Citation Nr: 1804649	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO. 10-27 361A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for degenerative joint disease (i.e., arthritis) of the knees. 

2. Entitlement to service connection for rheumatoid or gouty arthritis of all other joints.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. G. Perkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May to July 1967. 

This appeal to the Board of Veterans' Appeals (Board/BVA) is from January 2009 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2011, as support for his claim, the Veteran testified at a hearing at the RO before a local Decision Review Officer (DRO). Also later that same year, in October 2011, the Veteran testified at an additional hearing at the RO, but this time before the undersigned Veterans Law Judge of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. Transcripts of both hearings are of record.

When filing his claim, the Veteran alleged entitlement to service connection for rheumatoid arthritis. But given the evidence of record (including a lack of a current rheumatoid arthritis diagnosis and instead the existence of a current gout diagnosis), the Board has recharacterized his claim to include these several variants of this disease. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).


FINDINGS OF FACT

1. The degenerative joint disease of the Veteran's knees (right and left) initially manifested years after his service and is not shown to be related or attributable to his service.

2. He does not have a rheumatoid arthritis diagnosis.

3. There has been no demonstration by competent medical, nor competent and credible lay, evidence that his gout is related to his active duty service or that it was proximately caused or is being aggravated by a service-connected disability.


CONCLUSIONS OF LAW

1. Service connection for degenerative joint disease of the knees (right and/or left) is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2. The criteria also are not met for entitlement to service connection for gout or rheumatoid arthritis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by way of a September 2008 letter issued prior to the initial adjudication of these claims, so in the preferred sequence and containing the necessary information. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As for the duty to assist, the Veteran's service treatment records (STRs) and VA and private medical records have been obtained, to the extent relevant and obtainable. As well, he was afforded VA compensation examinations for needed medical nexus opinions concerning the etiology of his bilateral knee disability and additionally-claimed rheumatoid arthritis and gout disabilities, including especially in terms of their purported relationship or correlation with his military service. A duty-to-assist omission is not alleged, therefore, this obligation has been satisfied.


Factual Background, Legal Criteria and Analysis 

In deciding this appeal, the Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Turning now to this evidence of record, the Veteran's STRs show he had an entrance examination in March 1967. During that examination, the examiner only reported a two-and-one half inch scar on the Veteran's right ankle. In May 1967 the Veteran sought treatment twice at the clinic for a headache and joint pain. He later was seen in June 1967 for a urinary tract infection. He was also admitted in June 1967 for hematuria. 

Following the June 1967 hospitalization, a medical review Board (MRB) convened in July 1967 to determine the Veteran's fitness to remain in service. The MRB found him to have early rheumatoid arthritis. The MRB determined his condition was not caused by his service, however, and that this condition to the contrary had existed prior to him beginning his service. The MRB also determined his rheumatoid arthritis was not aggravated by his service. He was returned to duty in order to process his medical discharge by reason of erroneous induction. The detailed narrative of the MRB indicates he was in good health until November 1964, when he started having swelling and tenderness of his ankles and feet. The arthralgia gradually increased with demonstrated tenderness over the synovial membrane of his knees, shoulder, elbows and wrists. He was treated generally with aspirin and gradually improved. However, the report further states that the multiple-joint arthralgia reoccurred with the strenuous exercise of basic training. During the MRB examination in July 1967, the examiner reported that careful examination of the Veteran's bone joints revealed no limitation of motion of any joints, no front synovial thickening and no joint swelling or tenderness. X-rays were taken of his hands, knees, ankles and wrists. The examiner reported that the knees, ankles and hands appeared normal and there was no evidence of cartilage loss or erosion. But the right wrist showed some soft tissue swelling, and the left wrist revealed some binding of the ulnar styloid process that caused the examiner to suspect the Veteran had early rheumatoid arthritis. The examiner also reported laboratory results that white blood cells in the Veteran's urine were too numerous to count, but a repeat urinalysis was normal and his serology was nonreactive. The MRB report also stated that the Veteran only experienced minimal arthralgia during his hospital stay. 

The Veteran's STR's also contain private medical records for treatment that occurred prior to service. According to these records, he sought treatment in the emergency room (ER) at General Hospital of Houston and Harris County in November 1964. He had complained of pain in the balls of his feet after standing on concrete floors while at work. A week later he revisited the hospital ER complaining of multiple-joint pain and swelling. Although the swelling resolved, the joint pain remained. The evaluating physician sought to rule out tuberculosis, sickle cell disease, lupus erythematosus, and rheumatoid arthritis. The Veteran went to the hospital's clinic for follow up two days later. During that follow-up appointment, the evaluating physician suspected gout, collagen disease among other possible causes of the Veteran's joint pain. 

The Veteran's STRs as well include a February 1965 medical record from a rheumatic disease physician who believed the Veteran had early rheumatoid arthritis (RA). However, the diagnosis was not final as more test results were needed to confirm RA and to continue to exclude lupus erythematosus. The rheumatic disease physician also considered ankylosing spondylitis and other collagen diseases.

The preceding private medical records were associated to the MRB report. As a result of the Veteran's condition and pre-service medical records, the MRB decided that the Veteran did not meet induction standards and consequently recommended a medical discharge. His discharge certificate documents that he was discharged as a trainee for medical reasons. His medical examination report at separation is illegible. 

The Veteran's claims file contains additional records from General Hospital of Houston and Harris County. An additional November 1964 record documented that he returned to the hospital clinic for a scheduled follow-up for his ankle pain. In December 1964 he had pain in his ankle, shoulder and knees. The provider documented that it was believed the Veteran had rheumatoid arthritis.

September 1997 VA medical center (VAMC) records show that in the "late 1980's" the Veteran was diagnosed with gout due to having high uric acid levels and having his knee tapped at a non-VA facility. The record also shows that he had arthritis. He was seeking treatment for bilateral knee pain and reported to the provider that his mother and siblings have similar joint complaints. Of note the medical provider documented in the record that he questioned the Veteran's gout diagnosis.

In September 2000 the Veteran sought treatment at a VAMC for bilateral knee pain. The Gout diagnosis was still listed in his records as well as degenerative joint disease (DJD), i.e., arthritis.

Private medical records further show the Veteran sought treatment in March 2002 for his right knee after he fell in a ditch in November 2001 and hyperflexed this knee. During the knee examination, the physician found "moderate thickening" and a range of motion (ROM) of 10 degrees to 110 degrees for the right knee and 0 degrees to 130 degrees for the left knee. Knee X-rays showed the Veteran had end-stage osteoarthritis. The diagnosis was DJD.

The Veteran sought medical treatment in April 2002 for pain and swelling in his left knee of four days' duration. X-rays of both knees showed severe osteoarthritis with little pits subchondral of the articular surface leading the evaluating physician to suspect the Veteran may have gouty arthritis.

In September 2002 the Veteran sought treatment for bilateral knee pain on four occasions. He was being treated by a different physician group prior to his insurance changing, resulting in a change in his treating providers. The new provider documented the Veteran's knee pain as worse with activity than while resting. He also had an effusion requiring aspiration. He reported receiving corticosteroid injections in his knees and prescription anti-inflammatory medications with little relief. He was diagnosed with severe arthritis of the right knee and moderate arthritis of the left knee and advised he needed total knee replacement surgery, bilaterally (so on each knee).

The Veteran sought treatment from a private provider in January 2004. The provider reported that the Veteran never returned for his four-week follow up after his September 2002 appointment. He was complaining of bilateral knee pain and rated his pain as 9 on a scale of 1-10. Bilateral knee X-ray's showed significant progression of arthritis. In August 2003 he sought treatment for leg pain that the provider diagnosed as degenerative arthritis.

In February 2004, the Veteran sought treatment from his private medical provider due to right knee pain. He required aspiration of his knee due to effusion. The provider also reported that the Veteran's right knee had considerable varus malalignment, flexion contracture and significant crepitation with passive range of motion.

The Veteran returned in April 2004 for knee injections. During examination of his knees, it was revealed that he had a moderate varus deformity and significant right medial joint line tenderness. He was also noted to walk with an antalgic gait. His X-rays showed end stage medial compartment gonarthrosis in the right knee and mild-to-moderate arthrosis in the left knee. 

Private medical records from Dr. B show that the Veteran sought treatment in August 2007 complaining of pain in his hands and knees. He was found to have high uric acid. In a November 2007 private medical record from Dr. B, Gout and arthritis of the knees were among the Veteran's listed diagnoses.

The Veteran sought treatment at a VAMC in February 2010. He complained of bilateral knee pain. X-rays showed he had marked DJD and tricompartmental arthritis. He did not have effusion and was treated with an injection into his knee.

In June 2011, the Veteran was afforded a VA examination for his knee disability. The examiner noted that the Veteran was diagnosed with gout based on high uric acid levels two years prior to service and that, while in basic training, he had increased joint pain and swelling - resulting in his medical discharge with the impression of rheumatoid arthritis. The Veteran reported to the examiner that he was experiencing pain, stiffness and limitation of motion to his knees. The examiner noted that the Veteran did not have a history of knee trauma or inflammatory arthritis to his knees. Knee X-rays taken showed degenerative changes of the tibiofemoral joint and the femoral patella joint. The examiner diagnosed the Veteran with gout and DJD in both knees, specifically finding that the Veteran did not have rheumatoid arthritis.

The examiner opined that the Veteran's arthritis is less likely than not caused or aggravated beyond normal progression as a result of his service. The rationale used to support the opinion was that the Veteran's DJD is related to obesity, the aging process and gout without any evidence of aggravation of DJD of the knee beyond the normal progression. The examiner cited to the medical literature located on "UpToDate" website stating that "[r]arely inherited conditions may predispose individuals to develop osteoarthritis. For the majority of patients osteoarthritis is linked to one or more factors such as aging, occupation, trauma and repetitive small insults over time ..." 

During his October 2011 Board hearing, the Veteran testified that his pre-1997 private medical records from Dr. W. are not available. The Veteran also testified that he had injured his knees from crawling during basic training, and that his knees did not hurt prior to service.

Pursuant to a February 2014 remand, the June 2011 VA examiner submitted a supplemental opinion in March 2014. The examiner opined that "[t]he current joint condition, gout, is less likely as not incepted during [the Veteran's] service from May to July 1967 or is otherwise related or attributable to his service or dates back to his service. There is evidence of preexistent joint condition in medical records dated 1964." The examiner's rationale was that the Veteran did not have an onset of gout during service and therefore his gout was less likely as not aggravated by service. In regards to the Veteran's DJD, the examiner opined that the DJD of his knees is at least as likely due the aging process and gout. As rationale to support the opinion, the examiner stated that the Veteran's records showed the presence of urate crystals in the joint fluid of the knees and April 2002 knee X-rays were consistent with gout (pitting cysts). The examiner further stated "After more than 40 years, aging is one factor associated with DJD. A[s] per medical literature, aging, trauma and cryst[a]l induced arthropathy (gout) are causes for DJD."

Pursuant to a January 2017 remand, the June 2011 and March 2014 VA examiner submitted another supplemental opinion in January 2017. In this additional comment, the examiner stated that the Veteran clearly and unmistakably had gout prior to beginning his service in May 1967. The rationale for the opinion was that, based on his uric acid, the Veteran was diagnosed with gout in 1965, but was not on medication for the gout at that time. The examiner also stated that the Veteran's serology was not consistent with rheumatoid arthritis.

The examiner as well opined that the Veteran's pre-existing disease was not aggravated beyond its natural progression during or by his service from May to July 1967. The examiner explained the Veteran was treated for his acute problems with the adequate treatment. Acute gout usually will not be aggravated beyond its natural progression during his short service and considering he was on profile. The examiner stated: "His current condition is the result of long standing gout for years which is the natural progression especially when he was not under medical evaluation after service separation."

The examiner further opined that any current joint condition, including gout, incepted during the Veteran's service from May to July 1967 is less likely than not related or attributable to his service or dates back to his service. For the rationale supporting the opinion, the examiner explained that the Veteran's pre-existing gout temporary flared up during service and that an acute attack is not enough to cause permanent damage in joints. Additionally, the examiner stated that the Veteran had poor control of his gout over years which led to his knee DJD in late 1990's. The examiner listed several factors of osteoarthritis as provided in the medical literature UpToDate.com. The factors listed by the examiner were:  age, obesity, genetic elements, calcium crystal deposition disease, occupation, previous injury, sports activities, lack of osteoporosis, gender, proprioceptive deficits. The examiner then stated that "[i]n this [V]eteran the possibility of DJD in [the] knees is most likely related to aging (73 y/o), weight (bmi reported 36 or more) and secondary to chronic gout."

In regards to the Veteran's bilateral DJD claim, the VA examiner opined that the Veteran's bilateral knee DJD is less likely than not initially manifested during his service or is otherwise related or attributable to his time in service. For the rationale supporting the opinion, the examiner explained that knee DJD requires chronic inflammation in knees over years to develop, not over a short time period. The examiner then explains that the other factors play an important part. The examiner provided a link listing those factors on the website UpToDate. Kenneth C. Kalunian, MD, Risk Factors for and Possible Causes of Osteoarthritis, UpToDate (Oct. 6, 2017 https://www.uptodate.com/contents/risk-factors-for-and-possible-causes-of-osteoarthritis?source=search_result&search=degenerative%20joint %20disease%20of%20knee%20etiology&selectedTitle=1~150)

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a relevant disease or an injury in service; and (3) a correlation ("nexus") between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).

Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if the Veteran served at least 90 days and the disease manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a specified period of time post service (one year for arthritis). 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Service connection also may be granted for these chronic diseases by showing continuity of symptoms since service under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. 1111; 38 C.F.R. 3.304. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected ("noted"). Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1).

Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261(2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that, in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. 3.304(b) (2017). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003).

Before these above-cited precedent opinions, VAOPGCPREC 3-2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability pre-existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard).

A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Bilateral (Left and Right) Knee Degenerative Joint Disease

The question of whether the Veteran has a bilateral knee condition is not in dispute. He has been diagnosed with degenerative joint disease (DJD), i.e., arthritis, of the knees. What is in dispute, however, is whether this disease incepted during his service or is otherwise related or attributable to his service, See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). After reviewing the evidence, the Board finds that service connection must be denied because the preponderance of the evidence is against the claim. 

Since the Veteran has been diagnosed as having DJD of the knees and arthritis is defined as chronic in section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply and the claim may be established with evidence of chronicity in service or continuity of symptomatology since service. See Walker, 708 F.3d at 1338-1339.

Although the Veteran is competent to report symptoms such as knee pain in service, also continually since, his assertions that his knee symptoms have persisted since service are outweighed by the contemporaneous lay and medical evidence. 38 C.F.R. 3.159 (a) (2014); see Layno v. Brown, 6 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Notably, the STRs are devoid of indication of chronic knee disability owing to arthritis. And while this, alone, is not dispositive of whether he had permanent knee-related pathology during his service, it is nonetheless probative evidence suggesting he did not. In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428   (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation is service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc.).


In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings in order to rely on this negative inference (see Kahana):  (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues.

So it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, supra. The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

May 1967 STRs show the Veteran sought treatment during service for headaches and non-specific joint pain. While hospitalized in July 1967, he was complaining of pain to his bilateral ankles, knees, hands and wrist joints. The examination of the knee was normal. He contends that he injured his knees while crawling and jumping during basic training. He was hospitalized and given a detailed examination before being medically discharged. He was diagnosed with rheumatoid arthritis. During the MRB examination, his knees were found to be normal. A September 1997 VAMC medical record notes that he was told he had arthritis in his knees by a non-VA facility during the 1980's.

In a September 2008 statement, the Veteran discussed crawling around, but only referenced having swollen painful feet and that some days he could not put on his shoes. In a January 2009 statement, he once again discussed "hurting his knees" while in basic training. In February 2009, he submitted a statement proclaiming that, when he left service, his feet, hands and knees were swollen. He stated that, while hospitalized, the doctor told him that the training was too much for him because it aggravated his knees from crawling, his hands from the monkey bars and his legs and feet from running.

As DJD of the knees was not shown during service or for years thereafter, service connection can only be granted if there is some competent and credible (so ultimately probative) evidence linking the current disability to service. But the preponderance of the evidence is against this required correlation allowing the finding that the DJD of the Veteran's knees is the result of his military service. 

Concerning this determinative issue of causation, the January 2017 VA examiner opined the DJD of the Veteran's knees was less likely than not initially manifested during service or is otherwise related or attributable the Veteran's time in service.  See 38 C.F.R. § 3.303(d) (permitting the granting of service connection in instances where the initial diagnosis of the claimed condition was after service, so long as the evidence otherwise attributes the condition to service). In disassociating the Veteran's condition from his service, the examiner reasoned that it requires years of chronic inflammation of the knees to develop DJD. The examiner opined that the Veteran's DJD was most likely related to aging, weight and secondary to chronic gout as found in epidemiology studies found in medical literature. The examiner then compared these factors to the Veteran's age of 73 years old, his having a body mass index (BMI) of 36 percent or more and his chronic gout.  The gout, as will be explained, also has not been attributed to his service, so the arthritis, even if secondary to the gout, cannot be secondarily related to his service.  38 C.F.R. § 3.310(a) and (b).

Despite his assertions to the contrary, whether the Veteran's bilateral knee disability was incurred during service is a medically complex determination that cannot be made based on lay observation alone. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77, & n4 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Instead, this determination must be made by a medical professional with appropriate expertise. Id. Because the Veteran, as a lay person, does not have the appropriate medical training and experience, his assertion that his bilateral knee disability stems from being aggravated while crawling and jumping during basic training while in service is not competent evidence. Thus, his statements concerning this are probatively outweighed by the January 2017 VA examiner's opinion, which was rendered by a medical professional qualified to make this necessary determination.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

In sum, a chronic bilateral knee condition in the way of arthritis was not diagnosed during service or for many years thereafter. The competent and credible, and therefore most probative, evidence does not establish the required linkage between the bilateral knee condition (DJD) and the Veteran's service. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. The appeal of this claim therefore must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55.

Rheumatoid Arthritis and Gouty Arthritis

The Veteran also contends that his rheumatoid arthritis and/or gout was caused or aggravated by his service.

In May 1967, the Veteran had an entrance examination upon induction into service. During that examination the only noted defect was a two-and-one-half-inch scar on his right ankle. No other defects were noted. However, within just a few weeks of basic training, he was experiencing pain and swelling in his ankles. He sought treatment twice as documented in his STRs. He was subsequently hospitalized and suspected of having rheumatoid arthritis. As a result he was medically discharged for erroneous induction. 

Since the examiner did not note rheumatoid arthritis as a defect on the Veteran's entrance examination report, it must be presumed that he was in sound physical health upon his entrance into service. But, as already explained, this presumption is rebuttable by clear and unmistakable evidence that his disability pre-existed service and was not aggravated by it, meaning worsened beyond its natural progression. The evidence shows that, while the Veteran was hospitalized an MRB determined he had a pre-existing condition and resultantly recommended a medical discharge. He was discharged in July 1967 after just two months and sixteen days, or 76 days, of total service.  According to 38 C.F.R. § 3.303(c) (preservice disabilities noted in service), there are occasions like here when a disorder was noted so relatively soon after beginning service that it clearly and unmistakably must have pre-existed service.  This VA regulation states there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with the principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary.  Consequently, with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service, the conclusion must be that they preexisted service.

Here, and furthermore, in the January 2017 supplemental opinion the examiner opined that the Veteran did not have a rheumatoid arthritis diagnosis and that he clearly and unmistakably had gout prior to beginning his service in May 1967 as he was diagnosed with gout two years earlier, in 1965, based on his elevated uric acid. There are no medical opinions contradicting this finding, certainly none of equal or greater probative value. As a result, is established that the Veteran's gout preexisted his service by clear and unmistakable evidence.


However, as discussed, the second prong that VA must prove by clear and unmistakable evidence is that the Veteran's preexisting gout also was not aggravated by his service (as he contends) or that any such worsening was not beyond the condition's natural progression. The January 2017 supplemental opinion on whether the gout was aggravated by the Veteran's service stated that acute gout usually will not be aggravated beyond its natural progression during the Veteran's short service and that, instead, his current condition is the result of long-standing gout for years that is the natural progression.

The January 2017 VA medical opinion addressed additionally the likelihood that the Veteran's current joint condition - including gout or rheumatoid arthritis, is otherwise related or attributable to his service. In the opinion, the examiner clearly stated that the Veteran does not have rheumatoid arthritis and that this presumptive diagnosis was in error.  The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  At the very least, the evidence must show that at some point during the appeal period the Appellant has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests the disability resolved).  Here, there is no such competent and credible (probative) indication.

The examiner further opined that any current joint condition, including gout, incepted during the Veteran's service from May to July 1967 is less likely than not related or attributable to his service or dates back to his service. The examiner's rationale supporting the opinion was that the Veteran had gout when he entered service. The Veteran did experience a temporary flare-up of his gout during basic training, so while in service, but the law requires not just an increase but one exceeding the normal progression of the disease. And concerning this, the examiner explained that acute attacks are not enough to cause permanent damage in joints. Additionally, the examiner pointed out the Veteran had poor control of his gout for several years that, in turn, led to his having DJD in his knees.  So any current impairment involving his knees has not been attributed to his relatively short stint of service.

The Board acknowledges the Veteran's testimony during his October 2011 hearing, to the effect that he knew he had arthritis before entering service. He further surmised that he did not have problems with his joints for three years preceding service, but then while in basic training had issues with pain and swelling. He also has provided several written statements that his feet and knees started hurting after crawling and jumping during basic training.

The evaluation of the probative value of a medical opinion and evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The credibility and weight to be attached to such opinions are within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 

Here, the Board finds that the opinions of the VA compensation examiner merit greater probative weight than those of the private medical provider or the Veteran's lay opinion. Contrary to the VA examiner, the Veteran's physicians did not provide an opinion regarding causation or etiology of the Veteran's current joint disabilities.   These doctors certainly did not provide sufficient explanation or reasoning for their opinions, even if favorable to the claim, and this more than anything else is where most of the probative value of an opinion is derived.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).  In Neives-Rodriguez, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). According to the holding in Stefl, to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, 

instead, must also support the conclusion with sufficient rationale and explanation. Stefl, at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).

The evidence on the whole establishes that the Veteran does not have rheumatoid arthritis. However, the record does indicate he has a gout diagnosis. Furthermore, the evidence of his testimony and medical opinions support that he was accepted into the service with his preexisting gout condition. However, the probative medical opinions refute his claims that his 76 days of service, most of which were spent on profile (limited duty) or as a patient admitted to a hospital aggravated his gout, again, meaning worsened it beyond its natural progression. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Thus, there is no basis for granting service connection either on a direct-incurrence basis (on an alternative presumptive basis is not available to Veteran due to him having less than 90 days of service. See 38 C.F.R. § 3.307(a)(1)). The most probative evidence also goes against any notion that any joint or gout disability is otherwise related or attributable to his service to, in turn, invoke consideration of 38 C.F.R. § 3.303(d) (initial diagnosis post service).



ORDER

The claim of entitlement to service connection for degenerative joint disease (DJD, i.e., arthritis) of the knees is denied. 

The claim of entitlement to service connection for rheumatoid or gouty arthritis of all other joints also is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs