Citation Nr: 1808664 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 03-22 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for degenerative joint disease of multiple joints, including the shoulders, hands, and knees. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for degenerative joint disease of the shoulders, hands, and knees. In July 2004, the Board issued a decision which, among other issues, denied entitlement to service connection for degenerative joint disease. The Veteran appealed the denial of his claim for service connection for degenerative joint disease to the U.S Court of Appeals for Veterans Claims (Court). In an Order dated February 2007, the Court vacated the July 2004 Board decision denying service connection for degenerative joint disease, and remanded that issue to the Board for readjudication consistent with its Order In December 2008, the Board remanded this case for further development, which has been completed. Subsequently, in January 2012, the Veteran testified in a videoconference hearing before the undersigned. A transcript of that testimony is associated with the claims folder. In May 2012, December 2014, and March 2017, the Board remanded the appeal for further evidentiary development. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's degenerative joint disease of his shoulders and knees was not present in service or within the first post service year, and is not otherwise related to his period of active duty. 2. There is no competent evidence that the Veteran has degenerative joint disease of the hands. CONCLUSION OF LAW Degenerative joint disease of multiple joints, including the shoulders, hands, and knees, was not incurred in or aggravated by active military duty and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). While the Veteran has identified several sources of evidence (e.g., VA medical records dated from January 1970 to December 1978, Social Security Administration records, and records from the Mississippi Workers' Compensation Commission prior to February 1996), the RO has determined that all of these records are unavailable and all efforts to obtain these records had been exhausted. In various letters, the Veteran was apprised as to the efforts made to obtain these records and their unavailability. The Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As such, the case is ready to be decided on its merits. Law and Analysis The Veteran seeks service connection for degenerative joint disease for the hands, shoulders, and knees. In January 2012, he testified that his degenerative joint disease was caused by an in-service fall from a military truck. 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 pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102 (2017). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Service connection for certain chronic diseases, including arthritis (i.e., degenerative joint disease), will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records (STRs) are negative for complaints of, treatment for, or findings of degenerative joint disease of multiple joints, including the Veteran's shoulders, hands, and knees. The Veteran has reported an in-service fall from a truck that caused his current degenerative joint disease. This in-service fall is also not documented in the STRs. Private post-service medical records reflect treatment for complaints of knee and shoulder pain on several occasions between October 1992 and September 1995. In June 1994, the Veteran sought treatment for complaints of right knee pain and swelling for approximately one month. The treating physician noted that the Veteran had no specific injury to his right knee, but explained that the Veteran "does a lot of hard work with his knees at work." The doctor provided an impression of a torn medial meniscus of the right knee. In the following month, the Veteran underwent an arthroscopic meniscectomy and chondroplasty of his right knee. Subsequently, in October 1994, the Veteran sought treatment for left shoulder pain over the past 10 years. The treating physician assessed impingement syndrome, early degenerative arthritis of the left shoulder, and ulnar nerve neuropathy. According to VA medical reports, in July 1995, the Veteran sought treatment for complaints of pain and bursitis of the left shoulder. Degenerative joint disease was assessed. A VA medical record subsequently dated in December 1995 notes that the Veteran's medical condition includes status post arthroscopic surgery of the right knee as well as low back strain. In March 1996, the Veteran underwent a VA miscellaneous neurological disorders examination. At that time, he complained of pain and discomfort in his shoulders. He specified that he had arthritis in his shoulders and experienced, as a result of this condition, severe pain when he moved his upper arms. In addition, he described some difficulty mainly with his left leg and, to a lesser degree, with his right leg. In particular, he noted that such difficulties included giving out of his left leg without warning and without any significant pain when he stood (which occurred approximately two to three times per day), as well as tingling and burning sensations and numbness in his left calf (particularly in the posterior aspect of this extremity) when he was especially active physically (e.g., rode a bicycle or walked briskly). A neurological evaluation demonstrated what appeared to be a mild nerve root irritation syndrome with sensory decreases and occasional motor components causing him to have intermittent weakness in his left knee. Further, the examiner explained that there were "probably also contributory orthopedic problems of arthritis in his major joints that cause him to have the difficulty in using his extremities." The examiner specifically stated that, neurologically, the Veteran had some minor deficits but no significant disability. Approximately one week later in April 1996, the Veteran underwent a VA joints examination. At that time, he reported having developed left shoulder pain five years ago and similar pain in his right shoulder three years ago. He also described some occasional numbness in his fourth and fifth right fingers. He made no orthopedic complaints regarding his knees or hands. A physical examination resulted in an impression of impingement syndrome of both shoulders. Subsequent VA medical records reflect radiographic findings of a comminuted fracture of the terminal tuft of the distal phalanx of the fifth digit with slight displacement of fracture fragments in October 1996. In May 1997, the Veteran complained of shoulder pain. In February 1998, the Veteran complained of right knee pain and left knee weakness. X-rays taken of both knees showed well-preserved medial and lateral joint spaces bilaterally as well as normal patellofemoral space. VA X-rays taken of the Veteran's knees in July 2001 showed narrowing of the medial joint space on the right side, well-preserved joint space on the left side, and narrowing of the patellofemoral space bilaterally. Additional VA medical records reflect outpatient treatment on several occasions between February and July 2002 for complaints of shoulder and knee pain. The VA physicians provided impressions of chronic pain secondary to degenerative joint disease. In November 2002, the Veteran sought VA medical care for complaints of chronic pain of multiple joints, including his knees and shoulders. The VA physician provided an impression of chronic pain secondary to degenerative joint disease. A private medical report dated in February 2003 includes the Veteran's complaints of bilateral knee pain. Following a physical examination, the examining physician provided an impression of degenerative arthritis of both knees and a probable flap tear of the left medial meniscus producing a synovitis. In December 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his degenerative joint disease. The VA examiner reported that the Veteran fell of a truck while he was in service. His STRs reflect complaints for left shoulder and back pain with resolution. He returned to duty immediately and there was no indication of chronic functional loss noted on his separation examination. The VA examiner concluded that the Veteran's degenerative joint disease of the shoulders and knees were related to the aging process, the Veteran's weight, and his active employment history. In June 2017, VA obtained an addendum VA medical opinion regarding the etiology of the Veteran's degenerative joint disease. The VA examiner reviewed the entire record. She opined that it was less likely than not that the Veteran's degenerative joint disease of multiple joints, including his shoulders, hands, and knees, had their onset during the Veteran's active service and was not caused by any event or injury during service. Based upon the evidence of record, the examination in August 1974 was without any diagnoses attributable to the shoulders, hands, or knees. There was no continuity of complaints or treatment after service until the early 1990s. Degenerative arthritis was noted as early degenerative arthritis in the shoulders in 1996 and around 2000 for the knees. The evidence did not show a continuity of symptomatology since service. Importantly, the pertinent evidence included in the claims folder indicates that a diagnosis of arthritis of the Veteran's hands has not been made. In this regard, the Board acknowledges that, according to the relevant post-service medical records, multiple diagnoses of degenerative joint disease of the shoulders and knees have been made. The first post-service evidence of a diagnosis of degenerative joint disease is dated in the 1990s when a private physician diagnosed early degenerative arthritis of the Veteran's left shoulder. This diagnosis occurred years after the Veteran's separation from the active military duty. Additionally, the Veteran filed his first claim for VA benefits in 1970. He claimed service connection for skin rash. The Veteran filed several other claims for VA benefits. However, he did not file his claim for service connection for degenerative joint disease until 2001. To the extent that the Veteran claims his degenerative joint disease began in-service or has continued since service, the Board does not find these statements credible. When he first filed his claim for VA benefits, he was silent regarding degenerative joint disease. Therefore, service connection may not be granted on a presumptive basis. With regard to direct service connection, the only medical opinions of record are negative. They were rendered by medical professionals who reviewed the record, examined the Veteran, interviewed him, and considered his lay statements regarding his in-service fall. They are highly probative regarding the etiology of the Veteran's degenerative joint disease. The only evidence in favor of the Veteran's claim is his lay statements. He is competent to report pain in his joints. However, his lay statements regarding the etiology of his degenerative joint disease are outweighed by opinions of the VA examiners. The VA examiners have specialized medical expertise and considered the Veteran's lay assertions. After a thorough review of the record, they found that the Veteran's degenerative joint disease was not at least as likely as not incurred during his active service. The preponderance of the evidence is, therefore, against the Veteran's claim for service connection for degenerative joint disease of multiple joints, including his shoulders, hands, and knees, and the reasonable doubt doctrine is not for application. See 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for degenerative joint disease of multiple joints, including the shoulders, hands, and knees is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs