Citation Nr: 9825657 Decision Date: 08/26/98 Archive Date: 07/27/01 DOCKET NO. 95-41 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for systemic arthritis, to include arthritis of the neck, back, shoulders, fingers and toes, right hip, knees, and right ankle. 2. Entitlement to service connection for arthritis of the left elbow, as secondary to the service-connected left elbow disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Crawford, Associate Counsel INTRODUCTION The veteran had active service from January 1967 to July 1970. This appeal arises from a November 1994 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. On appellate review in June 1997, the Board of Veterans' Appeals (Board) remanded the case for additional development. After completing the requested development and readjudicating the issues on appeal, the case has been returned to the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that his service-connected fracture of the left elbow disability caused his currently diagnosed arthritis of the left elbow, shoulders, cervical and lumbar spine, fingers and toes, right hip and right ankle. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran's claim of entitlement to service connection for systemic arthritis is not well grounded and that the evidence is at least in equipoise and thus supports the claim of entitlement to service connection for arthritis of the left elbow. FINDINGS OF FACT 1. Service connection for residuals of a fracture of the left elbow is in effect. 2. The competent evidence of record does not indicate that the veteran's systemic arthritis to include arthritis of the shoulders, cervical and lumbar spine, fingers and toes, right hip and right ankle was incurred in service, aggravated by service, manifest to a compensable degree within a year after service, or related to any service-connected disability. 3. The arthritis of the left elbow developed as secondary to the service-connected residuals of a fracture of the left elbow. CONCLUSIONS OF LAW 1. The claim for service connection for veteran's systemic arthritis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's arthritis of the left elbow is proximately due to the service-connected fracture of the left elbow. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background In this case, it is initially noted that a July 1970 Record Transmittal Request Report shows that the veteran's health records were lost at an overseas station. It is also noted that in the June 1997 remand, the Board asked the RO to request that the National Personnel Records Center (NPRC) conduct a second search of the veteran's service medical records. In response, the veteran's September 1966 entrance examination report and June 1970 discharge examination report was obtained. Nevertheless, in spite of the foregoing, the Board acknowledges that when service medical records cannot be located, the Board's obligation to explain its findings and to consider the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The available service medical reports generally show that on entrance examination clinical evaluation was normal and on discharge examination, although clinical evaluation was normal, a chipped left elbow playing football in 1968, never casted and traumatic arthritis of the left elbow since that time without any problems at present was noted. The service medical records are silent with regard to complaints or findings associated with arthritis of the neck, back, shoulders, fingers and toes, right hip, and right ankle. An October 1970 VA hospital summary report shows that the veteran recalled that while in service in March 1970, he injured his back and experienced back pain when leaning over to pick up an item. The veteran also gave a history of incurring a fracture of the left elbow while in service. On examination, findings were essentially normal except for tenderness of the mid-sacrum and over the left sacro-iliac joint. The report also shows that x-ray studies of the pelvis and lumbar spine revealed no abnormalities. The diagnoses included chronic sacroiliac sprain on the left. An August 1972 Medical Certificate and History documents complaints and discomfort associated with the left elbow. X- ray findings showed no evidence of any bony pathology, even though a spur projection extending from the distal end of the humerus just medial to the lateral femoral condyle was noted. The impression was probable bursitis -arthritis. VA outpatient treatment reports from August to September 1983 generally show complaints associated with pain of the left elbow with radiation to the fingers. A VA hospital summary report dated from September to October 1983 and a January 1984 hospital summary report dated in January 1984 show that the veteran received treatment for pressure neuropathy of the ulnar nerve and that diagnoses of peripheral neuropathy and ulnar nerve entrapment of the left elbow were made. Although the reports show that the veteran maintained that he had arthritis, clinical findings were negative. On VA examination in July 1984, no complaints or findings associated with systemic arthritis or arthritis of the elbow were noted. A report of an x-ray study of the left elbow revealed unremarkable findings except for a small ill-defined density at least partially calcific lying over the anterior portion of the elbow. On VA examination for a fee basis dated in August 1985, the veteran complained of occasional burning discomfort of the left hand and sensitivity of the left elbow. Clinical findings were essentially normal and the examiner noted that a report of an x-ray study suggested mild degenerative changes about the olecranon, probably accounting for at least a portion of his symptoms. Private treatment reports from December 1983 to May 1986 generally show that the veteran received treatment for mild degenerative changes of the left elbow and twisting his ankle. VA outpatient treatment reports dated from November 1985 to June 1991 generally show that the veteran complained of and gave a history of osteoarthritis of the left shoulder, neck, left foot, hands, and right hip. In a clinical entry dated in November 1985, the veteran complained of pain of the left shoulder and that a diagnosis of questionable bursitis of the left shoulder was made. In February 1987, it was noted that x-rays of the shoulders showed no acute changes of the shoulders. In May 1989, an impression of cervical degenerative joint disease was noted. In August 1990 an assessment of probable rheumatoid arthritis with signovial thickening of proximal interphalangeal joints (PIP) joint involvement of the left elbow, bilateral shoulder, left sternoclavicular joint, cervical spine involvement and toe changes was made. In addition, included within the reports are August 1990 x-ray reports of the hands and knees which reveal erosive changes of the 2nd, 3rd, and 4th proximal interphalangeal joints consistent with rheumatoid arthritis and mild degenerative changes of the right knee and moderate left suprapatellar effusion of unknown etiology, respectively. On VA examination in July 1991 although the veteran complained of symptoms associated with left elbow and fingers, no findings associated with arthritis were noted. Private medical reports from Doctor R. P. D., dated in March 1993 to April 1993 show that the veteran complained of pain of every joint, particularly the neck and upper extremities. After examination and a review of radiographs, the diagnoses were history of rheumatoid arthritis (probably seronegative); degenerative arthritis above the shoulders, right worse than left; degenerative arthritis above the acromioclavicular joint; and bilateral subacromial impingement syndrome. On VA examination in May 1994, the veteran stated that arthritis of the left elbow was diagnosed in January 1984 and that he underwent surgery because of "arthritis wrapped around the ulnar nerve." At that time, the veteran also complained of pain of the hands and shoulders. Diagnoses of left ulnar neuropathy and degenerative joint disease of the left elbow were made. Private medical reports from R. P. D., M.D., dated from March 1993 to September 1994 show continued complaints of aches and pain associated with the veteran's shoulders, cervical spine, and right knee. Included within the reports are reports of x-ray studies of the shoulders which show arthritic changes of the right shoulder with some joint space narrowing and mild arthritic changes of the acromioclavicular joints, the right knee which shows marked degenerative arthritic changes, and diffuse minimal foraminal narrowing of the cervical spine. The reports also show that in August 1994 an impression of significant degenerative arthritis of the cervical spine with radiculopathy into the right upper extremity was made. VA outpatient treatment reports from May 1987 to October 1995 also document complaints of pain of the neck, shoulders, hands, and left elbow. Included within the reports are numerous x-ray studies of the shoulders, knees, spine, shoulders, and proximal interphalangeal joints. The reports also contain an October 1995 consultation report from S. K. G., M. D., in which the consultant psychiatrist reviewed the veteran's medical history and complaints of pain and aches of the joints. In the assessment section, the consultant stated that the veteran certainly had a variety of complaints, generalized arthralgia particularly seemed to be the biggest problem. The veteran also had osteoarthritis, but evidence of inflammatory arthritis was not seen. Mechanical back pain, myofascial related neck and shoulder pain from time to time were also noted but the examiner stated that he did not see any specific disease explanation for this. Throughout the reports diagnoses of most likely osteoarthritis and multiple arthralgia/arthritis-questionable etiology were documented. At his personal hearing in September 1995, the veteran recalled that he fractured his left elbow while in service. He also stated that at first he developed arthritis of the left elbow and then he developed arthritis of his back, knees, neck, shoulders, right hip, and right ankle. On VA examination in December 1995, complaints associated with pain of the fingers, left elbow, neck, knee, right hip and right ankle were reiterated. After examination and x-ray studies of the hands, which revealed normal articular surfaces without any bony abnormalities or significant arthritic changes and of the left elbow, which show that the coronoid process showed a small bony spur, mainly of the lateral view, the assessment was continued pain and questionable ulnar neuropathy. On the report, the examiner also stated that clinical findings were inconsistent enough to cause some question as to whether the disorders actually existed or not. The doctor added that he did not feel that any generalized arthritis could possibly be related to a left elbow fracture. A medical statement from C. A. W., M. D., dated in September 1996 with private medical reports is also of record. In the statement, the physician stated that the veteran had osteoarthritis involving multiple joints. The physician recalled the veteran's history of a fracture to the elbow in 1960 as well as the veteran's development of severe arthritic changes of the elbow and his ulnar entrapment which was felt to be secondary to a bone spur that was pressed onto the ulnar nerve. The physician also acknowledged other joints which included the shoulders, neck, lower back and knees and noted that the veteran had severe degenerative arthritis of the low back. Included with the medical statement is an examination record which documents a diagnosis of osteoarthritis. On the report, the physician noted that osteoarthritis involving multiple joints was present but in spite of the positive rheumatoid factor, no evidence of inflammatory arthritis or rheumatoid arthritis was seen. Also of record are numerous VA outpatient treatment reports extending from October 1995 to November 1997 which document complaints associated with low back pain and pain of the right knee. The reports generally show that in May 1996, the veteran underwent arthroscopy of the left knee and that a diagnosis of probable degenerative changes of the left knee and possible chondral derangement were made. On VA examination for fee basis conducted in January 1998, the veteran's claims folder was reviewed. In addition, the examiner noted that the veteran gave a history of incurring a fracture of the left elbow while playing football in service and being service-connected for a left elbow disorder, presumably arthritis, which was evaluated at 10 percent. The veteran added that the fracture took approximately six months to heal but when he was transferred, arthritis was diagnosed. During the interview, the veteran also stated that all of his joints bothered him. After examination and review of x-ray findings which revealed minimal degenerative changes of the left elbow and possibly some slight sharpening of olecranon articulation, the assessment was currently service-connected for elbow arthritis. It is noted that on review of the x-ray reports, the examiner also stated that except for the aforementioned findings, there was really no evidence, in the examiner's view, for arthritis. In the discussion section, the examiner stated that he did not feel that the veteran had significant arthritis of the elbow, as the veteran's major problem of the elbow was an ulnar entrapment-type syndrome, which he may have sustained a traumatic injury to obtain. The examiner noted that future treatment may be required but the veteran had very low objective evidence for arthritis, except for the lack of the slight few degrees of extension and some very minimal changes which were likely more consistent with post-traumatic injury than anything else. The examiner then stated that these could be due to osteoarthritis; however, the elbow is an uncommon place to develop osteoarthritis and most likely, given the history, it was believed to be post-traumatic arthritis. There was no evidence at all for rheumatoid arthritis. With regard to whether the injury of the left elbow could have caused the veteran to develop systemic arthritis, the examiner stated that certainly anything is possible. However, given his medical knowledge, he could not think of any problem which would result in the veteran developing multiple systemic arthritis including that in his neck, back, shoulders, hips, knees, etc., which could be related to an injury to his left elbow. Therefore, he felt that it was very highly unlikely and felt that this should not be compensable. Applicable law and regulation Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110. The regulations state that 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. Service connection may also be granted for a chronic disease, including arthritis, if manifest to a degree of 10 percent or more within one year from the date of separation from such service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. The Court has held that, when aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Court held that the term "disability" refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. Id. Analysis Systemic Arthritis As in any case, a persons who submits a claim for benefits under the law administered by the Secretary shall have the burden of submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If the veteran fails to submit a well grounded claim, his appeal fails as to that claim, and the VA is under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim requires evidence of a nexus between the in-service injury and the current disability, or evidence of chronicity or continuity of symptomatology. Savage v. Gober, 10 Vet. App 489 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" is required. Id. After reviewing the aforementioned evidence of record, the Board initially notes that the veteran cannot establish entitlement to service connection for systemic arthritis on a direct basis, as the record overall does not show the veteran's current systemic arthritis to include arthritis of the shoulders, cervical and lumbar spine, fingers and toes, right hip, knees, and right ankle had its onset during service and in-service occurrence may not be presumed. As noted above, the available service medical records show no complaints of or findings associated with arthritis to include the veteran's June 1970 discharge examination report. The record also shows that the clinical data extending from October 1970 to November 1985, to include VA and private outpatient treatment reports and examination reports, fail to show that arthritis of the shoulders, spine, hands and toes, right hip, knees, and right ankle was present. In addition, there is no competent evidence of record that tends to suggest that the veteran's arthritis of any joint is related to service or any events from service. Accordingly, the veteran's claim in this regard is not well grounded. The competent evidence of record also does not tend to show that the veteran's systemic arthritis occurred as secondary to his service-connected left elbow disability. Not one of the veteran's post-service clinical data of record attributes any arthritis for any joint to the veteran's residuals of a fracture of the left elbow. In fact, the record shows that on several occasions, examiners' have concluded that the non- service-connected disorders were not caused by or related to the service-connected left elbow disability. On VA examination in December 1995, the doctor stated that he did not feel that any generalized arthritis could possibly be related to a left elbow fracture and on examination in January 1998, with regard to whether the injury of the left elbow could have caused the veteran to develop systemic arthritis, the examiner stated that certainly anything is possible; however, given his medical knowledge, he could not think of any problem which would result in the veteran developing multiple systemic arthritis including that in his neck, back, shoulders, hips, knees, etc. which could be related to an injury to his left elbow. Therefore, it was very highly unlikely and felt that this should not be compensable. In view of the foregoing, the record clearly shows that the veteran's systemic arthritis did not occur as secondary to his service-connected disability. The veteran's claim is not well grounded in this regard also. The veteran's hearing transcripts and contentions expressed on appeal are also recognized. However, because the competent evidence of record fails to show that the veteran's systemic arthritis was incurred in or aggravated by service, or occurred as secondary to any service-connected disability, the lay statements, are insufficient to establish service connection. Espiritu, supra. It is noted that the veteran has been informed of what evidence is required to establish a well-grounded claim and during the pendency of the appeal, the veteran was informed of the evidence necessary to complete his case. Robinette v. Brown, 8 Vet. App. 69 (1995). In addition, there does not appear to be any outstanding evidence of which VA is on notice; thus, there is no duty to assist. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). Arthritis of the left elbow Review of the record indicates that the veteran has submitted a well-grounded claim. The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). As noted above, the Board is satisfied that all necessary evidence has been received for an equitable disposition of the veteran's appeal and adequately developed. Id. As previously noted, service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110. In addition, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. When all of the evidence is assembled, [VA] is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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). Upon careful consideration of the evidence of record, the record shows that the evidence is in relative equipoise; thus, it supports the veteran's claim of entitlement to service connection for arthritis of the left elbow. In this case, the Board initially points out that the complete compilation of the veteran's service medical records is not available for review. Nevertheless, the available service medical records show that on discharge examination in June 1970, the examiner noted the presence of a chipped left elbow which occurred in 1968 and stated that traumatic arthritis of the left elbow had been present since that time. Although an August 1972 Medical Certificate and History shows that no evidence of bony pathology was found on x-rays accomplished at that time, evidence of mild degenerative changes of the left elbow was documented on VA examination in July 1984. In this case, the Board also points out that since discharge from service, the veteran has complained of pain associated with the left elbow and that even though x-ray findings were negative in August 1972, the impression was probable bursitis - arthritis. The Board further recognizes that by history and currently, x-ray findings show evidence of mild degenerative changes of the left elbow. In addition, it is acknowledged that on examination in January 1998, the examiner after reviewing the veteran's claims folder and a January 1998 report of an x-ray study, stated that even though minimal degenerative changes of the left elbow and possibly some slight sharpening of olecranon articulation was present, no evidence for arthritis was seen. However, the examiner did not state that arthritis was not present and he recorded an assessment of currently service-connected for elbow arthritis. In fact at that time, the examiner, in essence, stated that the veteran's low objective evidence for arthritis consisted of decreased range of motion on extension and very minimal changes, which were likely more consistent with post-traumatic injury than anything else. The examiner further stated that although the veteran's arthritis could be due to osteoarthritis, but the elbow was an uncommon place to develop osteoarthritis and most likely, given the history, he believed it to be post- traumatic arthritis, as there was no evidence at all for rheumatoid arthritis. Considering the foregoing evidence of record, the Board finds that there is an approximate balance between the positive and negative evidence of record; thus, the benefit-of-the-doubt rule is applicable. When after consideration of all evidence and material of record, 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 claim. Accordingly, service connection for arthritis of the left elbow is granted. 38 U.S.C.A. § 5107(b). ORDER Service connection for systemic arthritis, to include arthritis of the neck, back, shoulders, fingers and toes, right hip, knees, and right ankle is denied. Service connection for arthritis of the left elbow is granted. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.