Citation Nr: 0005354 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-30 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for arthritis. ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran had active duty from June 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") was known as the United States Court of Veterans Appeals prior to March 1, 1999. FINDINGS OF FACT 1. Competent evidence that the veteran had degenerative type of arthritis in service, and, that he currently has the residuals thereof, has not been submitted. 2. Competent evidence that a current rheumatoid arthritis condition is of service origin, has not been submitted. CONCLUSION OF LAW Service connection for arthritis, to include degenerative arthritis and rheumatoid arthritis, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Where a veteran served 90 days or more during a period of war or in peacetime after December 1946 and arthritis becomes manifest 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 in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). The threshold question to be answered is whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well- grounded; that is, a claim which is plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Chelte v. Brown, 10 Vet. App. 268, 270 (1997) (citing Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990)). Generally, a well-grounded claim for service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disease or injury. Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra). The second and third Caluza elements can be satisfied under 38 C.F.R. 3.303(b) by (a) evidence that the condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim must be presumed. Robinette v Brown, 8 Vet. App. 69, 75 (1995). In November 1964, a the veteran's service medical records were received for the record. Service medical records reveal that the veteran was clinically evaluated as normal for the spine and other musculoskeletal areas at the time of induction examination in June 1962. On July 24, 1962, the veteran was seen for pain in the left shoulder. Tendonitis was noted. On July 25, 1962, the veteran was seen for pain in the left shoulder. On July 26, 1962, the veteran was seen for chest pain, and for pain of one week across the left shoulder. The diagnosis was muscle sprain and peritendinitis involving deltoid and/or supraspinatus. In April 1963, the veteran was seen for complaints of chronic recurrent pain in the right shoulder. The reported episode started with a basketball game. Examination revealed full range of motion and normal strength of the right shoulder. The examiner wrote that x-rays were negative. The actual x-ray report shows that there was no evidence of fracture, dislocation or abnormal calcification in the right shoulder. The impression was myositis. In May and June 1963, the veteran was seen for complaints of recurrent pain in both lower extremities. It was noted that the veteran had leg pain due to stress. It was noted that the veteran had a long history of complaints of pain in the left knee following guard duty. The examiner wrote that x-rays of all joints sacrum down and long bones of legs were negative. The corresponding x-ray report of June 13, 1963 is of record, and indicated that a series of all joints and long bones showed no abnormalities. Examination revealed that neurological evaluation was normal; that regarding instability, the veteran was normal; and that vascular examination was normal. The veteran was clinically evaluated as normal for the spine and other musculoskeletal areas at the time of service separation examination in February 1964. The veteran was discharged from service in April 1964. In September 1964, the veteran was seen by a private physician, Dr. Landau. In the clinical findings and symptomatology section, the physician indicated that the veteran had been seen in 1962 for minor ailments, and that there was a check-up on August 10, 1964. The physician reported a history of the veteran having had at tonsillectomy in 1953, and it was noted that the veteran had pain in the neck regions, of which the onset was equivocal (1963?). Romberg sign revealed slight swaying, and it was noted that the left foot was weaker than the right foot (no history of polio elicited). There were no cardiac murmurs. The veteran's main complaint was pain in the left shoulder; symptoms were increased when the veteran wore a photo across the left shoulder. The physician reported that x-rays of the cervical spine were given to the veteran, and he wrote "(pathology ! accident?!) an accident must have occurred similar to a whiplash injury." The physician indicated that the veteran had been in the Army, and that he was referred to the VA hospital. The examination diagnoses were: Rule out tropical diseases (patient was in Korea); Rule out polio (unnoticed); left foot weaker than right; and Rule out injury to neck explaining pathology of the cervical vertebrae. In January 1965, the veteran underwent VA examination. In the history section, it was noted that the veteran was a 24 year old peacetime veteran with a history of injury to the right shoulder during basic training, and that he had been treated at Fort Jackson, South Carolina. His present complaint was of recurrent pain in the shoulder. Orthopedic examination revealed that the veteran had occasional pain on exertion such as pitching a ball. The examiner wrote that examination was negative, and that x-rays were negative. The diagnosis was "no objective orthopedic findings." The x- ray reports were included and revealed that x-rays of the right shoulder were essentially negative; x-rays of the chest were essentially negative, and the heart shadow was normal in size and shape. In a February 1965 rating decision, the RO in Puerto Rico denied service connection for a shoulder condition. It was determined that a muscle sprain and peritendinitis of the left shoulder was not found on the last examination, and a right shoulder condition was claimed by the veteran but not shown by the evidence of records. The veteran was notified of the same in two letters from the RO, dated in February 1965. In a February 1965 VA Form 10-2827, Application for Outpatient Treatment, it was noted that the veteran claimed injury to the right shoulder, first noticed in August 1962; and that he had received treatment in service and was hospitalized in August 1962 while in service. It was determined that the veteran was ineligible, as he was not service connected for the claimed injury. In March 1966, on VA Form 10-7131, Exchange of Beneficiary Information, the VA in RO in San Juan Puerto Rico wrote to the VA hospital in Bronx, New York. The RO requested information about the veteran's hospital records. Those records were apparently transferred to New York on October 15, 1964. In an April 1966 remark, it was noted that the veteran had filed a claim for compensation which had been disallowed in February 1965. In June 1993, the veteran was hospitalized privately for severe anemia. Included in the several diagnoses, was that the veteran had rheumatoid arthritis. In January 1997, the veteran submitted an application for compensation, and therein indicated that the nature of his disability was that he had an arthritis condition (complete body), which began in 1962, and that he had had an operation on his right hand in 1965 at a VA hospital. In February 1997, and April 1997, the veteran underwent a series of x-rays; to include x-rays of the hands, shoulders, knees, lumbosacral spine, elbows and hips. The findings of the hand x-rays were consistent with rheumatoid arthritis of both hands and wrists. Degenerative arthritis of both acromioclavicular joints was shown. Degenerative joint narrowing of both knees was shown; as well as osteoporosis. Osteoporosis and minimal degenerative spur of the L1 and L2 were shown, and, osteoarthritis of the facet joints was shown at L4-5 and L5-S1. The left elbow was unremarkable, and the right elbow showed small enthesophyte at the triceps insertion. Osteoporosis of the hips was shown. In April 1997, the agency of original jurisdiction for this claim (the Los Angeles RO) issued a request on VA Form 10- 7131 to the VA Medical Center in New York, asking for a search of treatment records from 1964 to 1965 for the veteran. In an undated reply, probably received in April 1997, the VA Medical Center in New York, stated that: After a thorough search by our Permanent Files Unit, we were informed that patient's medical record which was previously missing from file is no longer retrievable, therefore, we are returning your VA Form 10-7131. VA treatment records, dated from April 1997 to June 1997, reveal that the veteran was seen on an outpatient basis. The diagnosis included auto-immune disease, rheumatoid. Prednisone treatment was prescribed, and a skin biopsy was recommended. It was noted that the veteran had severe stress at work, and problems with the small joints of his fingers and hands. In a June 1997 rating decision, the veteran's claim for service connection for arthritis was denied as not being well grounded. The RO determined that there was no record of arthritis showing a chronic disability subject to service connection. In his July 1997 notice of disagreement, the veteran indicated that he had been seen in 1965 at the VA hospital in Bronx, New York, for arthritis in the right arm. In February 1998, the RO initiated another request for information to the VA Medical Center in Bronx, New York, on VA Form 10-7131, and asked them to recheck for hospital reports for either the right hand or arm surgery for the veteran in 1965. In March 1998, after the RO made an additional search inquiry with the National Personnel Records Center for the veteran's records, more service medical records were received, consisting mostly of duplicates of what were on file in 1964. In particular, in its March 1998 request the RO had indicated that the veteran's service medical records appeared incomplete and that a search was requested for any service medical records to include a hospital report (shoulder injury) from June 1, 1962 to September 30, 1962 from Fort Jackson, South Carolina, and treatment reports from January 1, 1963 to April 6, 1964 from the 8th Army Hospital in Korea. Included with additional service medical records received in March 1998 was a reply that other health records had been sent to the VA RO in New York. In April 1998, the veteran underwent VA examination. In the history section, the veteran reported that he had developed multiple arthralgia while stationed in Korea in service. It was noted that in 1965, the veteran had an excision of a cyst on the dorsum of his right wrist which came up spontaneously without injury; and that "the pathology report, apparently, was that of rheumatoid arthritis." Physical examination revealed that the veteran had a normal gait. The cervical spine had normal alignment, with flexion of 45 degrees, extension of 30 degrees and rotation of 45 degrees. Examination of the shoulders revealed normal contour and alignment, with no tenderness in the acromioclavicular joint. There was tenderness over the anterior shoulder, over the biceps tendon, but no definite tenderness over the greater tuberosities. Shoulder motion revealed forward elevation of 160 degrees; abduction of 160 degrees with pain in both directions above the shoulder level; internal rotation of 90 degrees right and left; and external rotation of 45 degrees right and left. The elbows revealed full extension, and flexion of 140 degrees. Forearm motion showed right pronation of 45 degrees, right supination of 60 degrees, left pronation of 90 degrees, and right supination of 90 degrees. The examiner evaluated the wrist and fingers. It was noted that the knees showed normal contour and alignment, with full extension. Flexion of 120 degrees right and left was shown with a complaint of joint line tenderness. There was a suggestion of slight bogginess to the synovium, but nothing definite, and no increased warmth or redness and no effusions. The examiner commented on the series of x-ray reports that were included from 1997, and noted by the Board above. The examiner rendered a diagnosis of rheumatoid arthritis with multiple joint involvement, burnt out with secondary degenerative arthritis, shoulders and knees. The examiner stated: The patient's interest would best be served by seeing an internist or rheumatologist to assess the severity of the rheumatoid with appropriate laboratory studies and functional classification. Rheumatoid arthritis is an auto-immune disease and without known specific etiology or relationship to occupation, etc. I could not state with any degree of certainty that his rheumatoid arthritis is a result of service connection, exposure to cold, toxins, etc., in Korea. Again I recommend evaluation by a rheumatologist to determine service connected problem, or unrelated, and could have occurred in any setting.... On September 9, 1998, the Chief of the Medical Administration Program from the VA Medical Center in Bronx, New York, wrote a letter to the RO. The letter was to verify that a search was conducted for the veteran's records; and that they found no records on microfilm or in the archives for this veteran. She noted that they were sorry for any inconvenience that this may have caused. In November 1998, the RO informed the veteran that his file was being sent to a rheumatology specialist for further review, and that it may be necessary for the veteran to report for further examination and testing. In June 1999, a VA physician provided an opinion for the record. Therein, the physician referred to the veteran's orthopedic examination by the VA physician in April 1998; and that that physician had rendered a diagnosis of rheumatoid arthritis, and recommended an evaluation by a rheumatologist. It was noted that the veteran had been evaluated by a rheumatologist in May 1997, and that although the veteran's rheumatoid factor was negative "(rheumatoid factor is negative 20% of rheumatoid arthritis cases)," that rheumatologist believed the veteran to have rheumatoid arthritis. The veteran was placed on a course of Prednisone in May 1997, due to significant hand joint pain, and hand pain lessened after Prednisone was prescribed. The physician wrote that the diagnoses were: Rheumatoid arthritis with secondary osteoarthritis of shoulders, knees and lumbosacral spine. Also that: In my opinion, a rheumatology consultation is not necessary at this time to confirm the diagnosis of rheumatoid arthritis. On the basis of current medical knowledge I do not believe (the veteran's) rheumatoid arthritis is related to his active duty military service. Genetic factors, immunoregulatory abnormalities, triggering or persistent microbial infections and environmental factors may play a role in the development of rheumatoid arthritis; but, at present, the specific cause of this illness remains undetermined. A June 1999 laboratory report is also of record. The Board has reviewed the evidence of record carefully, and determines that the veteran has not submitted a well grounded claim for arthritis. There is no evidence of record which relates the veteran's current degenerative and rheumatoid arthritic conditions to military service. Regarding whether the veteran was treated for arthritis in service, or within the one year presumptive period following service separation, there is no evidence that he was treated for arthritis. First, the service medical records do not show any indication of arthritis. At least two sets of x- rays were taken in conjunction with musculoskeletal pain shown in 1963, with no diagnoses of arthritis. The veteran was also normal upon service separation. See Epps v. Gober, and Caluza v. Brown, both supra. Second, several attempts were made to acquire medical records of the veteran, said to show that the veteran was seen in 1965 by VA for arthritis. The RO repeatedly tried to obtain hospital records that were seemingly transferred from the RO in Puerto Rico in 1964 to the VA hospital in Bronx, New York. After very diligent search efforts, the Chief of the Medical Administration Program at the VA in New York, finally concluded in September 1998 that there were no records available for this veteran. The VA has therefore fulfilled its duty to obtain VA generated records constructively in its possession. Bell v. Derwinski, 2 Vet. App. 611 (1992). Third, the records which are available, and show treatment of the veteran within one year of service separation, show that the veteran was treated privately in 1964 for ailments other than arthritis; and that when the veteran was evaluated by VA in 1965, arthritis was not shown. Accordingly the presumptions of 38 C.F.R. §§ 3.307, 3.309 are not applicable in this case. Regarding the remainder of the analysis for a well grounded claim, the later post-service medical evidence of record consists of VA and private treatment records, showing the veteran's health status during the 1990's. The RO's extensive development of this case lead to a medical opinion by a rheumatoid specialist in June 1999, which indicated that the veteran's current rheumatoid arthritis condition is not related to service. There is no evidence of record to refute this opinion. Nor is there any indication of record that the veteran's currently claimed arthritis disability, in the form of degenerative changes shown in various parts of his body by x-ray evidence, or the rheumatoid arthritis shown by laboratory reports, medical treatment and medical opinion, is related to service. To be well grounded, there must be competent evidence of a current disability; a disease or injury that was incurred in service; and of a nexus between the disease or injury and the current disability. Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table); See Watai v. Brown, 9 Vet. App. 441, 443 (1996). The veteran in this case has not shown the incurrence of arthritis in service, or that any currently diagnosed form of arthritis is related to service. Therefore, the inservice and nexus requirements, respectively, of a well grounded claim are missing. As those elements are missing, the veteran's claim is not well- grounded, and must be denied. Id. ORDER Service connection for arthritis is denied. Deborah W. Singleton Member, Board of Veterans' Appeals