claimed to have occurred at the same time as tinnitus, the Board finds that an new VA examination and opinion are necessary to address the etiology of the Veteran's tinnitus, to include as secondary to his service-connected hearing loss. B. Lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111 (West 2014). The term "noted" denotes only such conditions that are recorded in examination reports. 38 C.F.R. § 3.304(b) (2016). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to . . . manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. In the instant case, there is evidence that the Veteran had a back condition prior to service. However, the Board finds that no back conditions were noted on the Veteran's entrance examination. See August 1966 Clinical Evaluation; see also May 1966 Report of Medical History. Initially, the Board notes that on the Veteran's May 1966 Report of Medical History, he indicated that he had worn a brace for back support, had recurrent back pain, and that he had rheumatic fever at the age of 8. The Veteran's August 1966 clinical evaluation notes that the Veteran had low back pain approximately 2 to 3 times per year. See August 1966 Clinical Evaluation. However, no specific lumbar spine disability was noted on the Veteran's entrance examination. Prior to his time in service, the record contains various treatment records with regard to the Veteran's lower back. To this end, the record reflects that the Veteran was treated for recurrent lower back pain in March 1964. See March 1964 Private Medical Records. The treating physician noted that the Veteran had an anomaly of L5/S1 vertebra. The treating physician indicated that it was the opinion of a different physician that such anomaly could be the result of a syndrome in which a portion of the spinous process of the vertebra, which was unfused in this area, caused pressure on the spinal cord with subsequent nerve rout pain. See id. An April 1966 treatment note from Dr. J. W. indicates that the Veteran was treated for complaints of lower back pain in April 1964, which the Veteran reported were present since September 1963. See April 1966 Private Medical Records. The physician noted that all prior X-rays taken of the Veteran were normal. See id. The physician noted that the Veteran had no tenderness over his lumbar spine, but that film taken from an April 1964 X-ray revealed a congenital anomaly of the lumbosacral area with a mild scoliosis, with no evidence of spondylolisthesis. Additionally, the record reflects that the Veteran complained of several episodes of low back pain in August 1966. See August 1966 Private Medical Record. In July 2010, the Veteran underwent a VA examination to determine the nature and etiology of his claimed back condition. After review of the Veteran's claims file and an examination of the Veteran, the examiner negated a causal link by aggravation between the Veteran's lower back diagnosis and service. The examiner indicated that the Veteran had a history of chronic recurrent lower back pain prior to his entry into service. The examiner explained that the Veteran's entrance examination, as well as an April 1964 note from private orthopedic specialist Dr. C. concluded that there was no clear evidence that supported any past diagnosis of rheumatic fever or residuals; rheumatic fever does not involve the lumber spine; Dr. C. believed, as written in his April 1964 letter, that the Veteran's chronic lower back episodes were due to a mild lumbar rotoscoliosis; and the aforementioned conclusion was not reached at the orthopedic consultation at the Veteran's entrance to service in August 1966. The July 2010 examiner opined that, at the time of examination, there was no scoliosis present but that the Veteran had degenerative disc disease (DDD) at the L5/S1 vertebra. The examiner indicated that the diagnosis of DDD was not made before the Veteran's time in service or at his entrance examination. Moreover, the examiner noted that the Veteran did not indicate that he experienced any lumbar spine problems at separation from service. The examiner indicated that rheumatology notes from Dr. M., as well as the Veteran's other private medical records, were silent on lumbar disease, aside from a July 2007 entry. The examiner indicated that the lumbar spine is not part of the rheumatoid process and, thus, would not be expected to be part of the diagnosis of rheumatoid fever or residuals thereof. Moreover, the examiner noted that the presence of DDD by X-ray is common in people after the age of 40, even without traumatic aggravation or injury. Additionally, the examiner indicated that there was no lumbar spine related complaints of record during service. Rather, the first reported complaint was from July 2007. The examiner opined that it was not logical to conclude that the Veteran's current DDD had its onset in service as opposed to being part of the natural progression to DDD or due to post-service factors. As a result, the examiner opined that the Veteran's DDD was less likely than not caused or permanently aggravated by service. As shown above, the record reflects that the July 2010 VA examiner based his findings on the belief that the Veteran's lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status had its onset prior to service. However, as stated above, there is no notation on enlistment that the Veteran's lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status existed prior to service. The Board finds that an additional VA medical opinion would be of assistance in this case, to include as to whether the Veteran's current disability clearly and unmistakably existed prior to his entry into service and whether any preexisting disability clearly and unmistakably underwent no aggravation as a result of the Veteran's period of active duty. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an otolaryngologist, or other qualified medical examiner, to determine the nature and etiology of the Veteran's tinnitus. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should opine as to whether: a. It is at least as likely as not (a 50 percent probability or greater) that any current tinnitus had its onset in service, was caused by military service, or is related to military service, to include whether any injury due to loud noise exposure experienced therein contributed to his tinnitus. b. It is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus was proximately caused or aggravated by the Veteran's service-connected bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service treatment records, and lay statements. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should review the claims file and provide and opinion addressing the following: a. Whether the Veteran's lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status clearly and unmistakably preexisted the Veteran's military service. In responding to the question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. b. If so, he or she should state whether there was an increase in the severity of the preexisting lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status during service and whether an increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. c. If lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status did not clearly and unmistakably preexist the Veteran's military service, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that lumbar degenerative disc disease and degenerative joint disease with HLA B-27 positive genetic status had its onset during service or manifested to a compensable degree within one year after active service, or is otherwise etiologically related to his active service, to include symptomatology therein. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service treatment records, and lay statements. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address and to his representative, if applicable. It should also be indicated whether any notice sent was returned as undeliverable. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). These claims 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 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs