Citation Nr: 18143810 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-35 346A DATE: October 22, 2018 ORDER Entitlement to service connection for lumbar spine arthritis, diagnosed as psoriatic arthritis secondary to Hepatitis C, has been awarded service connection and the appeal for service connection is dismissed. Entitlement to service connection for bilateral total knee replacement, claimed as secondary to psoriatic arthritis associated with Hepatitis C, is denied. FINDINGS OF FACT 1. The Veteran’s chronic low back pain is best diagnosed as psoriatic arthritis that has been awarded service connection. 2. The Veteran’s bilateral total knee replacement was the result of non-service connected osteoarthritis, it was not caused by the psoriatic arthritis which is secondary to service connected Hepatitis C. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar spine arthritis, diagnosed as psoriatic arthritis secondary to Hepatitis C, is dismissed as moot. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.310, 4.71a, Diagnostic Code 5002 (2017). 2. The criteria for entitlement to service connection for bilateral total knee replacement, claimed as secondary to psoriatic arthritis associated with Hepatitis C, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a U.S. Army trainee from January 1977 to June 1977. This appeal comes to the Board of Veterans’ Appeals (Board) from an April 27, 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. Relevant to the claim for service-connection for lumbar spine arthritis, post service treatment records showed that the Veteran was diagnosed with psoriatic arthritis in January 2014 including as it is present in the lumbar spine. The RO granted service connection for psoriatic arthritis as an active process with joint involvement including the back on October 10, 2018. Service connection was granted under Diagnostic Code 5002 and is associated with service connected Hepatitis C. 38 C.F.R. § 4.71a. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Service Connection Generally, to establish service connection 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of 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 disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310. 1. Lumbar Spine Service treatment records are silent for any symptoms, diagnoses or treatment for back injury or onset of disease. In a January 2014 claim, the Veteran reported chronic multiple joint pain including in his back for years. In treatment records in January 2014, a private rheumatologist noted that the Veteran presented with neck, low back, and multiple joint pain. The back pain developed when the Veteran was in his 30s with no inciting cause. The specialist noted that the symptoms were consistent with psoriatic arthritis but that concomitant osteoarthritis and disc disease of the spine could not be ruled out and ordered serological and radiographic studies. In February 2014, the private rheumatologist diagnosed psoriatic arthritis with erosive disease. In May 2016, a VA rheumatologist concurred in the diagnosis of psoriatic arthritis as responsible for the Veteran’s back pain. In May 2018, another VA physician reviewed the records and again noted that psoriatic arthritis affected many joints including the back and that the Veteran has been treated with medications for this disease. The physician also noted that the Veteran’s service-connected hepatitis C infection can cause inflammatory arthritis similar to rheumatoid type arthritis. In October 2018, while this matter was pending before the Board, the RO granted service connection for psoriatic arthritis to include the Veteran’s bilateral hands, feet, knees, right hip, right leg, neck, and back. The weight of competent evidence is that the Veteran’s spinal disability is caused by psoriatic arthritis and not degenerative disease. Thus, the benefit sought on appeal is already in effect, and the Veteran’s appeal is moot. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). There has not been a notice of disagreement (NOD) filed in opposition to the October 2018 rating decision, and no appeal from that rating decision has been certified to the Board. 2. Bilateral Knee Replacement Both knees were included as joints impacted by the diagnosed psoriatic arthritis, and the psoriatic arthritis was granted secondary service connection in October 2018. However, the Veteran has also asked for service connection for his bilateral knee replacement in 2008. Service treatment records (STRs) do not mention any knee injury or complaints. No separation examination is available. The Veteran served for 4 months and was discharged for non-medical reasons as evidenced by the June 6, 1977 Proposed Discharge Action filings. Records from the Social Security Administration (SSA) reveal that knee pain was mentioned as early as March 8, 2005. At that time, he complained of pain at multiple joints which was noted as possibly being age related osteoarthritis. He was told to reduce his work hours as his profession was very active and physically demanding; he was also told to add exercise. On November 13, 2006 an MRI revealed a tear in the medial meniscus of the left knee. Findings showed a few tears throughout the knee, a bone marrow edema, a cyst, a small joint effusion, and “osteoarthritic change involving the patellofemoral joint.” Arthroscopic surgery was performed on the left knee on January 4, 2007. Post-surgical notes mentioned the Veteran worked in construction for 30 years. The Veteran continued to report knee pain on May 31, 2007, saying that the left was still worse than the right. He told the physician he could no longer kneel, run or jump and that he had constant pain in both knees. He was noted to be 6 feet tall and weighed 250 lbs. Imaging studies revealed his left knee suffered from severe degenerative joint disease (DJD), and the right knee had moderate to severe DJD. At that time, he was educated about having a total joint arthroplasty. Five weeks after his surgery the Veteran had a follow-up appointment on December 4, 2008. The procedure was successful and the physician was pleased with the Veteran’s progress. Four months after his surgery the Veteran had a follow-up appointment on March 10, 2009. He was experiencing pain, but overall the report was positive. A medical visit on January 15, 2014 recorded that the Veteran began having knee pain in his late 20s that has worsened over time. His pain “significantly worsened” after a “mechanical fall on September 30, 2013. Prior to this he was a construction worker who last worked in 2008. In his notice of disagreement (NOD), from October 1, 2015, the Veteran said he was told there was no treatment for the progression of his disease. He mentioned something being “dormant for 37 years,” and noted that he believes his liver disease was caused during service. The April 29, 2016 compensation and pension (C&P) examination noted that the Veteran was diagnosed with bilateral knee osteoarthritis in 2008. The Veteran reported knee pain “for years” and noted that he was treated for several years by a private doctor before surgery. He did not report flare-ups, but his range of motion (ROM) was abnormal in both knees, resulting in a maximum of 90 degrees of flexion. No additional functional loss was found on repetitive use testing. There was no ankylosis, loss of muscle strength, or atrophy in either knee; nor was there any instability. The examiner opined, Review of the medical data according to civilian treatments did not reveal further signs of inflammatory joint disease characteristic of psoriatic arthritis, except for the finding of erosive changes in the hands as documented by Dr. R.C. It is clear that the Veteran’s medical doctors have been treating the Veteran for osteoarthritis or degenerative arthritis of the knees and chronic back pain, upon the examiner’s review. Further review of the medical records indicate that the diagnoses of chronic back pain and degenerative disc disease and knee osteoarthritis as treated by Dr. A.R. preceded the diagnosis of psoriatic arthritis affecting the hands as diagnosed by Dr. R.C. in 2014 by many years. Therefore, it is this examiner’s opinion that there is sufficient evidence of psoriatic arthritis affecting the Veteran’s hands as diagnosed by Dr. R.C. The Veteran’s other joint issues, however, are documented by Dr. R.C. and Dr. A.R. to be DEGENERATIVE, or osteoarthritis in nature. These include specifically, his knees . . . Due to the reason that his other joint conditions are degenerative (osteoarthritic) in nature, the examiner opines that the Veteran’s other joint symptoms affecting the back, knees, and shoulder cannot be directly attributed to psoriatic arthritis based on the evidence. Therefore, these cannot be exacerbated by the preclusion of potent immunosuppressive treatments due to co-existing Hepatitis C. A May 14, 2018, Dr. W said that the Veteran’s psoriatic arthritis had spread to his knees. He explained that Hepatitis C can cause inflammatory arthritis that may be similar to rheumatoid arthritis and said that the Hepatitis C directly caused the inflammatory arthritis. A July 2, 2018 C&P examination that took note of the knees being diagnosed with psoriatic arthritis in 2013. The Veteran said he still has pain in his knees after the total knee replacement and uses a cane. Flexion in his knees only went to 90 degrees, and he had pain on weight bearing. There was no ankylosis, instability was not tested. The previous meniscal issue was noted, but there were no symptoms residual of the meniscus surgery. Residuals of the total knee replacement created “intermediate degrees of residual weakness, pain or limitation of motion” in both knees. Psoriatic arthritis was service-connected secondary to Hepatitis C in the October 2018 rating decision. His knees were included as one of the joint systems affected by the psoriatic arthritis. However, the psoriatic arthritis was not the cause of the Veteran’s total knee replacement which was attributable to osteoarthritis. Osteoarthritis is not caused by any aspect of service, or aggravated by his psoriatic arthritis or Hepatitis C infection. The Veteran served on active duty for 4 months. During that time period he did not suffer any knee injury or make any knee related complaints. While the Veteran reported knee pain for about 15 years he is not competent to explain that his psoriatic arthritis was the reason he needed a total knee replacement. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical rationale for the total knee replacement was degenerative arthritis that caused the Veteran’s knees to be bone-on-bone. His joint pain was also explained as being caused by a physically strenuous job and long hours, additionally the Veteran had been noted as overweight during the time he was dealing with knee pain due to osteoarthritis. In his notice of disagreement (NOD, the Veteran contended that his Hepatitis C was “dormant” since service, and reasons that it has caused his bone and cartilage issues. While this may be true of the current psoriatic arthritis, his osteoarthritis is less likely than not caused by service or a service connected disability. Even with the Veteran’s contention that Hepatitis C caused osteoarthritis, the opinion by the VA examiner from April 2016 is very detailed and well-reasoned and refutes the Veteran’s statements. That opinion explains how the etiology of the osteoarthritis took place before the psoriatic arthritis, and that the osteoarthritis caused the degeneration of the knees and eventually led to surgery. The Board finds this explanation is the most probative in explaining the total knee replacement as it is based on the evidence and gives a thorough opinion; no other medical opinion explains the reasons for the surgery or attributes psoriatic arthritis as the cause for the total knee replacement. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008) (the Board may favor one medical opinion over another if it offers an adequate statement of reasons or bases). The current knee disability may be related to pain from psoriatic arthritis, but the knee surgery itself was caused by osteoarthritis diagnosed in 2008. Arthritis is a presumptive disease that may be service connected if there is a manifestation of the disease to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The Veteran was not diagnosed with osteoarthritis until 2008, over 30 years after his 6 months in service. At no time in that 30-year period did the Veteran explain that his knees hurt because of any in-service event. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a negative inference may be drawn from the absence of complaints or treatment for an extended period). Medical professionals also explained joint pain at the time as being due to strenuous physical labor for 30 years. The Veteran’s osteoarthritis is also not secondary to Hepatitis C. The osteoarthritis has been explained as related to three decades of physical labor and age and caused a degeneration of the knees which led to surgery. Hepatitis C may have caused psoriatic arthritis, but this is not the reason the Veteran needed a total knee replacement. When the knee replacement occurred in 2008, the Veteran’s knees were not diagnosed with psoriatic arthritis. In fact, the Veteran was not even diagnosed with Hepatitis C at that time. While psoriatic arthritis is now manifested in the Veteran’s knees it was not the case in 2008. Rather, osteoarthritis was present at that time and it was caused by non-service related activities and not by Hepatitis C. (Continued on the next page)   There was no in-service injury or onset of disease in the Veteran’s 4-month active service with the United States Army. While an Hepatitis C infection was found to be caused by service, and psoriatic arthritis was caused and aggravated by that disease, the Hepatitis C did not cause osteoarthritis. The Veteran’s osteoarthritis has been well documented since 2007, and at no time has its etiology been explained attributable to service. In fact, an alternative etiology has been explained for the osteoarthritis. The bilateral total knee replacement was not due to an in-service injury, it did not manifest within a year of service or show symptoms continuing since service, and it is not medically related to psoriatic arthritis. Therefore, service connection for the bilateral total knee replacement is denied as not being caused or aggravated by service or by Hepatitis C. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel