Citation Nr: 1751822 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-41 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a joint disorder, including gout/inflammatory polyarthropathy. 2. Entitlement to service connection for inflammatory polyneuropathy. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from October 1980 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board initially remanded these issues in June 2013 and March 2017, for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial of both issues in an August 2017 supplemental statement of the case (SSOC). The matter is now before the Board again. The Board notes that the Veteran presented testimony before a Veterans Law Judge in November 2012. The Veterans Law Judge who conducted the hearing is no longer employed by the Board. In October 2016, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran was provided 30 days from the date of the letter to make his election. Absent any indication from the Veteran, the Board will proceed with adjudicating the claims. The Veteran did not submit any correspondences within 30 days of the date of the letter. Thus, the Board will proceed with adjudicating the Veteran's claims. FINDINGS OF FACT 1. Competent and probative evidence demonstrates that the Veteran's joint disorder, including gout/inflammatory polyarthropathy, did not become manifest until many years after discharge from service and is not shown to be etiologically related to service. 2. Competent and probative evidence demonstrates that the Veteran's inflammatory polyneuropathy did not become manifest until many years after discharge from service and is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a joint disorder, including gout/inflammatory polyarthropathy, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b), 3.307, 3.309, 3.310 (2016). 2. The criteria for establishing entitlement to service connection for inflammatory polyneuropathy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b), 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The examinations and opinions, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim, and the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. Lastly, the record reflects substantial compliance with the Board's June 2013 and March 2017 Remands. See Stegall, 11 Vet. App. 268, 271 (1998). II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires competent evidence showing: (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 v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that 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; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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 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."). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). In order to show a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2016). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A. Joint Disorder The Veteran contends that he is entitled to service connection for a joint disorder, including gout/inflammatory polyarthropathy. He asserts that this claimed condition is a result of exposure to asbestos and mercury while in service. As the evidence of record shows that the Veteran was a boiler technician in service and was exposed to mercury while calibrating thermometers aboard ships, the Board finds his report of exposure to asbestos and mercury to be credible and consistent with his military duties. The Veteran's service treatment records do not reflect that he suffered a chronic joint disorder during active military service. During his November 1979 entrance examination, the Veteran stated that he was in good health. The service treatment records are devoid of any evidence of injury related to the joints or complaints of symptomatology associated with the joints, and according to the Veteran's January 1990 release from active duty examination report, the Veteran was deemed to be in good health. As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the joints at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran suffered from a chronic disability of the joints, including gout/inflammatory polyarthropathy, or chronic symptomatology, within one year of his separation from active duty. In a February 2007 private treatment record, a private physician with the initials of M.M. reported that the Veteran was referred to him for evaluation of polyarthritis of approximately two years duration. Dr. M.M. further noted that the Veteran reported having onset of pain, swelling, warmth in his right great toe about two years ago and was diagnosed with presumptive gout. Thus, the onset of the Veteran's claimed joint disorder was in 2005, approximately 15 years after his separation from active service. In April 2010, VA received an undated letter from a private physician with the initials of N.B. Dr. N.B. indicated that had been seeing the Veteran for the last two years for chronic complaints pertaining to, in relevant part, arthritis and gout. He also noted that the Veteran's past medical history included heavy metal poisoning exposure as well as asbestos exposure, both exposures occurred while in service. Dr. N.B. further noted that the Veteran had multiple complaints of severe arthritis and pain; however, neurologically, he was intact. At the conclusion of the letter, Dr. N.B. stated that it was his medical opinion in research as well as understanding the nature of heavy metal exposure that the Veteran's gouty arthritis as well as the auto-immune disorder is likely as not caused by mercury exposure while in the military. The opinion provided by Dr. N.B. is inadequate, as it is unclear as to whether he reviewed relevant service treatment records. Moreover, Dr. N.B. did not provide a rationale for the opinion. Thus, the Board finds the medical opinion of Dr. N.B. to have limited probative value. On VA examination in June 2010, the Veteran reported that his gout condition had existed for 30 years. The examiner diagnosed the Veteran with gout, and concluded that there was not enough supporting evidence in medical literature to link gout with mercury exposure. On VA examination in August 2010, the Veteran's medical history was reviewed. The examiner noted that the Veteran had been diagnosed with polyarthropathy and gout. The Veteran again reported that these conditions had been present for 30 years. The examiner, however, made note of the contrasting February 2007 private medical record from Dr. M.M. that stated that the Veteran was referred to him for evaluation of polyarthritis of approximately two years duration. The examiner further noted that at the time, the Veteran was working as a police officer, had not been incapacitated in the 12 months prior to his claim, and had no joint replacements. In an April 2013 addendum opinion to the August 2010 VA examination, the examiner opined that there was no etiological relationship between the Veteran's polyarthropathy (inflammatory/gouty arthritis) and asbestos and/or mercury exposure. The examiner noted that there is no relationship between asbestos and arthritic conditions. Further, mercury-poisoned patients typically have a severe intention tremor of the fingers and hands, making handwriting difficult; tender and inflamed gums, excessive salivation, and swollen salivary glands, as well as a change in personality and psychiatric symptoms. There are no scientifically valid reports of human arthritidies as a result of mercury poisoning. On VA examination in April 2016, the Veteran's medical history was again reviewed. The examiner provided diagnoses of gout, rheumatoid arthritis, and psoriatic arthritis. In a March 2017 addendum opinion, the VA examiner opined that it was less likely than not that any joint disorder began in service or is otherwise related to service. The VA examiner again noted the private medical records from Dr. M.M. that showed that the onset of the Veteran's claimed joint disorder began in 2005, approximately 15 years after the Veteran's separation from active service. The examiner noted the Veteran's exposure to asbestos and mercury while in service, and stated that studies show that the physical properties of liquid elemental mercury limit its absorption through intact skin, and in light of its very low absorption rate from the gastrointestinal tract, skin absorption would not be high. The examiner further stated that exposure to a broken mercury bulb in the calibration box would not be considered a high concentration exposure. Thus, the examiner concluded that the Veteran's chronic joint disorder was not related to service and did not become manifest within one year of separation from military service. In a subsequent August 2017 VA addendum opinion, the examiner again opined that the Veteran's joint disorder was less likely than not incurred in or caused by an in-service injury, event or illness. The examiner again emphasized that there are no scientifically valid reports of human arthritidies as a result of mercury poisoning or asbestos exposure. The Veteran's diagnosis of inflammatory arthritis is based on his personal history of pain, stiffness, weakness, heat, redness, giving way, lack of endurance, locking, fatigability, and tenderness in big toes, elbows, heels, knees, shoulders, and lower back. The examiner concluded that these symptoms cannot be explained by the Veteran's musculoskeletal trauma in service. The Board places great probative weight on the opinions reached in the April 2016 examination report and accompanying August 2017 addendum. In contrast to the opinions reached by Dr. N.B. and M.M., the April 2016 and August 2017 examiner provided a rationale for the conclusions reached and included citations to the Veteran's documented medical history and various medical literature concerning the toxicology of mercury in support of their opinions. These opinions account for the lack of symptomatology noted in the Veteran's service records, the length of time following service before the report of symptoms to health care providers, and the initial reports of the Veteran to his health care provider in 2007 that noted only a two year onset of symptomatology. Thus, these opinions are of greater probative weight than the opinion reached by Drs. N.B. and M.M. The Board finds that due to (1) the passage of time from the Veteran's separation from active service to the time the Veteran first complained of a joint disorder in 2005, (2) the service treatment records being devoid of a chronic joint condition or chronic symptomatology during the Veteran's active service, and (3) the weight of the medical opinions of record that do not establish a nexus between service asbestos and mercury exposure, the Veteran does not suffer from a current joint disability that manifested during, or as a result of, active military service, or, that he currently suffers from a joint disability that was caused by, or aggravated by, a service-connected disability. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. While the Veteran believes that his current joint disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to this condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis or etiology of his claimed joint disability is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed joint disability is not competent medical evidence. Moreover, whether the injuries incurred in service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current joint disability is not competent medical evidence. The Board finds the opinion of the medical physician of record to be significantly more probative than the Veteran's lay assertions. In sum, the most competent and probative medical evidence shows that the Veteran's joint disability did not manifest in service or within the one-year presumptive period, and the most probative evidence fails to link it to the Veteran's service. Under these circumstances, the claim on appeal must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, there simply is no competent, probative evidence to support the current disability and medical nexus elements of the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). B. Inflammatory Polyneuropathy The Veteran also contends that he is entitled to service connection for inflammatory polyneuropathy. Again, he asserts that this claimed condition is a result of exposure to asbestos and mercury while in service. As previously stated, the Board concedes that the Veteran was exposed to asbestos and mercury while in service, as he was a boiler technician. The Veteran's service treatment records do not reflect that he suffered a chronic neurological disorder during active military service. During his November 1979 entrance examination, the Veteran stated that he was in good health. The service treatment records are devoid of any evidence of injury related to the nerves or complaints of symptomatology associated with the nerves, and according to the Veteran's January 1990 release from active duty examination report, the Veteran was deemed to be in good health. As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the nerves at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran suffered from a chronic disability of the nerves, or chronic symptomatology, within one year of his separation from active duty. As previously stated, in the letter from Dr. N.B. that VA received in April 2010, Dr. N.B. stated that neurologically, the Veteran was intact. On VA examination in August 2010, the examiner reviewed the Veteran's medical history, specifically pertaining to his joint disorder, as it relates to the claimed condition of inflammatory polyneuropathy. The examiner noted that the Veteran had been diagnosed with polyarthropathy and gout. The Veteran reported that these conditions had been present for 30 years. The examiner, however, made note of the February 2007 private medical record from Dr. M.M. that stated that the Veteran was referred to him for evaluation of polyarthritis of approximately two years duration. Neurological testing was conducted. EMG/NCS testing revealed no evidence of polyneuropathy, inflammatory or otherwise. In a March 2013 addendum opinion, the August 2010 VA examiner continued her conclusion that the Veteran had no objective evidence of peripheral neuropathy. The examiner made reference to prior EMG/NCS testing and how they revealed normal results. The examiner further stated that electrodiagnostic studies are considered the "gold standard" and provide objective evidence. As the Veteran's prior testing was normal, the examiner again concluded that it was unlikely that the Veteran had a significant peripheral neuropathy. On VA examination in April 2016, the examiner provided a diagnosis of peripheral nerve entrapment syndrome. Muscle strength testing and reflex testing revealed normal results. Sensory examination showed diminished vibration sense in the upper extremities. The Veteran denied feeling cold in the lower extremities. The examiner noted that the Veteran did not have any trophic changes attributable to peripheral neuropathy, and that the Veteran's gait was normal. The VA examiner subsequently provided a March 2017 addendum opinion, and clarified that it was less likely than not that a neurological disorder began in service or is otherwise related to service. As previously stated, the examiner noted the Veteran's exposure to asbestos and mercury while in service, and stated that studies show that the physical properties of liquid elemental mercury limit its absorption through intact skin, and in light of its very low absorption rate from the gastrointestinal tract, skin absorption would not be high. The examiner further stated that exposure to a broken mercury bulb in the calibration box would not be considered a high concentration exposure. Thus, the examiner concluded that the Veteran's neurological disorder was not related to service and did not become manifest within one year of separation from military service. The Board finds that due to (1) the passage of time from the Veteran's separation from active service to the time the Veteran was diagnosed with a neurological disorder in 2016, (2) the service treatment records being devoid of a chronic nerve condition or chronic symptomatology during the Veteran's active service, and (3) the weight of the medical opinions of record that do not establish a nexus between service asbestos and mercury exposure, the Veteran does not suffer from a current neurological disability that manifested during, or as a result of, active military service, or, that he currently suffers from a neurological disability that was caused by, or aggravated by, a service-connected disability. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. While the Veteran believes that his current neurological disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to this condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis or etiology of his claimed neurological disability is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed neurological disability is not competent medical evidence. Moreover, whether the injuries incurred in service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current neurological disability is not competent medical evidence. The Board finds the opinion of the medical physician of record to be significantly more probative than the Veteran's lay assertions. In sum, the most competent and probative medical evidence shows that the Veteran's neurological disability did not manifest in service or within the one-year presumptive period, and the most probative evidence fails to link it to the Veteran's service. Under these circumstances, the claim on appeal must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, there simply is no competent, probative evidence to support the current disability and medical nexus elements of the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a joint disorder, including gout/inflammatory polyarthropathy, is denied. Entitlement to service connection for inflammatory polyneuropathy is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs