Citation Nr: 1751712 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 17-07 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been present to reopen a claim for entitlement to service connection for rheumatoid arthritis, also claimed as palindromic rheumatism and swollen joints, and previously claimed as arthralgias. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active duty service from January 1951 to August 1952 with additional service in the Army National Guard. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office, (RO). The Veteran was provided with a hearing before the undersigned Veterans Law Judge on August 2017. A copy of the transcript has been associated with the claims file and reviewed accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran filed a claim for service connection for arthralgias of the joints in May 1954. In a June 1954 rating decision, the RO denied service connection. The Veteran did not submit any additional evidence or an intention to appeal this decision and it was finalized one year later in June 1955. 2. The evidence added to the record since the final June 1954 rating decision is not cumulative or redundant of the evidence of record on file at the time and raises a reasonable possibility of substantiating the claim of entitlement to service connection for rheumatoid arthritis, also claimed as palindromic rheumatism and swollen joints, and previously claimed as arthralgias. 3. The evidence is in relative equipoise as to whether the Veteran's current inflammatory arthritis, also claimed as palindromic rheumatism and swollen joints, and previously claimed as arthralgias, is attributable to military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for rheumatoid arthritis, also claimed as palindromic rheumatism and swollen joints, and previously claimed as arthralgias. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 2. Resolving reasonable doubt in the Veteran's favor, inflammatory arthritis not otherwise specified was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria New and Material Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d). 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis New and Material The Veteran filed a claim for service connection for arthralgias of the joints in May 1954. In a June 1954 rating decision, the RO denied service connection. The Veteran did not submit any additional evidence or an intention to appeal this decision and it was finalized one year later in June 1955. The Veteran then filed the current claim to reopen for a trauma to the eyes, now claimed as cataracts, in November 2012. The June 1954 rating decision denied that claim on the basis that there was no showing of any currently diagnosed disability, as arthralgia only represented a symptom. The Veteran was notified of the decision on June 1954. He had until June 1955, to submit additional evidence or an intention to appeal. The Veteran did not submit any new evidence or claim until November 2012, nearly 57 years after the deadline. Therefore, the June 1954 rating decision became final. Since the Jun3 1954 rating decision was finalized, the Veteran submitted additional evidence, to include 2012 and 2013 medical records and letters from the Veteran's private physicians indicating treatment for various forms of arthritis and a November 2013 VA examination in which the Veteran was diagnosed with inflammatory arthritis of multiple joints confirmed by x-ray. These records and VA examination indicated that the Veteran's current arthritis was related to the joints pains documented in the service treatment records. These treatment records and VA examination are new because they had not been previously considered. They are also material because they address the issue of the existence of a current disability and the potential for a nexus. This at the very least meets the minimum threshold requirements under Shade, 24 Vet. App. at 110 for a finding of new and material evidence. As new and material evidence has been received, the claim of entitlement to service connection for rheumatoid arthritis, also claimed as palindromic rheumatism and swollen joints, and previously claimed as arthralgias, is reopened. Merits The Veteran contends that he currently suffers from arthritis of multiple joints that is the result of military service. In this regard, the Veteran has testified that he first began having complaints of swollen and painful joints in his first month of military service. He has stated that he was told by doctors that it was the result of rheumatic fever and rheumatic arthritis. The Veteran has also testified that he was diagnosed with palindromic rheumatism. The Veteran has stated that the symptoms of these conditions have continued since military service to present. A review of the Veteran's service treatment records reveals that on January 1951, the Veteran was admitted to the hospital for one week for "suspected" rheumatic fever. No disease process was found or noted. The Veteran had reported that he had been standing all day as a cook on the concrete floor and developed right ankle pain with slight swelling and tenderness. During the hospitalization, the Veteran's temperature remained at 99.2 degrees and never reached 100.4, which was noted as the clinical definition of fever. The Veteran's sedimentation rate was normal after initial check, his electrocardiography (EKG) was normal, all x-rays were normal, his heart size was normal, and the conclusion was "suspected rheumatic fever, no disease found." On May 1951 the Veteran was provided with a x-ray of both ankles and left shoulder, for which he had complained of pain and swelling, and all were noted as unremarkable with no diagnosis rendered. Again, on June 1951, the Veteran had complaints of painful shoulder, but the examination was totally normal with no orthopedic disease found. On October 1951 the Veteran had complaints of shoulder pain and generalized joint pains, but no diagnosis related to joint pains was found. The Veteran's exit examination, dated August 1952, was totally negative with no mention of any joint problems. The Veteran was provided with a VA examination following military service for his claim of arthralgias. The examiner noted that on May1954 at the VA Medical Center, the Veteran was admitted with a history of multiple painful joints. The Veteran continued to be seen on several occasions for complaints of joint pain, however, no definitive diagnosis was ever provided. The VA examiner did not provide a diagnosis for the Veteran's complaints. A review of the Veteran's post-service outpatient treatment records reveals that he has been followed for complaints of swollen and painful joints, variously diagnosed as arthritis, rheumatoid arthritis, palindromic rheumatism, and inflammatory arthritis not otherwise specified since the 1990s. In 2008, private records revealed an elevated uric acid level. On October 2012, the Veteran's treatment provider stated that the Veteran was diagnosed with rheumatic fever when he was admitted to the hospital in 1951 for swollen feet and ankles. In November 2012 the Veteran's private internist noted elevated sedimentation rate, but negative anti-nuclear antibodies (ANA) and rheumatoid factor. In December 2012 a letter from Dr. Mohammed stated that the Veteran was seen in the early 1990's for diabetes and pain in multiple joints, especially wrists and ankles, with no specific diagnosis for joint pains given. In January 2013, it was noted that Dr. Jabaley (a hand surgeon) evaluated the Veteran for a diagnosis of long-standing inflammatory synovitis of multiple joints. However, it appears that the diagnosis was rendered by the Veteran's history only. On March 2013 the Veteran's physician, Dr. Nowell, stated that the Veteran was initially diagnosed with palindromic rheumatism in the Army in 1951. The Veteran was provided with an additional VA examination on November 20, 2013. Upon a review of the claims file, subjective interview, and objective testing, to include x-rays and laboratory reports, the Veteran was diagnosed with inflammatory arthritis not otherwise specified. It was noted that this conditions affects the Veteran's right wrist, bilateral hands and fingers, and left foot and toes. The VA examiner opined that the Veteran's arthritis was as least as likely as not the result of military service as his current disability was consistent with the symptoms of swollen and painful joints documented in military service. Although the Veteran's laboratory reports did not confirm diagnoses of rheumatoid arthritis or palindromic rheumatism, the VA examiner nonetheless found that the Veteran's complaints were at the very least consistent with a diagnosis of an otherwise unspecified inflammatory type of arthritis. The Veteran was provided with an additional VA examination opinion on November 27, 2013. It is noted that this VA examination opinion was limited only to the question of whether the Veteran's complaints of swelling and pain in the ankles represented rheumatoid arthritis. In this regard, the VA examiner formulated the conclusion that the condition claimed as rheumatoid arthritis and or palindromic rheumatism was less likely as not incurred in or caused by the claimed in-service injury, event or illness, as the Veteran was never actually diagnosed with rheumatic fever in military service or any other rheumatoid illness, nor is he presently. The Veteran was last seen for treatment of his arthritis in January 2017, at which time it was noted that the Veteran had a history of palindromic rheumatism. However, this appears to be a mere transcription of the Veteran's own subjective history. Attached laboratory reports show that the Veteran's rheumatoid factor was less than 20 international units per liter or negative. The Board finds, upon resolving all reasonable doubt in the Veteran's favor, service connection for inflammatory arthritis not otherwise specified is warranted. The Veteran is shown to have a current diagnoses during the relevant appeals period of inflammatory arthritis not otherwise specified as per his outpatient treatment records and VA examinations. Additionally, it is noted that the Veteran had documented treatment in service for symptoms related to joint pain and swelling beginning in 1951. As an aside, it is noted that the Veteran has never been shown to have any diagnoses of other inflammatory arthritis illness, such as rheumatoid arthritis or palindromic rheumatism, as imaging and laboratory reports from the time the Veteran left military service to as recently as January 2017 have not shown the presence of the required criteria for diagnoses of those illnesses. As such, the discussion that follows will be limited to the diagnosis of inflammatory arthritis not otherwise specified as it has been confirmed and applied to the particulars of the Veteran's symptom profile. Here, there is both probative medical evidence for and against the contention that the Veteran's arthritis is etiologically related to his military service. The evidence against a finding of nexus has been provided via the November 27, 2013 VA examination, whereas evidence in favor of a finding of nexus has been provided via the assessment of the appellant's private treatment providers and the November 20, 2013 VA examiner. In this regard, the Board notes that the assessments and VA examinations were provided by trained and skilled individuals within the relevant medical fields and they thoroughly reviewed the Veteran's claims file and provided rationales in which they supported their respective opinions. Despite their differing conclusions, the Board finds that these differing opinions are essentially in equipoise. The November 27, 2013 VA found that the Veteran's current arthritis was not attributable to military service. However, it is noted that the VA examiner in this regard had limited his inquiry to whether the Veteran had the presence of rheumatic disease in service and currently and also limited his discussion to the Veteran's ankles, despite the fact that the Veteran had complained of multiple joints both in service and afterwards. The November 20, 2013 VA examiner, on the other hand, took all of the Veteran's joint complaints into account in both formulating the diagnosis of inflammatory arthritis not otherwise specified and relating such to the complaints of multiple joint pain and inflammation that had also begun during military service. As such, the November 20, 2013 VA examiner appeared to take a more comprehensive inquiry into the issue at hand and, thereby, rendered a diagnosis and nexus opinion that appears to be consistent with the facts of the case. Nonetheless, when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert, 1 Vet. App. at 49. Given the current diagnosis of inflammatory arthritis not otherwise specified, in-service treatment for swollen and painful joints, and the probative medical evidence in relative equipoise with regard to etiology, any reasonable doubt is resolved in favor of the Veteran and service connection for inflammatory arthritis not otherwise specified is granted. 38 U.S.C.A. § 5107 (b). (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, the claim for entitlement to service connection for rheumatoid arthritis, also claimed as palindromic rheumatism and swollen joints, and previously claimed as arthralgias, is reopened. Entitlement to service connection for inflammatory arthritis not otherwise specified, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs