Citation Nr: 1808697	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  04-42 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for arthritis of joints other than the feet or spine, to include as secondary to service-connected frostbite of the feet.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran had active military service from March 1983 to February 1986 and from September 1988 to October 1991, with subsequent periods of reserve service from 1997 to 2002.

This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2003 RO decision.

The Veteran testified before the undersigned Veterans Law Judge at a January 2013 videoconference hearing; a transcript of the hearing is of record.

This case was previously remanded to the Agency of Original Jurisdiction (AOJ) in March 2008, April 2010, May 2013 and November 2014, for scheduling of a Board hearing and for additional development. 

In an April 2016 rating decision, the AOJ granted service connection for frostbite of the bilateral feet.

In an April 2017 decision, the Board denied service connection for arthritis of the feet and for a back disability (to include degenerative joint disease of the lumbar spine). The issue of service connection for arthritis of joints other than the feet was remanded to the AOJ for additional development. The case was subsequently returned to the Board. 



FINDING OF FACT

The preponderance of the competent and credible evidence shows that the Veteran does not have current arthritis that was manifested during active service or to a compensable degree within the first post-service year after active service, or is otherwise related to service or a service-connected disability.


CONCLUSION OF LAW

Claimed arthritis was not incurred in or aggravated by service or a service-connected disability, and arthritis may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist a claimant with her claim. VA's duty to notify was satisfied by letters dated in September and October 2002. 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). Additional notice was provided in subsequent letters, and the claim was most recently readjudicated in November 2017.

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of her claim, which is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted written statements and hearing testimony in support of her claim. VA has obtained service treatment records (STRs), VA and private medical records, records from the Social Security Administration (SSA), assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology of the claimed disability. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

The Board also notes that actions requested in the Board's prior remands have been undertaken. In March 2008, the Board remanded this appeal for scheduling of a Board hearing, to provide the Veteran with additional notice, and to obtain additional service treatment records. In April 2010, the Board remanded this case for scheduling of a Board hearing. In May 2013, the Board remanded this case to obtain additional service treatment records, additional VA and private medical records, and SSA records, and for VA examinations. In November 2014, the Board remanded the case because there was not substantial compliance with the prior remand actions, and again asked the AOJ to obtain additional VA medical records dated prior to 2001, as well as SSA records, and to verify the Veteran's periods of service and obtain leave and earnings statements. 

Additional extensive VA medical records, including records dated prior to 2001, have been obtained and associated with the claims folder. Service treatment records, service personnel records, leave and earnings statements, and SSA records were also obtained, and a Board hearing was held. The Board notes that leave and earnings statements have not been obtained for all periods of service. However, there is no indication that remand for these records would result in any additional evidence that would be beneficial to the Veteran's appeal, particularly since the Veteran contends that her claimed disabilities were incurred during her first period of active duty, and such records are on file. Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Soyini v. Principi, 1 Vet. App. 540, 546 (1991). 

The AOJ wrote to the Veteran in June 2016, asking her to identify which type of arthritis (part of the body) she was claiming as secondary to her frostbite of the feet. She did not respond. 

In April 2017, the Board remanded this case for the Veteran to clarify which joints (other than the feet) she is claiming are affected by arthritis, and for an addendum medical opinion as to the claimed arthritis. In August 2017, in response to the AOJ's July 2017 letter asking for such clarification, the Veteran again failed to clarify which joints she is claiming. She stated merely that she could not write after a few sentences, which suggests that she is claiming that she has arthritis of the hands. The duty to assist is not always a one-way street and if a Veteran desires help with her claim she must cooperate with VA's efforts to assist her. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). An addendum medical opinion was obtained in September 2017.

Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 

The Board finds that the VA examinations are collectively adequate and probative for VA purposes because the examiners relied on sufficient facts and data, considered the Veteran's reported history, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).


Service Connection

In her September 2002 claim, the Veteran filed claims for service connection for a frostbite condition and an arthritis condition secondary to frostbite. She asserted that her frostbite occurred in June 1984, and her arthritis began in September 1988 and was treated from September 1988 to October 1991. At that time, she did not identify which joints she was claiming were affected by arthritis. In contrast, at her January 2013 Board hearing, she said she first received treatment for arthritis in 1998. See hearing transcript at page 5.

The Veteran currently contends that she has arthritis of unspecified joints. Despite repeated requests by VA, she has failed to specifically identify which parts of her body, other than her feet and spine, she believes are affected by arthritis. As noted above, service connection has previously been denied for arthritis of the feet and for degenerative joint disease of the spine, and these issues are no longer in appellate status. In August 2017, the Veteran again failed to clarify which joints she is claiming. She stated merely that she could not write after a few sentences, which suggests that she is claiming that she has arthritis of the hands.

At her January 2013 Board hearing, she testified that in her primary MOS as a cook, she was frequently out in the field in Germany from 1983 to 1986, and had frostbite a couple of times. She stated that her feet were warmed, and then she was sent back on duty. At the January 2013 Board hearing, her representative stated that her last period of active duty was in 1991, and that her claimed conditions began taking a toll on her during subsequent reserve service. The Veteran related that she reenlisted in the reserves in 1997, and had no military service for the intervening six years. See hearing transcript at page 35. She stated that she last performed reserve duty in 2002, when she was placed on inactive status, and was separated in 2003. She reported making complaints and receiving treatment beginning in 1998, and currently took medication for arthritis. She said she started having joint issues in the early 1990s, but did not seek help until it got to the point where she was having trouble walking and was falling. The Veteran's representative stated that she did not complain of her medical problems during her period of reserve service so that she could stay in the reserve. At the hearing, the Veteran did not report any in-service injury to joints other than the feet or back.

By a statement dated in August 2017, the Veteran said she had proof that she was frostbitten, and her arthritis was secondary to the frostbite. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). 

Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). 

Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

A Veteran is presumed in sound condition when examined and accepted for service, except for defects or disorders noted at entrance to service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. §§ 3.303 (a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

Under the law, active military service includes (1) active duty (AD), but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24)(B); 38 C.F.R. § 3.6 (a).

As a threshold matter, "veteran" status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status").

To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). The Board observes that the Veteran has not yet established veteran status with regard to any periods of military service other than March 1983 to February 1986 and September 1988 to October 1991. The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that she is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998).

Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ACDUTRA or INACDUTRA, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991).

Presumptive periods for service connection do not apply to ACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Acciola v. Peake, 22 Vet. App. 320, 323-324 (2008).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the nonservice-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran had active military service from March 1983 to February 1986 and from September 1988 to October 1991. She had no subsequent military service until September 1997, and thereafter had subsequent periods of reserve service until her discharge in September 2003. Service personnel records reflect that the Veteran's primary military occupational specialty (MOS) was food service specialist.

The Board notes that at times, the Veteran has claimed she had Gulf War illnesses. She also denied exposure to environmental hazards in the Gulf War in her initial claim. Service personnel records show that she had no service in Southwest Asia (see January 2012 memorandum from the National Personnel Records Center), and her DD Form 214 from her 1988-1991 period of active service shows that she had no foreign or sea service. Thus, statutes and regulations pertaining to undiagnosed illness are not for application.

Service treatment records are entirely negative for arthritis. In a January 1988 report of medical history, the Veteran denied a history of arthritis, rheumatism or bursitis, swollen or painful joints, and problems with bones, joints, shoulders, elbows, knees and feet. Service treatment records from the Veteran's reserve period of service reflect that on enlistment examination in September 1997, the Veteran's upper extremities, feet, and lower extremities were clinically normal. In a September 1997 report of medical history, the Veteran denied a history of arthritis, rheumatism or bursitis, swollen or painful joints, and problems with bones, joints, shoulders, elbows, knees and feet. 

VA medical records dated from 1999 to the present reflect treatment for multiple medical conditions.  A May 2001 VA primary care note reflects that the Veteran complained of abdominal pain, leg and hand swelling, and occasional joint pain. The Veteran reported that she did not get sick or injured during service. 

A November 2001 VA primary care note reflects that the Veteran complained of degenerative joint disease and low back pain. It was noted that she was a member of the Army Reserve, and that due to her depression, anxiety, abdominal pain, and back pain she was reportedly unable to perform her duties in the reserve until the work-up was completed. A December 2001 progress note reflects that active problems included back pain, degenerative joint disease, and low back strain, among others. A May 2002 X-ray study of the hips was unremarkable. An August 2002 X-ray study of the bilateral knees was normal; arthritis was not shown.

A September 2002 VA nursing note reflects that the Veteran complained of low back pain. She said she was in a car wreck, and had swelling in her hands, abdomen and legs, and had been checked for arthritis. A September 2002 VA orthopedic consult reflects that the Veteran reported that she had an auto accident six years ago (i.e. in 1996) in which she injured her back. She said her friend died as a result of the accident. She stated that she had back pain off and on since then. She reported knee pain and weakness in her legs, occasionally fell, and had knee swelling. She also reported injuring her knees two years ago when she fell while descending stairs. The examiner noted that an X-ray study of the knees showed no gross abnormality. The diagnoses were chronic low back pain, bilateral chondromalacia patella, and rule out herniated disc. A September 2002 X-ray study of the lumbosacral spine showed left-sided scoliosis and minimal degenerative changes of the lumbar spine. 

An October 2002 VA physical therapy consult reflects that the Veteran reported that she fell about 1.5 years ago and injured her left leg; she said the leg was dented but not broken. She complained of swelling of the back, stomach, hips and knees, and said she had degenerative joint disease and rheumatoid arthritis of the knees and hips. She said her knees hurt constantly for years, and this started several years ago. She also complained of ankle pain. The physical therapist did not diagnose arthritis. 
An October 2002 VA outpatient treatment record reflects that the Veteran complained of several medical problems including degenerative joint disease. 

In a November 2002 statement, the Veteran reported that her physical therapist told her that degenerative joint disease and low back pain is not always an inherited condition, and that it was brought on by hard work.

A January 2003 VA orthopedic consult reflects that the Veteran complained of back pain and said, "My back hurts I fall down all the time." The physician stated that the Veteran had long-term back problems, and came in with a CT scan which revealed minimal degenerative changes without any evidence of disc herniation. She complained of pain and swelling in the L5-S1 region. On examination, she did not have a true dermatomal radicular component. She ambulated with a cane and stiff back, but when distracted, straight leg raise test was negative. The diagnosis was degenerative joint disease of the lumbar spine, secondary gain, related to low back pain with patient currently receiving mental health care. The examiner did not think that there was much that could be done to further help her with orthopedic intervention. She did not need surgery and had no true muscular weakness. The Veteran had no other complaints and the physician did not diagnose arthritis of any joints other than the back.

VA medical records reflect that a May 2002 X-ray study of the hips was performed because of complaints of hip pain, and was unremarkable. An August 2002 X-ray study of the bilateral knees was normal. 

A report of an October 2004 disability determination evaluation performed for SSA reflects that the Veteran reported having been diagnosed with degenerative joint disease in the lower back, and of arthritis in her joints, specifically the hands, elbows, shoulders, hips, knees, and ankles. The examiner diagnosed degenerative joint disease in the lumbar spine, by history, and rule out arthritis versus other pathology in various joints.

An June 2005 SSA examination reflects that the examiner diagnosed bilateral knee pain with possible left knee internal derangement, and possible early osteoarthritis. 

A January 2004 VA outpatient treatment record reflects that the Veteran's upper and lower extremities were normal. The diagnostic impression was osteoarthritis, PTSD, depression, and anxiety. The Veteran reported that her arthritis pain was better with Darvocet.

A February 2004 VA progress note reflects that the Veteran reported that she suffered frostbite during service in Germany, and she believed this caused her arthritis to flare up. Arthritis was not diagnosed.

A report of an October 2004 disability determination evaluation performed by E.E., D.O., for SSA reflects that the Veteran complained of low back pain, abdominal pain, arthritis, anxiety and depression. She reported having been diagnosed with degenerative joint disease in the lower back, and of arthritis in her joints, specifically the hands, elbows, shoulders, hips, knees, and ankles. The examiner diagnosed degenerative joint disease in the lumbar spine, by history, and rule out arthritis versus other pathology in various joints.

SSA records dated in November 2004 reflect that the Veteran reported that she was status post MVA with recurrence of low back pain.

A report of a May 2005 private psychological evaluation performed for SSA reflects that the Veteran's most recent job was a truck driver, driving an 18-wheeler, a job she held for 6 years, until she quit in 2001 due to "swelling up in pain." She said she had frostbite in her feet and back problems in service.

A report of a June 2005 private internal medicine examination performed by K.B., MD for SSA reflects that the Veteran reported that she had neck pain with gradual onset over the last six to seven years, and lower back pain with gradual onset over the last seven years. She also complained of bilateral knee pain, abdominal pain, and leg swelling. She stated, "All my joints are disappearing." The pertinent diagnostic impressions were chronic musculoskeletal cervical, thoracic and lumbar spine pain with CT evidence of lumbar degenerative disc disease, bilateral knee pain with possible left knee internal derangement, and possible early osteoarthritis. It was noted that there was knee crepitation suggestive of osteoarthritis. 

A May 2006 SSA decision reflects that the SSA determined that the Veteran had severe impairments from degenerative joint disease of the lumbar spine, depression, anxiety, residual abdominal pain from prior surgery and bilateral chondromalacia of the patella.

A March 2007 VA outpatient treatment record reflects that the Veteran complained of multiple medical problems including degenerative joint disease. 

At a July 2008 SSA psychological disability determination examination, the Veteran stated that she had degenerative joint disease that caused back pain, as well as bilateral knee pain and rheumatoid arthritis of the arms and legs. She also stated, "I was born with spina bifida and scoliosis. That's what caused the degenerative joint disease."

On VA spine examination in September 2013, the examiner diagnosed limited degenerative joint disease of the lumbar spine with stenotic changes, and opined that the Veteran's arthritis and stenotic changes were most likely related to age. 

At a September 2013 VA cold injury examination, the Veteran reported that while stationed in Germany in approximately 1984, she was exposed to temperatures well below zero, and her toes and feet were frostbitten. She said she was not seen for the condition or treated by medical personnel. She reported that soon after this incident, she started having numbness and tingling in her toes that became progressively worse. She also reported that her feet were always cold and red. She also complained of constant "arthritis pain" in her feet and toes. The examiner noted that X-ray studies were performed of her right and left feet in September 2013, and there was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions in either foot. The examiner stated that the X-ray studies of her feet were normal. 

On VA spine examination in March 2015, the examiner diagnosed degenerative arthritis of the thoracolumbar spine. The examiner opined that her degenerative disc disease was a part of generalized degeneration due to age. 

A January 2016 addendum VA medical opinion reflects that the examiner stated that as noted on his prior compensation examination in March 2015, the Veteran has evidence of nerve damage that includes numbness and locally impaired sensation of right and left foot. 

A May 2016 VA medical opinion reflects that when asked if it was at least as likely as not (probability of at least 50 percent), that any current arthritis had its clinical onset during a verified period of active service or ADT, or is otherwise etiologically related to the Veteran's active service, including any injury incurred during a period of active service, ADT or IDT, the examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner provided a rationale for the opinion, noting that in thoroughly reviewing the Veteran's service treatment records, there was no diagnosis and treatment for arthritis in period of active service or ADT, or IDT. 

A June 2016 VA addendum medical opinion reflects that the examiner stated that a review of the Veteran's service treatment records showed no documented acute or chronic diagnosis of arthritis of any joint and its treatment in service including both ADT or IDT. The examiner also stated that he examined this Veteran in March 2015 for frostbite or cold injury exposure, and the Veteran complained of bilateral foot arthralgia or pain, but her X-ray revealed no documented traumatic, osteoarthritis, or degenerative arthritis of her bilateral feet. He indicated that it was his opinion as a physician that radiological evidence was required for a diagnosis of arthritis. Therefore, since the X-ray study did not show arthritis, the question of causation or aggravation of arthritis by her frostbite or cold injury exposure did not arise. He also reviewed the cold injury exposure diagnosis and management of long term sequelae book from the Veterans Health Initiative of EES, and although it mentioned that possible long term sequelae included arthritis of the affected part of joints, this Veteran did not have radiological evidence of arthritis of her bilateral feet. 

VA primary care notes dated in 2016 reflect that the Veteran takes Meloxicam daily for joint, back and arthritis pain.

In a September 2017 VA medical opinion with regard to whether claimed arthritis of the joints was related to service or a service-connected disability, the examiner opined that the Veteran had no documented acute or chronic diagnosis of arthritis of any joint and its treatment in service including both ADT and IDT, and a review of her VA medical records showed no documented arthritis of the any joints of the body. The examiner stated that therefore he could not offer a medical opinion, because such knowledge is not available in any medical literature and any opinion would be speculation. 

The Board has reviewed all of the evidence of record and concludes that the preponderance of the competent and credible evidence is against the claim of service connection for arthritis of unspecified joints. Service treatment records are entirely negative for arthritis, or complaints or symptoms relating to any joints other than the back and feet (which are not at issue).

With regard to post-service medical evidence, some of the recent medical records reflect that the Veteran stated that she had arthritis and degenerative joint disease of various joints, there is no X-ray evidence of arthritis of any joints (excluding the spine, which is not at issue). The Board finds that the Veteran's reported history of the claimed condition during medical treatment is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (The mere transcription of medical history does not transform the information into competent evidence merely because the transcriber happens to be a medical professional. Evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute the required competent evidence.).

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131requires existence of present disability for VA compensation purposes).

The Board finds that the May 2016, June 2016, and September 2017 VA medical opinions constitute probative evidence against the Veteran's claim of service connection for arthritis. They are based on current examination results and a review of the entire medical record. The examiners opined that the Veteran does not have arthritis, and explained the opinions with references to the Veteran's active duty and post-service medical history. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA examiners sufficiently discussed the underlying medical rationale of the opinions, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991).

The Board has considered the Veteran's contentions but finds that they are of limited probative value, and are outweighed by the medical evidence, which reflects that X-ray studies are negative for arthritis.

The Board also finds that there is no competent and credible evidence of record showing that she has current arthritis that is related to service or was manifested to a compensable degree in the first year after active service.

Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether she has arthritis of the joints) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4   (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of this claim.

In summary, the preponderance of the evidence shows that there is no evidence of record documenting a diagnosis of arthritis for which service connection can be considered. Accordingly, the preponderance of the evidence is against the claim and service connection for arthritis must be denied. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56.


ORDER

Service connection for arthritis is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs