Citation Nr: 1801510 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-25 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for generalized arthritis, claimed as secondary to service-connected lumbar spine and right knee disabilities. 2. Entitlement to service connection for a gastrointestinal disorder, claimed as secondary to service-connected lumbar spine and right knee disabilities. 3. Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder, depression, and chronic stress, claimed as secondary to service-connected lumbar spine and right knee disabilities. 4. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1969 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) from December 2008 and August 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In substantive appeals dated in March 2010 and September 2011, the Veteran requested a hearing before the Board. However, in October 2011, he withdrew his hearing request. With respect to the Veteran's claim for an acquired psychiatric disorder, the Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. The Court held that, in determining the scope of a claim the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying descriptions of the Veteran's psychiatric symptoms, the Board has recharacterized the issue to the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons, as reflected above. The issues of entitlement to service connection for a gastrointestinal disorder, as well as the claim for a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Generalized arthritis is unrelated to a service-connected disability. 2. The Veteran has a diagnosis of mood disorder that is related to a service-connected disability. CONCLUSIONS OF LAW 1. Generalized arthritis is not proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). 2. The criteria for service connection for a mood disorder have been met as secondary to a service-connected disability. 38 C.F.R. § 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). A letter dated in May 2010 discussed the evidence necessary to support the Veteran's claim of entitlement to service connection for generalized arthritis. The Veteran was advised of the allocation of duties between himself and VA regarding the development of a claim for benefits. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA's duty to assist, service and VA treatment records have been associated with the claims file. The Board acknowledges that the Veteran has not been afforded a VA medical examination. However, the Board finds that a VA examination is not necessary in order to render a decision on this claim. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the U.S. Court of Appeals for Veterans Claims (Court) held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. The Board finds that there is no competent evidence linking the Veteran's claimed generalized arthritis to his service-connected lumbar spine or right knee disability. Accordingly, an examination regarding whether the claimed generalized arthritis is proximately due to or the result of service-connected disease or injury is not warranted. The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a)(2017). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Generalized Arthritis The Veteran seeks service connection for generalized arthritis, which he claims is related to his service-connected lumbar spine and right knee disabilities. In essence, he argues that the arthritis he has experienced in his lumbar spine and right knee has spread throughout his body. Review of the record reflects that VA treatment records indicate generalized osteoarthritis involving various joints or extremities. A November 2016 problem list includes references to osteoarthritis of the ankle, hand, and "unspecified site." This problem list also indicates various other diagnoses, such as fibromyalgia, bursitis, epicondylitis, and shoulder pain. Having carefully reviewed the record, to include voluminous VA treatment records, the Board has determined that service connection for the claimed generalized arthritis is not warranted on a secondary basis. In this regard the Board notes that while the Veteran has degenerative joint disease of the lumbar spine and arthritis of the right knee that are subject to service connection, he has presented no competent medical evidence supporting a finding that the claimed generalized arthritis is proximately due to or the result of the service connected lumbar spine or right knee disabilities. To the extent that the Veteran asserts that he has generalized arthritis that is related to a service-connected disability, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is not, however, competent to render an opinion as to the cause or etiology of the claimed generalized arthritis because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, any argument by the Veteran that generalized arthritis is related to a service-connected disability is not probative. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to a service-connected disability. While the record reflects various joint complaints to include arthritis, it does not contain reliable evidence which relates this claimed disability to service connected disability. For these reasons, the Board concludes that the claim of entitlement to service connection for generalized arthritis must be denied as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Acquired Psychiatric Disorder The Veteran seeks service connection for a psychiatric disorder, which he attributes to pain from his service-connected low back and right knee disabilities. Upon review of the record, the Board finds that service connection for mood disorder is warranted. In this regard, a January 2009 statement by the Veteran's VA mental health provider indicates that the Veteran was under treatment for mood disorder and major depression, single episode. The provider noted that the Veteran's lumbar spine disability had caused a significant decline in his mood. She noted that his chronic pain impacted his mood and caused depressed mood. More recently, a May 2016 VA mental health record reflects a diagnosis of mood disorder due to chronic pain. As there is an informed medical opinion linking the Veteran's claimed mood disorder to his service-connected lumbar spine disability, service connection is in order. ORDER Entitlement to service connection for generalized arthritis is denied. Entitlement to service connection for mood disorder is granted. REMAND The Veteran also seeks service connection for a gastrointestinal disorder as secondary to medications prescribed for his service connected lumbar spine and right knee disabilities. In April 2010, a VA examiner noted abdominal pain with abnormal duodenal bulb on upper gastrointestinal series in July 2009, but indicated that it was not possible to state whether such was caused by prior medication use without resorting to speculation. The Board notes that subsequent medical treatment records include an impression of gastroesophageal reflux disease (GERD). The Veteran has reported occasional dyspepsia on use of his arthritis medication. As there is evidence of GERD, and the Veteran has complained of dyspepsia in association with use of his arthritis medication, the Board concludes that an examination is warranted to determine whether the diagnosed GERD is related to medication for the Veteran's service-connected lumbar spine and right knee disabilities. Further development and adjudication of the claim for a gastrointestinal disorder may provide evidence in support of the claim for a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently present acquired psychiatric disorder. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. The examiner should identify all currently present acquired psychiatric disorders. The examiner should then provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such disorder is due to or aggravated by (i.e., worsened beyond the natural progress) by the Veteran's service-connected lumbar spine or right knee disabilities, to include medication prescribed for those disabilities. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The complete rationale for any conclusion reached should be provided. 2. Thereafter, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand; if not, the AOJ should implement corrective procedures. 3. Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. 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). The 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. §§ 5109B, 7112 (West 2012). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs