Citation Nr: 1122802 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 10-22 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee condition as secondary to a service-connected chronic lumbosacral strain with scoliosis, postural leg shortening and nerve root involvement with degenerative disc disease and bilateral lumbosacral radiculopathy (low back disability). 2. Entitlement to service connection for a left shoulder condition as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT THE HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to July 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Louisville, Kentucky. In January 2011, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board acknowledges that the Veteran provided some testimony regarding his service-connected low back disability, and that the August 2009 rating decision also denied entitlement to an increased evaluation for his low back disability. The Board notes, however, that the Veteran specifically noted on his Form 9 appeal that he only wished to appeal the two issues being decided herein. Therefore, the issue of entitlement to an increased evaluation for the Veteran's low back disability is not properly before the Board. FINDINGS OF FACT 1. The Veteran is not shown by the most probative evidence of record to have a left knee disability that is attributable to a service-connected disability. 2. The Veteran is not shown by the most probative evidence of record to have a left shoulder disability that is attributable to a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2010); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. Service connection for a left shoulder disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims for service connection a left knee disability as secondary to a service-connected low back disability, and a left shoulder disability as secondary to a service connected low back disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2010). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letters dated May 2008 and July 2008 (and subsequent notices) fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010). The VCAA letters informed the Veteran of what information or evidence was needed to support his claims, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. Also, the notices explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any additional relevant treatment records for VA to obtain. Therefore, the Board finds that the record contains sufficient evidence to make a decision on the claims. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with VA examinations in June 2008 relating to his left knee claim only, and in May 2009 relating to his left knee and left shoulder claims. These were both conducted by the same VA physician. The Board finds that the June 2008 and May 2009 VA examination reports are sufficient upon which to base a decision with regard to the Veteran's claims. The entire claims file was reviewed, a history was elicited from the Veteran, he was examined, and the examiner (same for both) provided adequate reasoning for his conclusions. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2010). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2010). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran serve don active duty from July 1979 to August 1987. He is service-connected for a low back disability with nerve root involvement. The Veteran claims that on December 6, 2007, his low back disability caused one of his legs or knees to "give," that he fell down nine stairs, and that he incurred left knee and left shoulder disabilities as a result. With regard to the Veteran's left knee, June 2008 and May 2009 VA radiological reports reflect that the Veteran's knees revealed large joint effusions and moderate to severe tricompartmental osteoarthrosis within the medial compartments bilaterally. In addition, the June 2008 VA examination report reflects a diagnosis of osteoarthrosis status post left meniscal tear repair, and the May 2009 VA examination report reflects a diagnosis of a left knee meniscal tear. With regard to the Veteran's left shoulder, a May 2009 VA radiological report reflects that the Veteran's left shoulder revealed old rotator cuff tendinopathy of the greater tuberosity, and a partial resection of the acromion and lateral end of the clavicle. Likewise, the May 2009 VA examination report reflects a diagnosis of chronic left rotator cuff tendinopathy. In light of the above, the Board finds that the Veteran clearly has current left knee and left shoulder disabilities. The Board will now address whether the Veteran's left knee and left shoulder disabilities were caused or aggravated by his service-connected low back disability. Private treatment records from Dr. M.G. dated from July 2003 to September 2004 reflect that the Veteran had left shoulder problems that Dr. M.G. related to the Veteran's work as a driver. See VA Treatment Record, January 2004. A July 2003 MRI revealed moderate rotator cuff tendinopathy, peritendinitis, and subacromial bursitis with an associated 8mm tear of the supraspinatus tendon along the humeral surface. A September 2004 operative report prepared by Dr. F.H. (apparently an associate of Dr. M.G.) reflects that the Veteran underwent left shoulder athroscopic subacromial decompression, arthroscopic Mumford, and arthroscopic labral debridement procedures. A post-operative diagnosis of left shoulder impingement, acromioclavicular arthropathy, and large superior and posterior labral tear was recorded. Emergency room treatment records dated December 6, 2007 from St. Elizabeth Medical Center reflect that the Veteran arrived via EMS, and that he reported that 20 minutes prior, he "slipped" on carpeted steps and fell approximately five stairs onto his left shoulder. The Veteran also reported his prior rotator cuff tear on the same shoulder. Physical examination revealed a dislocated left shoulder but that the "rest of soft tissue examination is normal." Films showed an acute anterior dislocation, and a reduction procedure was performed. It was noted that the Veteran was not at risk for chronic falls. No mention is made of any left knee problems, back problems, or of either of the Veteran's legs or knees "giving way" and causing him to fall. A March 2008 operative report prepared by Dr. F.H. reflects a pre- and post-operative diagnosis of a left knee lateral meniscal tear, and that partial lateral meniscectomy, patella and medial femoral condyle chondroplasty, and lateral femoral condyle arthroplasty procedures were performed. A June 2008 VA examination report relating to the Veteran's left knee claim (as well as a separate claim for leg numbness as secondary to his service-connected back disability) reflects that the Veteran reported to the examiner that on December 6, 2007, his right knee gave out on him when he was walking down the stairs and that he fell down 9 steps and injured his left knee. The examiner noted that the fall resulted in a lateral meniscal tear, for which repair surgery was performed in March 2008. The examiner also noted that a May 2008 VA nerve conduction study and EMG needle examination report reflected an impression of chronic bilateral lumbosacral radiculopathies (L5, S1), with the most affected nerve root being the right L5 nerve root. The examiner also performed detailed motor and sensory and reflex examinations of the Veteran's lower extremities, strength was noted as 5/5 and sensation was noted as 2/2 with no abnormal sensation, and no knee instability was shown on examination. X-rays of both knees revealed large bilateral joint effusions and moderate to severe tricompartmental osteoarthrosis within the medial compartments bilaterally. The examiner recorded a diagnosis of osteoarthrosis status post left meniscal tear repair. The examiner opined that it is less likely as note that the Veteran's left knee condition is secondary to his service-connected back disability. The examiner reasoned that while the May 2008 EMG supported evidence of radiculopathy, his examination was fairly unremarkable. Aside from mild hip weakness and absent ankle reflexes, the examiner noted that the Veteran's otherwise had good strength throughout and had good sensation throughout his lower extremities - vibration, light touch, and pinpoint were all intact, and there was no joint laxity or abnormality of ligaments on examination. The examiner further noted that x-rays revealed moderate to severe bilateral osteoarthrosis with bilateral joint effusions, which suggests a chronic condition of the knees and would not be related to the Veteran's back. The examiner opined that the Veteran's bilateral knee osteoarthrosis was more likely the cause of his fall. In addition, the examiner noted that osteoarthrosis can be a risk factor for a meniscal tear, and the examiner opined that the December 2007 fall exacerbated this process. Moreover, the Board notes that in addressing the Veteran's claim for service connection for bilateral leg numbness as secondary to his service-connected low back disability, the examiner opined that the Veteran's complaints of bilateral leg numbness for years were less likely than not related to his back disability because, again, physical examination was fairly unremarkable except for absent ankle reflexes, motor and sensory testing was intact, straight leg testing was negative, May 1998 nerve conduction and EMG studies were normal despite similar complaints by the Veteran, and the May 2008 EMG showed a fairly unremarkable exam except for radiculopathy and associated nerve root involvement. A May 2009 VA examination report prepared by the same VA examiner with regard to the Veteran's left knee and left shoulder claims reflects that the examiner noted the Veteran's reported history of a work-related left rotator cuff injury in 2003 while strapping in a senior citizen for transport as a bus driver, which was followed by rotator cuff repair surgery in September 2004. The examiner noted the Veteran's reported history of falling on December 6, 2007down nine stairs when his right leg "gave out at the knee" and injuring his left shoulder and left knee, followed by surgical repair on his left knee in March 2008. The examiner performed detailed motor and sensory and reflex examinations of the Veteran's lower extremities, and strength was noted as 5/5 and sensation was noted as 2/2 with no abnormal sensation. The examiner noted that June 2008 and May 2009 x-rays of the Veteran's knees revealed large joint effusions and moderate to severe medial compartment arthrosis with varus deformity, and the examiner also noted a diagnosis of a left meniscal tear. A May 2009 x-ray of the Veteran's left shoulder revealed old rotator cuff tendinopathy of the greater tuberosity, and a partial resection of the acromion and lateral end of the clavicle. The examiner also interviewed and examined the Veteran with regard to his service-connected back condition with nerve root involvement (in connection with a claim for a higher evaluation), including a detailed reflex exam, and the May 2008 EMG study was reviewed by the examiner and incorporated into her report. The examiner opined that she was unable to relate the Veteran's left shoulder and left knee conditions to his service-connected back condition with nerve root involvement without resorting to mere speculation. The examiner explained that the Veteran had no prior history of falls, and that his reported fall in December 2007 was an isolated incident. The examiner further explained that "the patient himself is describing his knee as 'buckling' rather than a loss of lower extremity strength as seen with radiculopathy, and that he had no lower extremity weakness on examination. The examiner further explained that even if weakness was present at the time of the falling accident, the examiner would still be unable to relate the Veteran's current left shoulder and left knee conditions to the December 2007 falling accident because the Veteran had a prior history of a work-related left shoulder injury with chronic rotator cuff tendinopathy on x-ray, and because he had longstanding tricompartmental arthritis in his left knee. The Board finds the above June 2008 and May 2009 opinions of the VA examiner to be the most probative evidence of record with regard to whether the Veteran has a current left knee or left shoulder disability that was caused or aggravated by his service-connected low back disability. The VA examiner elicited a detailed history from the Veteran, explained his detailed review of the medical evidence of record, and provided detailed reasoning for his conclusions. The Board acknowledges all of the lay statements made by the Veteran, particularly his account of his right leg or knee "giving way" and causing him to fall down the steps on December 6, 2007 (and injure his left shoulder and left knee), and the Board acknowledges the Veteran's reports of bilateral leg numbness in recent treatment records. See, e.g., VA Treatment Record, April 2010. In this regard, the Board also acknowledges that the Veteran is competent to report feeling as if his right knee or leg gave way and falling. See Charles v. Prinicipi, 16 Vet. App. 370 (2002). The Board is troubled by this assertion, however, given the fact that the Veteran reported to clinicians at the St. Elizabeth emergency room just minutes after the falling accident that his foot slipped on the stairs and caused him to fall. See Private Treatment Records, St. Elizabeth Medical Center, December 6-7, 2007. Likewise, the Veteran reported to Dr. M.G. on two December 2007 and January 2008 patient history forms, when seeking treatment for his left shoulder and left knee, that he "slipped" and fell down the stairs. The Board notes that, generally, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992) (discussing exception to hearsay rule to statements made for the purpose of medical treatment). However, even assuming that his fall was due to his right knee giving way, as he now asserts, this would not be inconsistent with the opinion of the VA examiner. As noted, the Veteran is certainly competent to describe symptoms, to include reporting that his knee gave way and caused him to fall. Nevertheless, he is not necessarily competent to opine as to the underlying mechanisms responsible for such giving way. As discussed, the VA examiner acknowledged that the Veteran had nerve root involvement, but also noted that the Veteran described his knee as "buckling" rather than a loss of lower extremity strength as seen with radiculopathy, and that he had no lower extremity weakness on examination. The examiner also explained that the Veteran had no prior history of falls, and that his reported fall in December 2007 was an isolated incident. For these reasons, the examiner opined that he was unable to relate the Veteran's left shoulder and left knee conditions to his service-connected back condition with nerve root involvement without resorting to mere speculation. The examiner further explained that even if weakness was present at the time of the falling accident, the examiner would still be unable to relate the Veteran's current left shoulder and left knee conditions to the December 2007 falling accident because the Veteran had a prior history of a work-related left shoulder injury with chronic rotator cuff tendinopathy on x-ray, and because he had longstanding tricompartmental arthritis in his left knee. While the Veteran's description of his fall and the symptoms experienced at that time are certainly probative, the Board finds the opinion of the VA examiner to be far more probative in determining the likelihood that such fall was due specifically to his back disability, rather than other underlying disability. As noted, the examiner provided a thorough rationale as to why it would be mere speculation to conclude that his fall was due to his back disability and nerve root involvement. The Board notes that a possible connection or one based on "speculation" is too tenuous a basis on which to grant service connection. The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102; see also Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection). The Board also acknowledges that in a March 2009 letter, Dr. M.G. wrote that in December 2007, the Veteran's right leg and right knee "gave way" and caused him to fall down steps and injure his left shoulder and left knee, and in which Dr. M.G. opined that when an L5 nerve root is affected as in the Veteran's case as shown in the May 2008 EMG report, this can certainly cause the leg to function in a weakened and abnormal fashion, and that it was his opinion that the nerve damage caused his right leg to be dysfunctional and give way in December 2007 causing the Veteran to fall down the steps. The Board finds, however, that the the opinion of Dr. M.G. is far less probative than the opinions of the VA examiner. In particular, the Board notes that the March 2009 opinion of Dr. M.G, is not consistent with his own opinion noted only a month before in a February 2009 treatment record. In the earlier record, Dr. M.G. took note of the fact that the Veteran already had degenerative disease in his knees prior to the December 2007 falling accident, and merely indicated that the L5 nerve root situation "could have contributed" to his falling and injuries. In the March 2009 opinion, the physician makes no mention of the degenerative disease of the knees, and indicates that the nerve damage "resulted" in the right leg giving way. Furthermore, the VA examination report was far more detailed as to the severity of the Veteran's nerve root impingment, which weighed heavily in the opinion of the VA examiner. Dr. M.G. on the other hand, speaks only in general terms as to why nerve root impingment can cause such a fall, but does not discuss in specifics the nature and severity of the Veteran's particular disability. For these reasons, the Board finds the VA opinion to be far more probative. In summary, for the reasons and bases set forth above, the Board finds that the preponderance of the evidence is against granting service connection for a left shoulder and left knee disabilities as secondary to a service-connected low back disability. The benefit-of-the-doubt rule is not for application; there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a left knee condition as secondary to a service-connected low back disability is denied. Entitlement to service connection for a left shoulder condition as secondary to a service-connected low back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs