Citation Nr: 0810920 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 96-45 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran served on active duty from August 1960 to August 1961. This matter comes to the Board of Veterans' Appeals (Board) from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which determined that new and material evidence had not been received concerning claims of service connection for left shoulder and left knee disabilities. In October 2003, the Board reopened the claims, and remanded the case for additional development. The case was remanded again by the Board in September 2005 for further development. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The evidence of record demonstrates that the veteran's claimed left shoulder disability is not a result of any established event, injury, or disease during active service. 3. The evidence of record demonstrates that the veteran's claimed left knee disability is not a result of any established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A left shoulder disability was not incurred in or aggravated by active service, nor may service incurrence of arthritis be presumed. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. A left knee disability was not incurred in or aggravated by active service, nor may service incurrence of arthritis be presumed. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in March 2004, October 2004, and October 2005. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in November 2006. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The Board notes that the veteran stated that he fell during the summer of 1960, and X-rays were taken at the medical facility at "NAS Corry Field, Pensacola, Florida." In October 2005, the RO requested that the National Personnel Records Center (NPRC) furnish all of the veteran's medical records from Pensacola, Florida. The NPRC informed the RO through official channels that no records relating to any treatment received by the veteran at Pensacola could be located. In November 2006, the RO asked the veteran to submit any further documentation of his medical reports. The veteran did not respond to the RO's request. The Board also notes that the veteran stated that he underwent surgery at VAMC Syracuse in 1964 or 1965. The earliest treatment records from VAMC Syracuse of record are from 1969. The RO has repeatedly requested any available records of pre-1969 treatment at VAMC Syracuse. The RO specifically requested that the retired records be searched. Additionally, in June 1989 the veteran requested any pre-1969 treatment records from VAMC Syracuse. The RO was informed through official channels in May 2002 that VAMC Syracuse had no records concerning the veteran other than the ones that had already been submitted. Additionally, VAMC Buffalo also informed the RO in March 2002 that they had no additional records regarding the veteran. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Factual Background In this case, the veteran's service records are completely negative for any signs, symptoms, or treatment for a left shoulder disorder and a left knee disorder. The August 1961 separation physical revealed normal upper and lower extremities. A VA treatment record noted that in February 1970, the veteran complained of pain and discomfort in his left knee since he traumatized it three years previously. After an arthroscopy, he was diagnosed with a torn left medial meniscus, and he underwent a left medial meniscectomy at a VA hospital. A VA record from August 1970 indicated that the veteran had been in an automobile accident. In September 1970, the veteran filed an application for compensation and described the nature of his injury as a left knee and left shoulder injury, which occurred while "acting as a lifeguard in servicemen's swimming pool." In November 1970, the RO denied the veteran's claims of service connection, noting that service treatment records did not show treatment of these disorders in service. In August 1975 the veteran reported to a VA examiner that wires from his previous medial meniscectomy were protruding from his left knee. He was scheduled for evaluation at a VA orthopedic clinic, but failed to appear for his appointment. VA treatment records from 1978 through 1989 reveal on-going complaints of left knee pain that were treated with narcotics. A private medical record from January 1979 stated that the veteran had been standing beside his own vehicle and another vehicle struck his left leg. The examiner noted a large hematoma in the back of the left knee with deep vein phlebitis. The hematoma was aspirated twice. The veteran received follow-up treatment for his left knee at the VA hospital. Additional VA treatment records from 1994 through 1997 detail complaints of left shoulder and left knee pain. In a VA treatment note from January 1994, the veteran stated that his left knee would give out occasionally. He also stated that his left shoulder had ached since 1959. The examiner noted a full range of motion of the left shoulder. A VA emergency room record from June 1994 recorded the veteran's statements that his left leg gave out frequently over the previous three years. A VA examiner provided a diagnosis of degenerative joint disease in the left knee in December 1994, and the veteran was prescribed a knee brace. An X-ray report from April 1995 revealed degenerative disease of the left knee at the medial compartment with a possible small loose body, and a VA note from November 1995 indicated that the veteran had a full range of motion of his right shoulder. A December 1995 note showed that the veteran complained of pain in his left shoulder, and the examiner recorded no apparent weakness or neurovascular deficit. In a June 1996 statement, the veteran repeated that in service as a lifeguard, he had tripped and fallen near the diving board while cleaning the swimming pool. The veteran asserted that a doctor took X-rays of his left shoulder, left knee, and left hand, at that time. On his September 1996 VA Form 9, the veteran continued to assert that after hurting his shoulder and knee during service, he received treatment, X-rays, and pain medication with follow-up visits. In November 1996, he stated that he fell during the summer of 1960, and X-rays were taken at the medical facility at "NAS Corry Field, Pensacola, Florida." Thereafter, the veteran wrote in reply to a June 1997 letter that had asked for evidence of an in-service injury. The veteran stated that he had an after-hours part-time job as lifeguard at the base pool. He had hurt his left shoulder and left knee when he fell off of a diving board. Again, the veteran stated he had undergone X-rays, and an abnormality had been found in his shoulder. VA X-ray reports from November 2004 revealed mild degenerative changes and no evidence of fracture or dislocation in the left shoulder. Degenerative changes in the patella and medial joint space with two or three loose bodies were noted in the left knee. The soft tissue and osseous structures of the left scapula appeared normal. The veteran stated in February 2005 that he recalled having knee surgery much earlier than 1970. He also reported having gone to sick call and having an X-ray taken of his shoulder while on active duty. He added in April 2005 that he had surgery on his knee at VAMC Syracuse in 1965. In an additional statement in October 2005, the veteran recounted that while working as a lifeguard on active duty, he slipped and hurt his left knee and left shoulder. He said that at the time he was a member of special services. On VA examination in November 2005, the veteran complained of pain in his left knee. He said that his knee was stiff and would give way. He also complained of pain in his left shoulder. He reported frequent flare-ups of left knee pain. On objective examination, no deformity of the left shoulder was noted. A mild varus deformity and a large, palpable spur over the medial aspect of the left knee were observed. A diagnosis of degenerative joint disease of the left acromioclavicular joint and left knee was listed. After reviewing the claims file, the examiner opined that the veteran's left knee and left shoulder disabilities were unrelated to the veteran's reported injury while he was on lifeguard duty in 1961. He noted that the discharge summary following the veteran's 1970 surgery indicated an injury to the left knee three years previously. He stated that it was at least as likely as not that the left shoulder disability was age-related and unrelated to any significant injury, either during the veteran's military career or following. During a VA examination in August 2007, the veteran reported occasional pain in his left shoulder and fairly constant pain in his left knee. He stated that his left knee and his left shoulder had been painful since he injured them during a diving accident. He indicated that he had daily flare-ups of knee pain. On objective examination, no alignment deformity of the left knee was noted. The examiner observed a palpable spur and tenderness on palpation of the medial aspect of the knee. Marked crepitus was noted. Stability of the knee was good. No deformity of the left shoulder was recorded. The diagnosis listed was degenerative joint disease of the left knee and acromioclavicular joint of both shoulders. The examiner stated that it was his opinion that it was at least as likely that the veteran's current knee and shoulder disorders are unrelated to his service-connected injury. He explained that the diving board injury occurred in 1960 or 1961, and the veteran had his knee scoped nine years later. He said that it was at least as likely as not that the knee condition was not due to that injury. Additionally, the examiner reported that it was at least as likely as not that the veteran's acromioclavicular joint disease was age related since the condition was bilateral. General Law and Regulations-Service Connection Claims 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. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including degenerative arthritis, become manifest to a degree of 10 percent within one year from date of termination of 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, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Left Shoulder Disability Based on the evidence of record, the Board finds that the veteran's left shoulder disability is not a result of any established event, injury, or disease during active service. The service treatment records are completely negative for any signs, symptoms, or treatment of a left shoulder disability. The first complaints of a left shoulder disability apparent in the evidence of record are from 1994-nearly 33 years after the veteran left active duty. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Without competent evidence of an in-service disorder or a competent record of continuity of symptomatology exhibited throughout the years after active service, service connection for a left shoulder disorder cannot be granted on a direct basis. The Board finds the November 2005 and August 2007 VA examinations persuasive regarding the lack of a medical nexus between the veteran's current left shoulder symptoms and any event from his active service. The examiner indicated that he reviewed the claims file, and he commented on the evidence of the veteran's prior medical history. He gave the veteran a full examination, interviewed the veteran, and provided adequate reasons and bases for his opinions. The Board has considered whether service connection for a left shoulder disorder could be established on a presumptive basis. To establish service connection for arthritis on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, the August 1961 separation physical revealed normal upper extremities. No medical evidence demonstrates that the veteran experienced arthritis in his left shoulder to a compensable level within a year after his discharge from active duty. Therefore, service connection for a left shoulder disability cannot be established on a presumptive basis. The Board has carefully considered the veteran's statements indicating that he has a current left shoulder disorder as a result of a diving accident while working as a lifeguard on active duty. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., 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). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation and diagnosis are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Left Knee Disability Based on the evidence of record, the Board finds that the veteran's left knee disability is not a result of any established event, injury, or disease during active service. The service treatment records are completely negative for any signs, symptoms, or treatment of a left knee disability. According to the evidence of record, the veteran had left knee surgery in 1970, and he reported that he experienced trauma to his left knee about three years previously. As the veteran left active duty in 1961, this evidence indicates that the veteran's knee trauma leading to his surgery occurred about six years after he left active duty. Without competent evidence of an in-service disorder, service connection for a left knee disorder cannot be granted on a direct basis. The Board finds the November 2005 and August 2007 VA examinations persuasive regarding the lack of a nexus between the veteran's current left knee symptoms and any event from his active service. The examiner indicated that he reviewed the claims file, and he commented on the evidence of the veteran's prior medical history. He gave the veteran a full examination, interviewed the veteran, and provided adequate reasons and bases for his opinions. The Board has considered whether service connection for a left knee disorder could be established on a presumptive basis. To establish service connection for arthritis on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, the August 1961 separation physical revealed normal lower extremities. No medical evidence demonstrates that the veteran experienced arthritis in his left knee to a compensable level within a year after his discharge from active duty. Therefore, service connection for a left knee disability cannot be established on a presumptive basis. The Board has carefully considered the veteran's statements indicating that he has a current left knee disorder as a result of a diving accident while working as a lifeguard on active duty. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., 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). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation and diagnosis are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs