Citation Nr: 21002996 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 99-20 330 DATE: January 19, 2021 ORDER Entitlement to service connection for rheumatoid arthritis is denied. Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance or housebound status is granted. FINDINGS OF FACT 1. The evidence of record demonstrates a rheumatoid arthritis disability was not manifest currently nor at any time during the appeal period. 2. The evidence demonstrates that the Veteran requires the need for regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for rheumatoid arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to SMP based on the need for regular aid and attendance have been met. 38 U.S.C. § 1521; 38 C.F.R. § 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in January 2008, which granted a joint motion for remand (JMR) vacating a July 2006 Board decision and remanded the issues on appeal for additional development. The issues initially arose from rating decisions in August 1999 and January 2005 by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues were most recently remanded for additional development in July 2018. 1. Entitlement to service connection for rheumatoid arthritis. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Generally, the evidence 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 or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018).   Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has rheumatoid arthritis as a result of active service. He states he had rheumatoid arthritis for many years and that the pain and soreness began in service.   The pertinent evidence of record includes service treatment records without complaint, treatment, or diagnosis of rheumatoid arthritis. The Veteran denied having or having ever had arthritis or rheumatism in his July 1967 report of medical history. A July 1997 private treatment record noted the Veteran carried a diagnosis of rheumatoid arthritis, a March 1998 VA psychiatric examination report noted an Axis III diagnosis of rheumatoid arthritis, and a November 2004 private aid and attendance examination report noted a diagnosis of rheumatoid arthritis. No additional comments were provided as to the diagnoses. An October 2017 VA medical opinion found there was no clinical or objective evidence of rheumatoid arthritis. The examiner, in part, noted that the Veteran’s service treatment records did not show a diagnosis of rheumatoid arthritis and that a 1981 VA examination report indicated that there were no general medical diagnoses found. While a 1990 record indicated symptoms consistent with ankylosing spondylolysis, the examiner observed that another physician found it was highly suspicious of ankylosing spondylitis diagnosis. The examiner found that the findings and symptoms were more consistent with degenerative osteoarthritis that was most likely caused by normal physiologic aging. VA examination in April 2019 included a diagnosis of osteoarthritis. The examiner specified that the Veteran’s X-rays and a blood test were negative for rheumatoid arthritis. A June 2019 VA medical opinion found a review of the evidence of record and all relevant clinical records demonstrated no objective evidence of rheumatoid arthritis. Acknowledgement was made to the diagnoses of rheumatoid arthritis had been provided in March 1998 and November 2005. However, emphasis was placed on the fact that the more recent April 2019 VA report found no radiographic or serologic evidence of rheumatoid arthritis. Based upon the evidence of record, the Board finds that a rheumatoid arthritis disability was not manifest currently nor at any time during the appeal period. There is also no competent evidence of rheumatoid arthritis manifest during or within one year of active service. The June 2019 VA opinion is found to be persuasive and to have been based upon adequate rationale. The examiner is shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has been given to the medical reports dated in July 1997, March 1998, and November 2004 indicating diagnoses of rheumatoid arthritis. The Board finds, however, that those reports provided no information as to the basis for such diagnoses nor comments as to the veracity of the diagnoses. Notably, whereas the 2019 examinations included X-ray and serology studies for the negative conclusions made, the 1997, 1998, and 2004 diagnoses were not supported by such evidence. The Board finds these reports warrant a lesser degree of probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a diagnosis of rheumatoid arthritis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Consideration has also been given to the Veteran’s personal assertions that he has a low back disability as a result of service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a matter that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   In conclusion, the Board finds service connection for rheumatoid arthritis is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. 2. Entitlement to SMP based on the need for regular aid and attendance or housebound status. VA law provides that increased pension is payable to a veteran by reason of need for aid and attendance or by reason of being housebound. 38 U.S.C. § 1521; 38 C.F.R. § 3.351. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A veteran shall be considered to be in need of regular aid and attendance if that he or she is (1) is blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351. The following criteria will be considered in determining whether a Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).   A veteran will be considered to be permanently housebound when he or she is substantially confined to his or her dwelling and the immediate premises (ward or clinical areas if institutionalized) by reason of service-connected disability or disabilities reasonably certain to remain throughout his or her lifetime. 38 C.F.R. § 3.351(d). Based upon the evidence of record, the Board finds the Veteran requires the need for regular aid and attendance of another person. The pertinent evidence includes a June 2019 VA medical opinion noting that an April 2019 aid and attendance examination revealed mild longterm memory loss, nearly constant imbalance, decreased use of both hands, walking less than 100 feet with the aid of another person, marked difficulty with right and left upper extremity and ability to self-feed, inability to self-dress, bathe, and groom, mild limitation in toileting ability, lack of coordination of the lower extremities, unsteady gait and frequent falls, and lack of awareness of payments and bills. The examiner noted that the evidence clearly demonstrated the Veteran’s physical and mental limitations had progressed to the extent that he was confined to his immediate premises due to disability and unable to independently perform activities of daily living. A September 2020 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) noted the Veteran was not permanently bed ridden and that he was able to travel beyond his current domicile. The examiner found the Veteran had intermittent dizziness and imbalance affecting his ability to ambulate that impaired his ability to protect himself from daily hazards/dangers. It was noted he was unable to perform dressing and undressing, bathing, and grooming. A separate September 2020 VA medical opinion found that the Veteran required the help of his family for activities of daily living and that he would not be able to live on his own. The Board finds the evidence shows the Veteran is helplessness or so nearly helpless as to require the regular aid and attendance of another person. He is clearly shown to be unable to dress or undress himself, or to keep himself ordinarily clean and presentable. He is also shown to have an incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. As such, entitlement to SMP is granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.