Citation Nr: 21027955 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-14 599 DATE: May 7, 2021 ORDER Entitlement to service connection for chronic arthritis is denied. FINDING OF FACT Chronic arthritis manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for chronic arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to July 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in October 2019. Additional personnel records were obtained in November 2019 and the requested examination and opinion were obtained in December 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2018. A transcript of the hearing is of record. The Board notes that since the most recent adjudication of the appeal by the agency of original jurisdiction additional evidence has been associated with the file, specifically additional VA treatment records and examination reports. In April 2021, the Veteran, through his representative, stated that he wished to waive review of this evidence by the agency of original jurisdiction (AOJ) in the first instance. 38 C.F.R. § 20.1305(c). As such, the Board may consider this evidence in the first instance in its adjudication of the current appeal. 1. Entitlement to service connection for chronic arthritis. Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, (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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). With regards to a current disability, there is no competent evidence reflecting that the Veteran has been diagnosed with a generalized arthritic condition of any kind. While the Veteran and his representative have argued that he has arthritis in his left wrist, neither are competent to render such a diagnosis as to do so requires medical knowledge beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Both the December 2009 and December 2019 VA examination reports note that x-ray imagining reflects that the Veteran does not have left wrist arthritis. As such, there is no competent evidence of left wrist arthritis during the period on appeal. However, a September 2019 VA treatment record reflects that the Veteran reported a physician had told him he had a left wrist sprain following a fall. Further, during his hearing testimony the Veteran also reported arthritis in his toe and a March 2018 x-ray imaging report reflects mild degenerative changes of the first metatarsal phalangeal (MTP) joint of the left foot. As such, current disabilities have been shown. The Board notes that during his hearing testimony the Veteran also reported that he experienced pain in his elbow, knee and back. However, the Veteran is already separately service-connected for low back, left elbow, and left knee disabilities, and therefore these disabilities need not be considered herein. Concerning an in-service injury, the Veteran's service treatment records do not reflect treatment for or a diagnosis of generalized arthritis or treatment for any symptoms associated with either the Veteran's wrist or foot. While a March 1995 service treatment record notes that the Veteran reported to reserve service status-post left wrist surgery, the record does not reflect that the underlying injury or the surgery itself occurred during either the Veterans' active service or during a period of active duty for training (ADT) or inactive duty for training (IDT). Indeed, the March 1995 service record notes that the surgery was conducted by a civilian physician, showing that the surgery was not performed while on active duty. During his September 2018 hearing the Veteran generally testified that he started experiencing aches and pains due to physical labor in service. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, the Veteran denied any history of arthritis or painful joints in July 1990, August 1991, June 1992, and November 1993 dental health questionnaires. The Veteran then specifically denied any current or history of swollen or painful joints, bone or joint deformity, arthritis, rheumatism or bursitis, or foot trouble on his July 1992 separation report of medical history. The only issue reported was a history of left elbow pain, which is already service connected. The Veteran again denied any issues with broken bones, sprains, or casts in January 1993. The Veteran subsequently denied any injuries, illnesses or diseases in the past-12 months and any physical issues which might restrict performance on active duty in November 1993 and November 1994 annual certificates of physical condition. Finally, in July 1993, April 1994, and February 1995 the Veteran signed statements attesting to the fact that there had been no change in his physician condition. In light of the significantly inconsistent nature of the Veteran's statements concerning the onset of his reported joint pain, the Board finds that the Veteran's statement concerning an in-service onset of his wrist and toe pain are not credible, and therefore entitled to no probative weight. Id. As such, there is no competent or credible evidence of an in-service injury or disease. Further, there is no evidence of a nexus between the reported disabilities and service. While the Veteran has asserted that his arthritis is causally related to service, these statements are not competent as to render such an opinion requires medical training and knowledge beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana, 24 Vet. App. at 435. As such, these assertions are entitled to no probative weight. The Board notes that the Veteran has also reported that he has experienced generalized aches and pains, including toe and wrist pain, since service. However, as discussed above the Veteran's statements concerning the onset and persistence of his symptoms since service are significantly inconsistent. Caluza, 7 Vet. App. at 51112. The Veteran denied any history of arthritis or painful joints in July 1990, August 1991, June 1992, and November 1993 dental health questionnaires, specifically denied any current or history of swollen or painful joints, bone or joint deformity, arthritis, rheumatism or bursitis, or foot trouble on his July 1992 separation report of medical history, and then again denied any issues with broken bones, sprains, or casts in a January 1993 medical history report. A June 2017 treatment record shows that the Veteran reported pain in his left toes after hitting the leg of a table. A September 2019 treatment record reflects that the Veteran reported with complaints of left wrist pain following a fall while playing with his grandchild. At neither time did the Veteran endorse a history of pain dating back to service. As the Veteran's statements concerning continuity since his active service are inconsistent with the other evidence of record, the Board finds them to be not credible and entitled to no probative weight. Id. VA obtained medical opinions in December 2009 and December 2019. The December 2009 examiner stated that it was at least as likely as not that the left wrist disability was causally related to the Veteran's service based on treatment for the disability in service. However, this opinion appears to be based on an incorrect factual premise. While a March 1995 service treatment record reflects that the Veteran presented status-post left wrist surgery, the report in no way indicates that the underlying injury or the surgery itself occurred during active service or a period of ADT or IDT. The diagnosis provided at the time was simply status-post wrist surgery, with no known underlying cause, and the record specifically notes the surgery was conducted by a civilian doctor, thus ruling out that the surgery occurred during active or reserve service. As such, the opinion is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 46061 (1993). The December 2019 examiner stated that the Veteran's claimed left wrist arthritis was less likely than not related to service, as radiographs taken at the time and the rest of the evidence in the file did not reflect that the Veteran had degenerative changes of the left wrist of any kind. There is no evidence that the examiner was either not competent or credible. As such, the Board finds that the opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As discussed above, a June 2017 VA treatment record reflects that the Veteran reported an onset of left toe pain after hitting his foot on a table leg, and a September 2019 record notes the Veteran reported left wrist sprain after falling while playing with his grandchild. White v. Illinois, 502 U.S. 346, 356 (1992) (finding that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). None of these records attribute either disability to service, nor do they reflect that the Veteran reported any prior history of pain or injuries. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding of a nexus. The Veteran's assertions that the disabilities are directly related to service are not competent, and the statements concerning continuous symptoms since service are not credible. While the December 2009 opinion provided a positive opinion, this appears to have been based on the erroneous assumption that the surgery or underlying injury occurred during active duty, when instead the record clearly reflects the surgery was performed by a civilian doctor with no indication that such surgery was related to an injury or onset during any service period. Conversely, the December 2019 examination notes that the record did not support a diagnosis of arthritis of the left wrist that could be attributed to service. Further, the Veteran specifically reported alternative precipitating injuries for the toe and wrist pain in his treatment records. As the preponderance of the evidence is against a nexus, service connection is not warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. There is no competent or credible evidence that the Veteran is currently diagnosed with a generalized arthritic disability. 38 C.F.R. § 3.309(a). While the Veteran has been diagnosed with degenerative changes of the left first MTP joint, there is no evidence of manifestation to a compensable degree during the Veteran's active service. The first evidence of complaints of pain occurred in June 2017, after the Veteran hit his foot on the leg of a table, and a diagnosis of arthritis was not rendered until March 2018, well after separation. As such, presumptive service connection is not warranted in this case. 38 C.F.R. § 3.307(a)(3). (Continued on the next page) The preponderance of the evidence weighs against a finding that the Veteran's claimed chronic arthritis is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.