Citation Nr: 21000913 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 10-46 372 DATE: January 6, 2021 ORDER Entitlement to service connection for multiple joint arthritis of the left shoulder, lumbar spine, and bilateral knees, claimed as multiple joint pain, is granted. REMANDED Entitlement to service connection for bilateral nuclear sclerotic cataract, claimed as bilateral eye disorder, is remanded. FINDING OF FACT The evidence of record supports a finding that the Veteran’s multiple joint arthritis of the left shoulder, lumbar spine, and knees was related to his active service. CONCLUSION OF LAW The criteria for establishing service connection for multiple joint arthritis of the left shoulder, lumbar spine, and knees, have been met. 38 U.S.C. §§ 1110, 1131, 1154(a); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1976 and from December 1983 to December 2001. The Veteran passed away in February 2016, while this appeal was pending, and the Appellant is the Veteran’s spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Decatur, Georgia. However, jurisdiction over these claims is currently before the RO in Atlanta, Georgia. In May 2015, the Veteran had a hearing before the undersigned judge via a Travel Board and a transcript of that hearing is of record. In October 2015 and October 2020, these claims were remanded by the Board for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical examination is inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to report his or her symptoms, as a layman; however, his or her opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for multiple joint arthritis, claimed as multiple joint pain The Veteran contended that he experienced symptoms of arthritis, specifically joint pain (in all of his joints, to include the left shoulder, back, knees, elbow, hands, right hip, and ankles), since his active duty service. The Veteran was already service connected for a right shoulder disability at the time of his death. The Appellant continued to pursue this appeal. The Board points out that service connection for lupus was also previously awarded and that a common symptom of lupus is joint pain. A November 2009 treatment note shows that the physician attributed the Veteran’s joint pain in his shoulders, hands, and knees to his lupus. While a January 2012 treatment note reflects that the physician referred to the Veteran’s joint pain as arthritis that the physician noted could be related to lupus arthritis. The Board further notes that VA examinations from October 2013 diagnosed the Veteran with left shoulder and back degenerative joint disease and bilateral knee degenerative joint disease; and VA examinations from December 2015 diagnosed the Veteran with degenerative joint disease. Accordingly, the first element for establishing service connection has been met. The first nexus opinion relating to the Veteran’s degenerative joint disease was obtained in October 2013. Degenerative joint disease was found in the left shoulder, lumbar spine, and knees, but not the hands or elbows. The VA examiner concluded that the Veteran’s left shoulder degenerative joint disease, lumbar spine, and bilateral knee degenerative joint disease were more likely than not related to age. The examiner also specifically noted that the Veteran’s arthritis was a known diagnosis that was not associated with Gulf War service and that it was also not a systemic problem associated with the Veteran’s lupus. Another VA medical opinion as to the etiology of the Veteran's multiple joint arthritis was obtained in December 2015. The examiner noted that the following joints had pain that was attributed to arthritis: the right shoulder, knees, and right hand/fingers. The boxes for the elbows, hips and ankles were not checked. The VA examiner reviewed the Veteran's claims file and opined that his arthritis was not likely caused by the Veteran’s service in Southwest Asia. The examiner was unable to provide any opinion as to whether the multiple joint arthritis was aggravated by the Veteran's lupus due to the fact that he experienced compounding medical comorbidities. In October 2020, the Board concluded that a remand was necessary to make a fully informed decision, since the December 2015 VA examiner did not provide an opinion as to whether the multiple joint arthritis was caused or aggravated by his service-connected lupus, as both disabilities could manifest with joint pain. Pursuant to the October 2020 Board remand, an addendum opinion was obtained. In the opinion, the VA examiner concluded that the Veteran’s multiple joint arthritis was less likely than not caused or aggravated by his service-connected lupus, as the Veteran’s lupus is a primarily discoid, which is limited to the skin and does not impact his joints. The Board finds the October 2020 opinion is entitled to probative weight, as the examiner's opinion was based on a thorough evaluation of the medical record and a review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the opinion is of high probative value. However, notwithstanding the fact that the record contains multiple opinions regarding whether the Veteran’s joint arthritis is related to the Veteran’s lupus, the Board does not find a competent and persuasive opinion that properly considers the Veteran’s statements of continuing joint pathology since service and then explain why the Veteran’s left shoulder, lumbar spine, and bilateral knee degenerative joint disease are not directly related to such service. Accordingly, the Board finds that based on the Veteran’s credible testimony of continuing joint pain since service at his hearing before the undersigned in May 2015 with respect to the left shoulder, back, and knees, and the fact that arthritis is a chronic disease capable of being linked to service by way of such testimony, the Board will give the Appellant the benefit of the doubt, and conclude that service connection is warranted for the confirmed diagnoses of left shoulder, lumbar spine, and bilateral knee arthritis. REASONS FOR REMAND Entitlement to service connection for bilateral nuclear sclerotic cataract, claimed as bilateral eye disorder, is remanded. The Veteran alleged that his eye disability was caused by his service-connected lupus, to include his lupus medication. The Appellant continued to pursue this appeal. Regrettably, yet another remand is necessary for further evidentiary development of the Appellant's appeal. In conjunction with his claim, the Veteran was afforded a VA examination in December 2015, prior to his death. At the time of the examination, the VA examiner indicated that he had reviewed the Veteran’s medical records. Following examination of the Veteran and review of the file, the examiner diagnosed the Veteran as having bilateral nuclear sclerotic cataract. The examiner concluded that the Veteran’s bilateral eye disability was less likely than not caused or aggravated by his service-connected lupus, concluding that it was more likely caused by aging. In October 2020, the Board noted that there was no explanation for the conclusory opinion and remanded the claim to obtain an additional VA medical opinion regarding the etiology of the Veteran's bilateral eye disability. Pursuant to the October 2020 Board remand, an addendum opinion was obtained. In the opinion, the VA examiner concluded that the Veteran’s bilateral eye disability was less likely than not caused or aggravated by his service-connected lupus, also concluding that it was more likely caused by aging. The examiner’s rationale is based solely on the fact that the eye disability regularly occurs in the general population due to aging, but not explain why this is the more likely explanation for the Veteran’s cataracts. Accordingly, another remand is necessary to obtain a VA medical opinion regarding the etiology of the Veteran's bilateral eye disability to ensure compliance with the October 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from a VA examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed bilateral eye disability. The claims folder, including a copy of this remand, the Veteran’s lay statements, and medical records, should be made available and be reviewed by the examiner. Following a complete review of the evidence of record, the examiner is asked to provide an opinion as to whether the Veteran’s diagnosed bilateral eye disability was at least as likely as not caused or aggravated by his service-connected lupus, to include due to his lupus medication. The examiner should specifically address the Veteran’s lupus medication and note whether the medication could cause or aggravate the Veteran’s bilateral eye disability. Conclusory statements that do not address the Veteran’s specific disability are not a sufficient rationale. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.