Citation Nr: 1127384 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 08-27 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from February 1955 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. On April 28, 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. REMAND In April 2007, the Veteran filed a claim for VA disability compensation, seeking service connection for, among other things, bilateral knee pain and right shoulder pain. The Veteran maintains that his current knee and shoulder disabilities are related to service. Specifically, he asserts that his current disabilities are the result of injuries sustained while performing his duties as a military policeman and sentry dog handler in service. (The Veteran's separation certificates reflect that his military occupational specialty was air policeman and security police supervisor, and that he had completed patrol dog handler courses and was military working dog qualified.) During his April 2011 Board hearing, the Veteran testified that he was often knocked over by the large dogs he was training and that the dogs would attach themselves to his arm and shake it, pulling on his shoulder joint. He further indicated that in 1956, he injured his knees when he fell into a hole while running. He stated that he sustained an injury to his back at that time as well. (The record reflects that the Veteran is service connected for degenerative changes of the lumbar spine.) The Veteran also reported spraining his knee in service when he fell seven feet and landed on uneven ground. He stated that he was treated with ice at the time. The Veteran stated that he has had consistent knee and shoulder pain since service. A fellow serviceman also testified on the Veteran's behalf. He stated that he had worked for the Veteran in service and also worked with military patrol dogs. The fellow serviceman stated that the dogs would constantly bump into his knees and indicated that shoulder injuries were common, as working with these dogs was a very physical activity. He further reported that he was currently in receipt of service-connected benefits for shoulder and knee disabilities that had been attributed to his military service and specifically to injuries sustained while working with patrol dogs. The Board notes that the Veteran's service treatment records (STRs) are incomplete. The record contains an Air Force Inspector General's report from September 1974 showing that efforts were undertaken to locate the Veteran's health record but yielded no results. Specifically, the records sections in the Tachikawa Hospital Complex, Tama Hospital, and the Yokosuka Naval Hospital had been searched. The available STRs, which were supplied in response to the 1979 request for information, consist of multiple entrance and separation examination reports, and some records of medical care. An August 1960 line-of-duty determination records that the Veteran had fallen when getting out of a truck, causing a contusion to the left rib cage. A May 1974 treatment entry from the Tachikawa Hospital shows that the Veteran was seen for complaints of back pain. A handwritten note on the top of the chronological record of medical care states: "Records Misplaced." Given the incomplete nature of the Veteran's STRs, VA has a heightened duty to assist. See Moore v. Derwinski, 1 Vet. App. 401, 406 (1991). At the outset, the Board notes that the evidence of record demonstrates that the Veteran has current knee and right shoulder disabilities. A March 2006 report of a magnetic resonance imaging (MRI) of both knees revealed a small, lateral meniscal tear with degenerative osteoarthritis of the right knee and advanced chondromalacia and osteoarthritis of the left knee. X-rays of the right shoulder taken in March 2009 showed post-surgical changes with mild glenohumeral joint osteoarthritis. In March 2009, the Veteran underwent a VA examination in connection with his claims of service connection for knee and shoulder disabilities. The examiner noted that the Veteran's duties during service involved working with dogs and that after service, he worked as a United States customs officer. The examiner also acknowledged the Veteran's account of an in-service injury to his knees when he fell into a hole while running with a dog. The examiner diagnosed bilateral knee osteoarthritis, with a small meniscal tear or the right knee, and post-surgical changes of the right shoulder with mild glenohumeral joint osteoarthritis. As to the likelihood that the Veteran's knee and shoulder disabilities are related to service, the VA examiner noted that the available STRs showed complaints related to the Veteran's left elbow and low back, but did not reveal complaints related to the Veteran's right shoulder or knees. The examiner indicated that, given the Veteran's age, it was "not unreasonable with regards to his right knee that he would have some type of osteoarthritis present in both knees." She then stated that without any medical records showing a previous knee injury or any type of meniscal problems prior to military service, it was difficult to attribute any type of bilateral knee osteoarthritis to service. The examiner thus opined that the Veteran's bilateral knee condition was less likely than not a result of his previous military service. The examiner similarly noted the lack of records documenting a shoulder injury in service. The examiner surmised that the Veteran could have sustained an injury to his right shoulder while working as a customs officer. She thus opined that the Veteran's right shoulder disability was less likely than not related to his military service. The United States Court of Appeals for Veterans Claims (Court) has held that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2010). A medical opinion arising from a medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124. As to the question of nexus, the Board finds that a remand is warranted because the March 2009 VA examination report is insufficient. Here, despite acknowledging the Veteran's assertion that his STRs were incomplete and his reported in-service injuries, the VA examiner based her negative nexus opinion on the absence of a documented in-service knee or shoulder injury. The absence of a documented injury, however, is not necessarily negative evidence, especially in the case of an incomplete record. Kahana v. Shinseki, __ Vet. App. __, __ (June 15, 2011), 2011 WL 2349788 at *10 (Lance, J., concurring) ("If the [STRs] are not complete in relevant part, then silence in the [STRs] is merely the absence of evidence and not substantive negative evidence"). Further, regarding the Veteran's right shoulder disability, the VA examiner suggests that the Veteran could have sustained an injury while working as a customs officer after service. The Veteran, however, has not indicated that he injured his shoulder after service, nor does the medical evidence suggest that he incurred a post-service shoulder injury. Accordingly, to the extent that the VA examiner has associated the Veteran's current right shoulder disability with a post-service injury, that opinion does not appear to be based on an accurate factual premise. The Veteran is competent to report on the incurrence of an in-service injury and symptoms such as pain. See Barr, 21 Vet. App. at 307 (stating the "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))). The Board finds that the Veteran's report of pulling on his shoulders and being hit in the knees due to his activities as a canine handler are likewise credible. Accordingly, a remand is warranted for the examiner to specifically address whether there exists a relationship between the Veteran's current disabilities and his reported in-service injuries, as documented in his hearing testimony and other lay evidence of record. As part of that opinion, the examiner should comment on whether there is any medical reason to accept or reject the proposition that the Veteran's current knee and shoulder disabilities are related to his duties as a canine handler. The Board notes that the Veteran submitted private medical evidence that included a statement from T.D., M.D., dated in January 2009, who treated the Veteran for bilateral knee pain and performed a right shoulder surgery. The letter included the following statement: "The patient does have a history of 21 years of military service between 1955 and 1975. It is felt that his diagnosis is related to cumulative trauma over the course of this time period." To the extent that this can be considered a nexus opinion rather than a reiteration of the Veteran's own belief, as the letter contains no discussion of the Veteran's reported in-service injuries or military duties, it is unclear how the private physician reached such a conclusion. Without a more detailed analysis, the Board cannot conclude that the January 2009 private medical evidence is adequate to support a finding of service connection. The Board has also considered the lay assertions of record, to include the testimony of the Veteran's service comrade that the Veteran's knee and shoulder disabilities are related to duties as a canine handler. Although the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service, or symptoms of a current disability, etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion with regard to his knee or shoulder disabilities. See Jandreau, supra; Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Further, although the Veteran's comrade has testified that he has been service connected for knee and shoulder disabilities, which were the result of injuries sustained as a canine handler, every Veteran must be evaluated separately in light of the particular circumstances of his/her service and post-service duties and experiences. Although the testimony is certainly relevant evidence as it describes the experiences of a canine handler, it is not sufficient to establish service connection for the Veteran. Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his knee or shoulder disabilities, or related symptoms, since service. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. The AOJ should specifically request from the San Diego, VA medical center (VAMC) any records related to the Veteran's February 2010 total left knee arthoplasty. The AOJ should also seek to obtain any records from Dr. T.D. M.D., related to a right shoulder surgery. The AOJ should provide the Veteran with any necessary authorizations for release of medical records to the VA and should attempt to obtain any potentially relevant records associated with that surgery. The Veteran is reminded that he too can submit evidence in support of his claim. He is specifically invited to submit a more detailed nexus statement from T.D., M.D. 2. After action requested in paragraph 1 above is completed, the claims folder, and a copy of this remand, must be provided to and reviewed by the examiner who conducted the March 2009 examination. The examiner should provide an opinion as to whether the Veteran's current knee and right shoulder disabilities are at least as likely as not related to his any injuries sustained as a canine handler in service. The examiner must take into account the Veteran's lay statements regarding his in-service injuries, as well as the other lay evidence of record regarding the physical nature of being a canine handler. As part of that opinion, the examiner must specifically identify the medical reasons to accept or reject the Veteran's statements regarding in-service injuries. The examiner must specifically consider the impact of being hit in the knees and knocked over by dogs and having dogs shake and pull on his arm. A rationale for all opinions expressed must be provided. If the examiner determines that she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained. If another examination is required to formulate an opinion, or if the examiner is no longer available, another examination should be scheduled in order for the questions set out above to be answered.) 3. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the issues on appeal must be re-adjudicated. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).