Citation Nr: 18160527
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 13-12 093
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a left knee disability, claimed as a left leg disability, is denied.
Entitlement to service connection for a right knee disability, claimed as a right leg disability, is denied.
Entitlement to service connection for arthritis other than of the bilateral knees, ankles, and lumbar spine is denied.
REMANDED
Entitlement to service connection for an acquired psychiatric disability is remanded.
Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded.
Entitlement to an initial compensable evaluation for stage 3 chronic kidney disease is remanded.
Entitlement to an effective date prior to February 28, 2011, for the award of service connection for stage 3 chronic kidney disease is remanded.
Entitlement to an effective date prior to April 10, 2013, for the award of service connection for GERD is remanded.  
FINDINGS OF FACT
1. The Veteran’s rheumatoid arthritis/Reiter’s syndrome of the bilateral knees is not shown to have been incurred in or otherwise the result of any in-service disease, injury, or event; rather, it was diagnosed many years after military service.  
2. The evidence of record does not demonstrate that the Veteran’s rheumatoid arthritis/Reiter’s syndrome of the bilateral knees is caused or aggravated by his bilateral ankle disabilities.  
3. VA has already awarded service connection for bilateral ankle disabilities, and has denied service connection for bilateral knee and lumbar spine disabilities, to include arthritic conditions thereof.
4. The Board previously requested that the Veteran clarify the particular body parts which are affected by his claimed arthritis; the Veteran failed to response to that request prior to this decision.  
5. The Board finds that therefore construes the generic evidence of record of osteoarthritis as referential to his arthritic conditions of the bilateral knees and lumbar spine, which VA has already adjudicated.  
6. The evidence of record does not demonstrate any current arthritic disability of any body part other than the bilateral ankles, bilateral knees, and lumbar spine.  
CONCLUSIONS OF LAW
1. The criteria for service connection of rheumatoid arthritis/Reiter’s syndrome of the bilateral knees are not met.  38 U.S.C § 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
2. The criteria for service connection for arthritis other than of the bilateral knees and ankles, and lumbar spine are not met.  38 U.S.C § 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 1975 to May 1979.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from January 2012, October 2013, and April 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  
The Veteran was scheduled for a Board hearing in December 2014, but prior to this hearing, he submitted correspondence cancelling his request.  In June 2015, these matters were remanded to again schedule the Veteran for a Board hearing.  Such hearing was scheduled for September 2015; however, prior to this hearing, he submitted correspondence cancelling his request.  Again, in November 2018, the Veteran was scheduled for a hearing; however, prior to this hearing, he submitted correspondence cancelling his request.  Accordingly, his hearing requests are deemed withdrawn.  See 38 C.F.R. § 20.702(d).
In March 2016, the Board remanded these matters for further evidentiary development.  The case has been returned to the Board at this time for further appellate review.  
Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  In addition, 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). 
Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).
In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  A Veteran seeking service connection must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). 
Whether lay evidence is competent and sufficient in a particular case is an issue of fact.  Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (where the condition is simple, for example, a broken leg, but not, for example, a form of cancer), (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 (Fed. Cir. 2007).
Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488 (1997).  Arthritis is designated as a chronic disease for presumptive service connection purposes. 
The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).  Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Bilateral Knee Disorders
The Veteran asserts that he has bilateral knee are secondary to his service-connected ankle disabilities.  Indeed, while service treatment records reflect left lower leg and ankle injuries, records are silent as to any complaints of or treatment for a bilateral knee pain or any other knee disorder.
In March 2015, the Veteran underwent a VA examination of his bilateral knees, at which time he was diagnosed with rheumatoid arthritis and Reiter’s syndrome of his bilateral knees.  The Veteran reported pain for years, and the examiner noted that the Veteran’s service treatment records were silent for any knee complaints during service.  The examiner additionally noted that the Veteran was diagnosed with his rheumatoid arthritis/Reiter’s syndrome in 1986.  
After examination and review of the claims file, the examiner opined that the Veteran’s bilateral knee disorders were less likely than not related to his service-connected ankle disabilities.  The examiner noted that the Veteran had left lower leg and ankle injuries during active duty and had surgical repair in the following years.  The examiner then noted that the Veteran was diagnosed with rheumatoid arthritis/Reiter’s syndrome in 1986 and opined that his bilateral knee pain is less likely secondary to his service-connected ankle/lower leg conditions and more likely associated with his chronic genetic rheumatoid arthritis/Reiter’s syndrome.  However, upon remand in March 2016, the Board found that this opinion was inadequate, as the examiner did not address whether the Veteran’s service-connected ankle disabilities may have aggravated the rheumatoid arthritis/Reiter’s syndrome of his left and right knees.
Accordingly, a supplementary medical opinion was obtained in July 2016.  The July 2016 VA examiner opined that the Veteran’s Reiter’s syndrome/rheumatoid arthritis is less likely than not due to his service-connected bilateral ankle disabilities.  The examiner explained that rheumatoid arthritis and Reiter’s Syndrome are separate conditions from the Veteran’s service-connected bilateral ankle conditions, which are trauma related.  They are considered to be autoimmune in nature, and therefore not related to the traumatic degenerative arthritis in his ankles.  Additionally, the examiner opined that the Veteran’s condition is less likely than not aggravated beyond natural progression by his service-connected ankle conditions.  The examiner continued to state that a review of the Veteran’s private and VA treatment records provide no substantiation for a link, including potential for aggravation, between the two conditions, which are of very separate etiologies.  
Initially, the Board reflects that the Veteran is shown to have a diagnosis of bilateral rheumatoid arthritis/Reiter’s syndrome of his bilateral knees.  Thus, a current disability is noted in this case and the first element of service connection has been met.  
Respecting direct service connection, as noted above, the record shows no report or treatment for bilateral knee disorder or symptoms during service.  Likewise, the evidence of record documents that the Veteran was diagnosed with bilateral rheumatoid arthritis/Reiter’s syndrome of the bilateral knees was in 1986, many years after his discharge from service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim).  Finally, the Veteran has not alleged that he has bilateral knee disabilities traceable to his period of military service.  Consequently, as the evidence does not demonstrate and the Veteran does not allege any in-service disease, injury or event in this case, direct service connection for the Veteran’s rheumatoid arthritis/Reiter’s syndrome of the bilateral knees must be denied at this time on the lack of such in-service element in this case.  See 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309.   
Rather, he has attributed his bilateral knee disabilities to his service-connected bilateral ankle disabilities.  Although the Veteran has stated that he his bilateral knee disabilities are related to his service-connected ankle disabilities, the Veteran is not competent to render such a medical opinion in this case, as he lacks the requisite medical experience and expertise to opine on such a complex medical question.  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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue).  
Rather, the most probative evidence of record regarding the etiology of his bilateral knee rheumatoid arthritis/Reiter’s syndrome in this case are the two VA examiners’ opinions, but particularly the July 2016 VA examiner’s opinion.  That examiner noted that the Veteran’s rheumatoid arthritis/Reiter’s syndrome is caused by his genetics and are autoimmune in nature, rather than due to the trauma-related arthritis of the Veteran’s bilateral ankle disabilities.  Likewise, the examiner found that the Veteran’s bilateral ankle disabilities did not aggravate his bilateral knee disabilities.  As there is no evidence of record to refute this opinion, the Board finds that such evidence is the most probative evidence of record at this time.  
In short, based on the evidence of record at this time, the Board must find that the evidence does not demonstrate that the Veteran’s rheumatoid arthritis/Reiter’s syndrome of the bilateral knees is not shown to be caused or aggravated by his service-connected bilateral ankle disabilities.  Accordingly, service connection on a secondary basis must also be denied based on the evidence of record at this time.  See 38 C.F.R. §§ 3.102, 3.310.
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
Arthritis Other than of the Bilateral Knees and Ankles, and Lumbar Spine
On appeal, the Veteran has generally claimed he has arthritis due to service and specifically due to his service-connected ankle disabilities.  
The Board reflects that the Veteran is already service-connected for bilateral ankle disabilities, and the Board has denied service connection for rheumatoid arthritis of the bilateral knees, as discussed above.  Additionally, evidence of record clearly documents that the Veteran has rheumatoid arthritis of the lumbar spine.  The Board, however, reflects that service connection for a lumbar spine disorder was denied in a July 2009 rating decision; the Veteran did not timely appeal that decision and it is therefore final.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156 (a), 20.1103.  The Board has therefore recharacterized this issue on appeal in order to more clearly articulate the scope of the claim on appeal.  
As a final initial matter, the Board remanded this matter in March 2016 because it was unclear which exact body parts the Veteran was claiming that he had arthritis of.  The evidence of record at that time indicated a generic assessment of “osteoarthritis, unspecified.”  Consequently, the Board remanded the claim in order for the Veteran to more clearly define the benefits that he was seeking, particularly in light of the lumbar spine, ankle, and knee claims which had already been adjudicated.  
Pursuant to the March 2016 Board remand, a March 2016 letter was sent to the Veteran asking him to clarify which body parts, other than the knees and service-connected ankles, that he claims have arthritis.  However, to date, the Veteran has not submitted any evidence to clarify his claim, to include identifying the existence of any other treatment records for his claimed arthritis.  The Court has held that VA’s duty to assist is not always a one-way street.  See Wood v. Derwinski, 1 Vet. App. at 193 (1991).  
In his April 2013 statement, the Veteran indicated that he “requested to initiate a claim” for arthritis.  The Board reflects that if the Veteran desired to reopen his claim for a lumbar spine disorder, he would have otherwise indicated such.  Additionally, the Veteran did, in fact, initiate separate claims for his bilateral knee disorders.  Accordingly, based on the evidence of record and the Veteran’s statements in this case with regards to his claims for benefits, the Board must construe the scope of the Veteran’s generic arthritis claim must necessarily be arthritis other than of the bilateral ankles, bilateral knees, and lumbar spine in this case.  
As noted above, the evidence of record at this time demonstrates bilateral ankle, bilateral knee, and lumbar spine claims have been adjudicated in this case.  Rheumatoid arthritis of the bilateral knees and lumbar spine have already been addressed either in prior AOJ decisions or in this decision, above.  After a thorough review of the claims file, the Board cannot find any arthritic conditions of any other of the Veteran’s body parts other than those that have already been addressed by VA in other decisions.  
Consequently, in the absence of any additional assistance from the Veteran with respect to the scope of his arthritis claim, the Board must construe the generic notation of osteoarthritis in the claims file to refer to these already-adjudicated claims in this case.  See Wood, supra.  
The Board acknowledges that the Veteran has not been afforded VA examination.  However, as discussed above, the low threshold standard of McLendon v. Nicholson, 20 Vet. App. 79 (2006), has not been met as there is no evidence that such disability was manifested during the Veteran’s honorable period of active service, and there is nothing in the record indicating that any such disability may be related to his honorable period of service.
Accordingly, after thorough review of the evidence of record in this case, and after attempting to clarify with the Veteran the scope of his claim for benefits at issue in this case, the Board must deny service connection for arthritis other than of the bilateral knees and ankles, and lumbar spine, as there is no evidence of a current disability based on the evidence of record at this time.  See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
REMANDED ISSUES
Initially, regarding the GERD and kidney claims, the Board notes that in a April 2017 rating decision, the AOJ granted service connection for GERD, rated as 10 percent disabling effective April 10, 2013.  The April 2017 rating decision also granted the issue of entitlement to service connection for stage 3 chronic kidney disease, rated as noncompensable effective February 28, 2011.  In May 2017, the Veteran expressed disagreement with these issues.  However, it does not appear that a Statement of the Case (SOC) has been issued as to these issues.  38 U.S.C. § 7105 (a) (2012).  Thus, the Board is required to remand these issues for issuance of the necessary SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).
Respecting the psychiatric claim, the Board noted in the March 2016 remand that the Veteran had been diagnosed throughout the pendency of the appeal with major depressive disorder, generalized anxiety disorder, bipolar disorder, mood disorder, and adjustment disorder.  However, on March 2015 VA examination, the examiner diagnosed unspecified bipolar and related disorder and opined that it was less likely related to the Veteran’s service-connected ankle disabilities because there was “no scientific research documenting evidence of an etiological relationship between an orthopedic condition and bipolar disorder.”  The examiner noted that treatment records cite numerous other health problems as contributing to his depression, including a breathing disorder and seizures, in addition to conflict with a supervisor.  The examiner then stated that during the examination, the Veteran cited numerous causes of his depression including chronic pain, other health conditions, and family stressors.  The examiner then provided an opinion as to why the Veteran’s mood disorder was not aggravated by his service-connected bilateral ankle conditions.  The examiner did not however provide an opinion as to whether the Veteran’s ankle disabilities may have aggravated his bipolar disorder and did not opine as to the other psychiatric disabilities diagnosed during the pendency of the appeal, and specifically whether such may be due directly to his service or may be secondarily related to his service-connected ankle disabilities.  Additionally, subsequent to this medical opinion, the Veteran’s attorney submitted a statement with citation to medical literature suggesting a relationship between psychiatric disorders and orthopedic conditions.  For these reasons, the Board found that additional development was required and remanded the case in March 2016, with the explicit instructions to address both direct and  secondary service connection theories of entitlement.
Accordingly, the Veteran underwent VA examination in June 2016 and his diagnosis of unspecified bipolar and related disorder was confirmed.  The examiner then noted that the Veteran’s service treatment records did not show any diagnosis of or treatment for a mental health disability while on active duty.  Therefore, it was opined that the Veteran’s unspecified bipolar and related disorder is less likely than not directly related to military service.  
The Board finds this opinion regarding direct service connection to be inadequate as the examiner relied on the absence of service treatment records as the basis for the negative opinion.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative opinion).  Likewise, the examiner did not address secondary service connection, as had been asked in the Board previous remand directives.  
Based on the foregoing deficiencies, the Board finds that a remand is necessary in order to afford the Veteran another VA examination with an examiner who has not previously participated in this case in order to ascertain whether any of the noted psychiatric disabilities are related to military service or his service-connected disabilities.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).
On remand, the Board also finds that any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matter is REMANDED for the following action:
1. Furnish to the Veteran and his representative a statement of the case with regard to the claims for increased evaluation and earlier effective dates for the awards of service connection for GERD and stage 3 chronic kidney disease.  The issues should be returned to the Board only if a timely substantive appeal is received.
2. Obtain any and all VA treatment records not already associated with the claims file from the Manchester VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file.
3. Ensure that the Veteran is scheduled for a VA psychiatric examination with an examiner that has not previously participated in this case in order to determine whether any current psychiatric disorder is related to military service.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  
Following review of the claims file and examination of the Veteran, the examiner should identify all DSM-V psychiatric disorders currently suffered by the Veteran, to include major depressive disorder, generalized anxiety disorder, bipolar disorder, mood disorder, and adjustment disorder.  
If PTSD is diagnosed, the examiner should specify the incident or stressor with which that diagnosis is being made and whether such stressor occurred during military service.  
For each non-PTSD psychiatric disorder found, to include major depressive disorder, generalized anxiety disorder, bipolar disorder, mood disorder, and adjustment disorder, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service.  
Next, if the examiner does not find that the Veteran’s psychiatric disabilities are directly related to military service, the examiner must opine whether his psychiatric disabilities at least as likely as not are (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected disabilities, to particularly include his bilateral ankle disabilities and any pain associated with those disabilities.    The examiner is reminded that he or she must address both prongs (a) and (b) above.
The examiner must address any treatise evidence with regarding a relationship between psychiatric and orthopedic conditions that the Veteran and his representative have submitted.
In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
 
MARTIN B. PETERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Gordon, Associate Counsel 

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