Citation Nr: 21066694 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-44 007 DATE: November 1, 2021 ORDER Service connection for rheumatoid arthritis, to include as secondary to service-connected non-hodgkin's lymphoma is denied. FINDINGS OF FACT 1. The Veteran's rheumatoid arthritis was not incurred in-service. 2. The Veteran's rheumatoid arthritis was not caused by exposure to Agent Orange during service in the Republic of Vietnam. 3. The Veteran's rheumatoid arthritis was not caused or aggravated by service-connected non-hodgkin's lymphoma. CONCLUSION OF LAW The criteria to establish service connection for rheumatoid arthritis have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1966 to December 1968, to include service in the Republic of Vietnam. The Veteran died in 2015. The Veteran's surviving spouse was properly substituted as the Appellant. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2014 rating decision of the Waco, Texas Regional Office (RO). In June 2021, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran received a total disability rating based on individual unemployability from February 11, 2014 to November 25, 2015 and special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of non-hodgkin's lymphoma rated 100 percent and additional service-connected respiratory disorder independently ratable at 60 percent or more from February 26, 2013 to June 30, 2013 and lung cancer rated 100 percent and additional service-connected liver cancer independently ratable at 60 percent or more from November 25, 2015. Service Connection Rheumatoid Arthritis Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Rheumatoid arthritis, as arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, rheumatoid arthritis will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Continuity of symptomatology may be established by (1) a condition "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). If the condition was one as to which a lay person's observation is competent, medical evidence of "noting" is not necessarily required. Id Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Appellant asserts that the Veteran's rheumatoid arthritis was caused by exposure to Agent Orange during service in Vietnam, or alternatively, that rheumatoid arthritis was aggravated by service-connected non-hodgkin's lymphoma because as a result of treating and/or managing non-hodgkin's lymphoma, the Veteran discontinued medication necessary to treat his rheumatoid arthritis. The claim will be denied on a theory of direct, presumptive, and secondary service connection. Military personnel records (MPRs) show that the Veteran served in the Republic of Vietnam from September 1967 to June 1968. Under the law, the Veteran is presumed to have been exposed to Agent Orange; however, rheumatoid arthritis is not a presumptive disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Service treatment records (STRs) do not show complaints or contemporaneous reports pertaining to rheumatoid arthritis. In the Veteran's December 1968 pre-separation medical examination report, the service medical examiner noted no autoimmune abnormalities. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). A July 1996 non-VA treatment record reflects the Veteran's diagnosis of rheumatoid arthritis since January 1996. The Veteran initially treated with Methotrexate and folic acid. In non-VA treatment records dated September 1996 to November 2003, the Veteran treated rheumatoid arthritis with Hydroxychloroquine, Propoxyphene, Methotrexate, Darvocet, Leucovorin, folic acid, Enbrel, and Remicade. A September 2006 non-VA treatment record noted the Veteran's rheumatoid arthritis as stable with intermittent exacerbation. A July 2010 non-VA treatment record reflects the Veteran's diagnosis of non-hodgkin's lymphoma. A December 2012 VA treatment record noted that the Veteran treated his rheumatoid arthritis only with Prednisone and that he "cannot take immune modulating agents due to history of lymphoma." In a March 2013 letter, a non-VA examiner indicated treating the Veteran since December 2003. The examiner noted the Veteran's treatment of rheumatoid arthritis with immunosuppressive therapy before his diagnosis of non-hodgkin's lymphoma. The examiner advised against using immunosuppressive medication with a history of lymphoma and noted that the Veteran treated with hydrocodone. The examiner opined that the Veteran's exposure to Agent Orange and development of lymphoma "directly impacted treatment of his rheumatoid arthritis" and that a progression of rheumatoid arthritis was anticipated. The non-VA medical opinion is of low probative value because the examiner did not consider the Veteran's then-current treatment of his rheumatoid arthritis with Prednisone and did not indicate the degree of aggravation of rheumatoid arthritis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion must be based on a full and accurate medical history); Reonal v. Brown, 5 Vet. App. 458 (1993). A December 2013 VA treatment record noted that the Veteran "is unable to take immunosuppressive medication for rheumatoid arthritis due to his history of lymphoma." In February 2019, the Board found the November 2013 VA negative etiology opinion as to aggravation for secondary service connection inadequate and remanded the claim for an adequate VA medical opinion. The November 2013 VA medical opinion is therefore of low probative value. A June 2015 VA treatment record reflects that the Veteran treated his rheumatoid arthritis with rituximab infusion once every six months. In an October 2015 letter, a non-VA examiner opined that treating rheumatoid arthritis with Methotrexate "can promote the development of non-hodgkin's lymphoma" and although the Veteran's non-hodgkin's lymphoma improved after discontinuing Methotrexate, his rheumatoid arthritis "has progressed since discontinuing methotrexate." The non-VA medical opinion is of low probative value because the examiner did not consider the Veteran's then-current treatment of his rheumatoid arthritis with Prednisone and other medication and did not indicate the degree of aggravation of rheumatoid arthritis. Nieves-Rodriguez, 22 Vet. App. at 295; Reonal, 5 Vet. App. at 458. In July 2020, the Board found the January 2020 VA negative etiology opinion as to aggravation for secondary service connection inadequate and remanded the claim for an adequate VA medical opinion. The January 2020 VA medical opinion is therefore of low probative value. In an April 2021 addendum, the VA examiner opined that the Veteran's rheumatoid arthritis did not manifest during service and was not caused by exposure to Agent Orange or non-hodgkin's lymphoma because rheumatoid arthritis is an autoimmune condition not caused by alternate etiologies, there were no related complaints during service, and the Veteran was initially diagnosed with rheumatoid arthritis in 1996 approximately 28 years post-service. The April 2021 VA addendum is highly probative as to direct service connection, presumptive service connection under § 3.309(a), and causation as to secondary service connection because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez, 22 Vet. App. at 295. In a July 2021 addendum, the VA examiner opined that the Veteran's rheumatoid arthritis was not aggravated by non-hodgkin's lymphoma, to include treatment of non-hodgkin's lymphoma for several reasons. The Veteran initially treated his rheumatoid arthritis with Methotrexate and switched to Remicade and Humira. The Veteran discontinued treatment with Humira in 2011 when he was diagnosed with non-hodgkin's lymphoma because biologics are not advised in case of malignancy. The Veteran began treating his rheumatoid arthritis with Prednisone in 2011 and medical records from 2013 reflect continued treatment with Prednisone. Additionally, the examiner noted that the March 2013 and October 2015 letters from the Veteran's non-VA treating physicians did not indicate the degree rheumatoid arthritis had progressed and although Methotrexate was discontinued, the letters did not address a change of treatment to Remicade, Enbrel, and Humira prior to the diagnosis of non-hodgkin's lymphoma and that the treatment change was unrelated to non-hodgkin's lymphoma. The examiner indicated that the letters did not address the Veteran's symptoms as controlled on Prednisone after the diagnosis of non-hodgkin's lymphoma. The July 2021 VA addendum is highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez, 22 Vet. App. at 295. Further, based on the evidence in this appeal, recent precedential caselaw precludes entitlement to secondary service connection. In Spicer v. McDonough, No. 18-4489 (decided September 14, 2021), the U.S. Court of Appeals for Veteran's Claims (Court) ruled that secondary service connection is not available for conditions that are prevented from improving by a service-connected disability, where the service-connected disability did not cause or aggravate that condition. In Spicer, the veteran argued that he was unable to have bilateral knee surgery due to the effects of chemotherapy in treating his service-connected leukemia. The Court rejected the Veteran's argument and found the phrase "resulting from" requires actual causality. 38 U.S.C. § 1110; Burrage v. United States, 517 U.S. 204, 210-11 (2014). The Court held that the phrase indicates "Congress's intention to provide compensation only in situations where there's an etiological link between service and a disability's onset or worsening." Spicer, supra. Similarly, in this appeal, the Veteran asserts that discontinuing certain medication to treat his rheumatoid arthritis in order to treat and/or manage his service-connected non-hodgkin's lymphoma, aggravated his rheumatoid arthritis. Consistent with Spicer, the Veteran's claimed aggravation of his rheumatoid arthritis did not "result from" discontinuing certain medication to treat his rheumatoid arthritis in order to treat and/or manage his service-connected non-hodgkin's lymphoma. Moreover, the Veteran and the Appellant, as a lay-persons, are not competent to provide a medical opinion as to the cause or aggravation of the Veteran's rheumatoid arthritis. 38 C.F.R. § 3.159(a)(1); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As to chronicity and continuity of symptomatology under § 3.309(a), there was no combination of manifestations sufficient to identify rheumatoid arthritis or that it was noted during service as evidenced by STRs not showing any complaints or contemporaneous reports pertaining to rheumatoid arthritis and the service medical examiner noted no autoimmune abnormalities at service separation. A preponderance of the evidence is against a finding that the Veteran's rheumatoid arthritis incurred in-service, was caused by exposure to Agent Orange during service, or caused or aggravated by service-connected non-hodgkin's lymphoma, to include treatment of non-hodgkin's lymphoma. The Veteran and the Appellant are not competent to provide a medical opinion as to the cause or aggravation of the Veteran's rheumatoid arthritis. There was no combination of manifestations sufficient to identify rheumatoid arthritis or that it was noted during service. The April 2021 VA examiner opined that the Veteran's rheumatoid arthritis did not manifest during service and was not caused by exposure to Agent Orange or non-hodgkin's lymphoma. The July 2021 VA examiner opined that the Veteran's rheumatoid arthritis was not aggravated by non-hodgkin's lymphoma, to include its treatment. Significantly, as noted, recent precedential caselaw precludes entitlement to secondary service connection based on the evidence in this appeal. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.