Citation Nr: 21028303 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-23 271 DATE: May 10, 2021 ORDER Service connection for arthritis is denied. FINDING OF FACT Arthritis is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1953 to September 1983. He died in September 2020, and the appellant is his surviving spouse, who, in January 2021, was accepted as the substitute claimant for the purpose of processing this appeal to its completion. This matter comes 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. In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2015 and May 2016, the Board, in pertinent part, remanded the issue on appeal for additional development and, in August 2019, denied service connection for arthritis, characterized as rheumatoid arthritis of the shoulders and legs. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in August 2020, the Court granted a Joint Motion for Partial Remand that vacated the Board's August 2019 denial of such claim. In December 2020, following notice of the Veteran's death, the Board dismissed the case due to lack of jurisdiction. However, following the acceptance of the appellant as the substitute claimant, the Board remanded the case in January 2021 for additional development and it now returns for further appellate review. Entitlement to service connection for arthritis, claimed as rheumatoid arthritis of the shoulder and legs, to include as due to exposure to herbicide agents and/or as secondary to service-connected multiple myeloma. In the Veteran's initial claim, he asserted that he had rheumatoid arthritis of the shoulder and legs related to his military service, to include his acknowledged exposure to herbicide agents while serving in the Republic of Vietnam. In the alternative, the Veteran, and now the appellant, assert that such was proximately due to and/or aggravated by his service-connected multiple myeloma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The law also provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest to a specified degree within a specific time period, even if there is no record or evidence of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. As the Veteran served in the Republic of Vietnam from March 1966 to March 1967, he was presumed to have been exposed to herbicide agents coincident with such service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). However, as will be discussed below, he did not have a diagnosis of a disease acknowledged to be presumptively related to such in-service exposure during his lifetime. Nevertheless, the appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Additionally, service connection may be established on a secondary basis for a disability which 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 sufficient 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With respect to a current disability, while the record fails to show a diagnosis of rheumatoid arthritis during the Veteran's lifetime, as he originally claimed, multiple treatment records reflect diagnoses of osteoarthritis. In particular, X-ray examination in August 2007 revealed severe degenerative changes in the left glenohumeral joint and mild degenerative changes in the left acromioclavicular joint, and a December 2012 X-ray examination report shows a finding of degenerative changes of the lower lumbar spine and sacroiliac (SI) joints bilaterally. A July 2014 private treatment record reflects a report of "minimal deformities in hands, consistent with osteoarthritis", and private treatment records dated in December 2016, January 2017, and October 2018 demonstrate diagnoses of left knee osteoarthritis, osteoarthritis of the bilateral knees, and generalized osteoarthritis, respectively. As for an in-service event, illness, or injury, the Veteran's service treatment records are negative for complaints, treatment, or a diagnosis referable to arthritis. In this regard, the Board notes that, although a single August 1974 record shows that the Veteran wanted his back examined due to difficulty breathing and moving, the impression at that time was simply "musculoskeletal," and no further complaints, treatment, or diagnosis was rendered and his retirement examination was negative for any relevant findings and he denied all relevant symptomatology. Nevertheless, as noted above, VA has acknowledged the Veteran's exposure to herbicide agents coincident with his service in the Republic of Vietnam. However, osteoarthritis is not a disease for which service connection may be awarded on a presumptive basis due to such exposure. Moreover, a VA physician reported in February 2021 that osteoarthritis is "not thought to be related to herbicide exposures." Rather, she explained that osteoarthritis is related to aging and overuse, and is thought to arise with wear and tear of the joints over time. According to the VA physician, osteoarthritis typically has a slowly progressive onset and is worsened by activity/overuse, obesity, and tobacco. She also noted the absence of any signs of osteoarthritis in service, to include at the time of the Veteran's retirement examination, and stated that military service alone is not thought to cause osteoarthritis. Additionally, the February 2021 VA physician opined it is less likely as not that osteoarthritis of the left shoulder, lower lumbar spine and SI joints, bilateral hands, and bilateral knees manifested during or within one year of the Veteran's separation from active duty in September 1983. In support of such opinion, she noted that the aforementioned diagnoses of arthritis all occurred at least 24 years following the Veteran's retirement. Consistent with such determination, the contemporaneous medical evidence also does not demonstrate arthritis of the left shoulder, back, hands, or knees manifested within one year of the Veteran's discharge from service. In this regard, his June 1983 retirement examination report shows such body parts were normal upon clinical evaluation, and he denied all relevant symptomatology on the accompanying report of medical history. The February 2021 VA physician further opined it is less likely as not that the Veteran's osteoarthritis was caused or aggravated by his service-connected multiple myeloma. In particular, she found none of the records supported a finding that multiple myeloma aggravated osteoarthritis beyond its natural progression of the left shoulder joint, lower lumbar spine and SI joints, bilateral hand joints, or bilateral knee joints. The VA physician explained that, while multiple myeloma can cause the destruction of bones, it does not cause osteoarthritis or aggravate it. Further, she found probative that the diagnoses of osteoarthritis pertaining to the left shoulder, lumbar spine, SI joints, and bilateral hands were all documented prior to the diagnosis of multiple myeloma, and, although bilateral knee osteoarthritis was documented in 2017, there was no suggestion that such had anything to do with multiple myeloma or that the latter worsened the former. Upon review, the Board affords great probative weight to the February 2021 VA physician's opinions. In particular, she contemplated all pertinent evidence of record, to include the lay statements of record and the Veteran's relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the physician offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the VA physician clearly considered the Veteran's specific case, providing an alternative etiology for his osteoarthritis. Notably, there are no medical opinions that contradict the aforementioned opinions. In this regard, the Board has considered the lay assertions as to the etiology of the Veteran's osteoarthritis; however, as lay persons, neither the Veteran nor the appellant possess the requisite training and experience necessary to address such complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of osteoarthritis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the musculoskeletal system. Therefore, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran reportedly experienced during and after service were in any way related to his osteoarthritis is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the lay opinions as to the onset and etiology of the Veteran's osteoarthritis are not competent evidence and, consequently, are afforded no probative weight. The Board has also considered whether any lay statements support presumptive service connection for arthritis on the basis of continuity of symptomatology. However, the record does not reflect any such assertions and, as noted previously, the highly probative February 2021 VA examiner's opinion found that such disease did not manifest within one year of his separation from service. Therefore, presumptive service connection for arthritis, to include based on a continuity of symptomatology, is not warranted. In conclusion, the Board finds arthritis was not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by a service-connected disability. Consequently, service connection for such is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection for arthritis, such doctrine is inapplicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.