Citation Nr: 21023217 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-06 519A DATE: April 20, 2021 ORDER Entitlement to service connection for arthritis is denied. FINDING OF FACT The preponderance of the evidence is against finding that arthritis preexisted service, began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1974 to June 1977 and form March 1982 to April 1982. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2018. A transcript of that hearing has been associated with the claims file. This issue, along with the issue of entitlement to service connection for ankylosing spondylitis, was remanded by the Board in a June 2018 decision for further development. The issue of entitlement to service connection for ankylosing spondylitis was granted by the regional office (RO) in a June 2020 rating decision. As this is a full grant of the benefit sought, the issue of entitlement to service connection for ankylosis spondylitis is no longer on appeal. The June 2020 rating decision also granted service connection for bilateral hip sacroiliitis of ankylosing spondylitis for painful motion and for limited flexion. The issue of entitlement to service connection for arthritis is returned to the Board for appellate review. Entitlement to service connection for arthritis is denied. The Veteran asserts that he is entitled to service connection for arthritis on a direct basis. However, as outline below, the preponderance of the evidence of record demonstrates that the Veteran’s arthritis did not preexist service, manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). Under ordinary circumstances for veterans of active military wartime service or peacetime service on or after January 1, 1947, for purposes of 38 U.S.C. §§ 1110, 1131, and 1137, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b). This statutory provision is referred to as the ‘presumption of soundness.’ Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In VAOGCPREC 3-2003, VA’s General Counsel reinforced that the presumption of soundness is rebutted only where clear and unmistakable evidence shows both that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran’s entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52-53 (2012); see also 38 C.F.R. § 3.304(b) (‘Only such conditions as are recorded in examination reports are considered as noted.’). This presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby v. Derwinski, 1 Vet. App. 225 (1991). The two parts of this rebuttal standard are referred to as the ‘preexistence prong’ and the ‘aggravation prong.’ Horn, 25 Vet. App. at 234. The aggravation prong may be met by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits, and, conversely, where the presumption is not rebutted, the Veteran’s claim is one for service connection, and not aggravation. Wagner, 370 F.3d at 1096. In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). On the June 1974 service treatment record (STR) enlistment examination, the medical provider observed the Veteran’s upper extremities, lower extremities, and spine to be normal. On the June 1974 STR entrance report of medical history, the Veteran did not report any symptoms or disorders. On the June 1974 STR clinical record, the Veteran was not found to have any disqualifying disorder. On the May 1977 STR separation examination, the medical provider again observed the Veteran’s upper extremities, lower extremities, and spine to be normal. In an October 1977 private treatment record, the Veteran reported that he has never had any serious illness or injuries. On the September 1992 VA general examination, the Veteran reported that he experienced left knee pain from service. He stated that he experienced a sensation of laxity and “giving out.” The Veteran reported that he experienced bilateral hip pain since 1976. He stated that he has symptoms every two or three months that last two to three weeks. He stated that he was off work recently due to bilateral hip pain. On examination, the examiner observed no deformities in the back or neck but did indicate there was some tenderness in the back. In the knees, the examiner observed there to be discomfort in the left knee and tenderness around the patella but did not find effusion or bony deformities. The examiner observed the Veteran’s bilateral hips to show no gross bony deformities or point tenderness. The examiner observed the range of motion was intact in lower extremities. In a February 2009 private treatment record, the medical provider stated that the Veteran has a history of back and limb pain that started when he was 17 years old that was attributed to trauma, degenerative joint disease, and having a positive diagnosis with ankylosing spondylitis. In a January 2010 private treatment record, the medical provider recalled the Veteran complained of neck pain in August 2005 and returned in December 2005 complaining of acute positional neck pain for the prior two weeks. The medical provider confirmed from imaging that the Veteran had a disc herniation for which he underwent surgery in 2009. In an April 2011 VA treatment record, the medical provider indicated the Veteran has a prior medical history of osteoarthritis. In a September 2013 VA treatment record, the Veteran reported right shoulder pain associated with the neck. The medical provider observed osteoarthritis on films. At the February 2018 Board hearing, the Veteran testified that when he first enlisted, he experienced pain in his knees, hips, ankles, and feet during training. Board Hearing Transcript (T.) at 3. He stated that during service he continued to experience symptoms in the hip, knees, and feet. Id. On the June 2019 VA back examination, the examiner indicated the Veteran has diagnoses of ankylosing spondylitis of the lumbar spine, degenerative joint disease (DJD) of the lumbar spine, and ankylosing spondylitis of the sacroiliac joints bilaterally. The Veteran stated he has experienced low back pain since 17 years old, prior to military service. He stated that he developed an inability to perform his military responsibilities. On the June 2019 VA shoulder examination, the examiner indicated the Veteran does not have a diagnosis of the shoulder. Also, imaging showed no degenerative or traumatic arthritis. On the June 2019 VA hand examination, the examiner indicated the Veteran has degenerative arthritis of the bilateral hands, diagnosed in May 2019. The Veteran complained of bilateral hand pain for years but does not recall a specific date of onset. On the June 2019 VA knee examination, the examiner indicated the Veteran has a diagnosis of enthesopathy from ankylosing spondylitis in the right knee. The examiner indicated the Veteran does not have degenerative arthritis in the knees. The Veteran reported pain in the bilateral knees during military service. The Veteran stated he was unable to perform his training exercises during service in 1982 and he was discharged due to multiple physical complaints in the back, knees, and hips. The examiner stated there is evidence of right knee pain after a fall in August 1975 diagnosed as a contusion, but there is no other evidence of knee pain in service. On the June 2019 VA ankle examination, the examiner indicated the Veteran had avulsion fracture of the left lateral ankle but did not find the Veteran to have degenerative or traumatic arthritis. On the June 2019 VA neck examination, the examiner indicated the Veteran has diagnoses of degenerative arthritis of the cervical spine from January 2011, herniated disc from 2007, and neck pain from ankylosing spondylitis from May 2019. The Veteran stated he does not recall a time when he has not had neck pain. The examiner noted the Veteran’s first documented report of neck pain is from July 2005. The Veteran then developed acute worsening neck pain and was found to have a herniated disc and underwent surgery in 2007. Imaging after surgery demonstrated degenerative arthritis status post cervical fusion. On the June 2019 VA medical opinion, the examiner opined that the Veteran’s diagnosis of osteoarthritis is less likely than not caused by service. The examiner reasoned that the Veteran has been diagnosed with two types of arthritis. The examiner stated that the earliest diagnosis to address is the osteoarthritis diagnosis, generally not found in younger individuals except after trauma which the Veteran denies during service. The finding of osteoarthritis in the hands, lumbar spine, and thoracic spine are consistent with age-related osteoarthritis and postsurgical arthritis in the cervical spine. The examiner also noted the Veteran had a herniated disc that was found years after leaving service, which required surgery. While the Veteran did have a calcaneal fracture in the right heel during service between 1974 and 1977, there is no current evidence of any type of arthritis in the right heel. Also, the examiner found there is a report of a knee injury, but there is no evidence of osteoarthritis in this area. The examiner also explained in the June 2019 medical opinion related to ankylosing spondylosis that ankylosing spondylitis is the second form of arthritis the Veteran experiences. The examiner stated that while the Veteran reliably reports back pain and other joint pain prior to military service, there is no definitive evidence that he had ankylosing spondylitis prior to military service. On the entrance examination, the Veteran reported no arthritic pains. Upon review of the record, the Board finds that the Veteran’s arthritis did not clearly and unmistakably preexist service and the presumption of soundness attaches, as no disability was noted at entrance to service. 38 C.F.R. § 3.304(b). The June 2019 VA examiner stated no arthritic pain was noted at the Veteran’s enlistment examination. Further, the examiner opined that the Veteran’s arthritis is age-related osteoarthritis. Based on the foregoing, the Board concludes that there is no evidence that the Veteran’s arthritis was manifested in service or to a compensable degree in the first year following his separation from service. The first indication of arthritis occurred in 2011, over 20 years after separation from service. Consequently, service connection for arthritis on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from arthritis continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran’s arthritis is otherwise related to service. The Veteran’s post-service private treatment records are silent for an opinion relating his arthritis to service. The only competent evidence in the record that addresses this question is the June 2019 VA medical opinion, which stated that the Veteran’s arthritis was not related to his service and is instead caused by age. As there is no other evidence to the contrary, and the June 2019 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran’s own statements relating his arthritis to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, arthritis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for arthritis. Accordingly, it must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.