Citation Nr: 1234262 Decision Date: 10/02/12 Archive Date: 10/11/12 DOCKET NO. 09-29 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee injury. 2. Entitlement to service connection for residuals of a right shoulder injury, claimed as a right shoulder dislocation. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: T. Rhett Smith, Attorney ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from August 1975 to October 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). This is the third time that this case has come before the Board. When this case first came before the Board in March 2011, the Board remanded the claim for further development. The Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). When the case returned to the Board in June 2012, the Board referred this matter to the Veterans Health Administration (VHA) for an advisory opinion concerning the etiology of the Veteran's claimed conditions. The advisory opinion has been obtained and has been included in the claims folder for review. It is also noted that the appellant, along with his representative, were given the opportunity to provide any comments with respect to the opinion and those comments have also been included in the claims folder for review. FINDINGS OF FACT 1. The preponderance of the most probative evidence of record indicates that the Veteran's left knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the most probative evidence of record indicates that the Veteran's right shoulder disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 3. Service connection is not in effect for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in May 2007 and June 2007 - prior to the initial RO decision in this matter - that addressed the notice elements. These letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. These letters also informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The June 2007 letter also provided specific information regarding how claims for TDIU may be substantiated. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, records of his post-service private treatment, and records from the Social Security Administration. The Veteran was afforded a VA compensation and pension examination germane to his claims on appeal, and his case was also referred to the VHA for a specialist's opinion. As noted above, in March 2011, the Board remanded the Veteran's claim for further development. Specifically, the Board directed that the Veteran's updated treatment records be obtained and associated with his claims folder, and that the Veteran undergo a new VA examination. In reviewing the claims file, it is clear that the Veteran's updated VA treatment records were obtained and associated with the claims file. The Veteran underwent a VA examination in June 2011, and the examiner responded to the specific questions posed by the Board. As each of the Board's directives was accomplished, the Board finds substantial compliance with its March 2011 remand instructions. See D'Aries, 22 Vet. App. at 105. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Claims Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the Veteran seeks service connection for both a left knee condition and a right shoulder condition. Each claim is evaluated separately below. Left Knee The Veteran seeks service connection for his claimed left knee condition. For the reasons that follow, his claim shall be denied. First, the Board acknowledges that the Veteran currently suffers from a left knee disability. A July 2008 VA record diagnosed the Veteran as suffering from moderate arthritis of both knees. Also, the examiner from a May 2009 VA examination diagnosed the Veteran as suffering from left knee osteoarthritis. Next, the Board acknowledges that the Veteran injured his left knee during his active service. A review of his service treatment records reveals that in March 1977, the Veteran complained of left knee pain after falling down stairs and twisting his knee. X-rays were within normal limits. He was diagnosed as suffering from a possible meniscus tear, and was ordered to wear a splint. Later that month, a record noted that the Veteran had a "significant improvement" in his knee pain. The Veteran's October 1978 medical examination at separation did not state that he was suffering from any left knee disability. On the Veteran's October 1978 report of medical history, he described his present health as "excellent." He noted his history of broken bones, but denied suffering from bone, joint, or other deformities. The Veteran's claim fails, however, because the most probative medical evidence of record shows that his current disability is not related to his active service. Weighing against the Veteran's claim are the conclusions of two VA examiners and the VHA specialists. The Veteran first underwent a VA examination in May 2009. After reviewing the Veteran's claims file and medical history, the examiner concluded that the Veteran's left knee osteoarthritis was less likely than not related to his active service. The examiner noted that after his injury, there was no record of further complaints during his active service. The examiner stated that more than 30 years had passed between the Veteran's in-service injury and his seeking medical attention for his knee. He stated that three positive factors leading to bilateral degeneration of his knees that outweigh the single military injury to his left knee. Specifically, the examiner stated that the Veteran's advanced age, his obesity and his job in construction were all more significant factors to his developing osteoarthritis of the knees than his single in-service injury. The Veteran underwent a second VA examination in June 2011. The examiner diagnosed the Veteran as suffering from osteoarthritis of the left knee, and concluded that the Veteran's current condition was less likely than not the same as or due to his in-service injury. The examiner noted that the Veteran's condition can undergo natural progression not worsened by his service, and that his condition was more likely consistent with his age. Most recently, in a July 2012 VHA opinion, a VA Chief of Surgery and a VA orthopedic surgeon both concluded that the Veteran's left knee condition is less likely than not related to his active service. The VHA specialists stated that the Veteran currently suffers from mild to moderate degenerative joint disease in his left knee. They stated that while there was speculation of a possible left knee meniscal injury in 1977, the Veteran made a full recovery. The specialists noted that the Veteran denied suffering from knee pain, difficulty with knee motion, swelling, or a trick knee at his 1978 discharge. The specialists wrote that meniscal injuries are not a direct cause of osteoarthritis, and that the Veteran did not complain of knee pain until 2008. The specialists noted that the Veteran's osteoarthritis in his left knee is likely related to his age and his long years of manual labor and heavy lifting. In contrast to these opinions, the Veteran submitted two opinions from William C. Wilson, DO. In an April 2011 letter, Dr. Wilson stated that, while in Vietnam, the Veteran had to jump from helicopters to retrieve killed or injured soldiers. He stated that this "constant abuse of his legs definitely led to [his knees'] deterioration and current condition." He stated that the Veteran's knee, back, and shoulder conditions were all due directly to the Veteran's military service. In a separate May 2011 opinion, Dr. Wilson concluded that the Veteran's left knee disability is as likely as not linked to his left knee problems from his active service. In this letter, Dr. Wilson provided no additional support for his opinion. For many reasons, the Board finds the opinions of the VA examiners and the VHA specialists to be more probative than that of Dr. Wilson's. First and most importantly, Dr. Wilson's conclusions are based on an inaccurate factual premise. See Nieves-Rodriguez, 22 Vet. App. 303-04 (the initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises of the case). It is well settled that a medical "opinion based upon an inaccurate factual premise has no probative value." See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, it is well settled that a review of the claims folder alone is not a valid basis to prefer or discount a private or VA medical opinion. See Gardin v. Shinseki, 613 F.3d 1374, 1378 (Fed. Cir. 2010); Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. Here, the Board finds the VA medical opinions more probative not based on whether the examiner reviewed the Veteran's medical records or whether physical examination was performed but instead whether the opinions were based on an accurate factual premise because the Board, as a finder of fact, concludes that the Veteran's report of a continuity of symptoms since service is not credible. Dr. Wilson based his April 2011 nexus opinion on the fact that the Veteran had made over 100 jumps from helicopters during his service in Vietnam. This description of the Veteran's service is inconsistent with his service record and thus without merit as the Veteran never served in Vietnam and there is no evidence that he jumped out of helicopters. The Veteran's DD Form 214 shows that he had no foreign or sea service, and that his Military Occupational Specialty was vehicle operator dispatcher. In his October 2007 VA examination, the Veteran denied any tours of duty in Vietnam, and he stated that his job in the military was a heavy equipment operator. In contrast, the VA examiners and the VHA specialists were well aware of the actual circumstances of the Veteran's service, and they specifically cited the March 1977 left knee injury that the Veteran did suffer during his active service. Further, the opinions of the VA examiners and the VHA specialists are more detailed and more reasoned. Both the examiners and the specialists explained in detail why they found that the Veteran's left knee disability was less likely than not related to his active service. Dr. Wilson's April 2011 letter was spent primarily discussing the current effects that the Veteran's disabilities produce. Dr. Wilson's May 2011 conclusion is supported by no rationale whatsoever. In an August 2012 letter, the Veteran's representative argues that Dr. Wilson's opinions should be afforded more probative value than that of the VHA specialists. The representative argued that Dr. Wilson actually examined the Veteran face-to-face, and that Dr. Wilson reviewed the Veteran's service treatment records and medical history before offering his opinion. The representative's argument is not persuasive. Though he argues that Dr. Wilson reviewed the Veteran's service treatment records, at no point did Dr. Wilson ever discuss the Veteran's March 1977 left knee injury. Indeed, as shown above, Dr. Wilson based his opinion on an utterly incredible recitation of the facts. Further, Dr. Wilson's opinion is weighed not only against those of the VHA specialists, but also against the two VA examiners who did examine the Veteran and concluded that his left knee disability is less likely than not related to service. In summary, the Board finds that the more probative evidence of record indicates that the Veteran's current left knee disability is less likely than not related to his active service. As the great weight of the evidence is against the Veteran's claim, the benefit of the doubt rule is not at issue. Accordingly, the Board concludes that the criteria for service connection for a left knee condition have not been met. Right Shoulder The Veteran also seeks service connection for a right shoulder condition. For the reasons that follow, his claim shall be denied. First, the Board notes that the Veteran currently suffers from a right shoulder disability. An October 2007 X-ray noted that the Veteran had mild degenerative changes at the right acromioclavicular joint. The Veteran also had an irregularity of the midshaft of the right clavicle, likely related to remote trauma. There was narrowing of the acromiohumeral distance suggesting underlying rotator cuff quality. In a June 2011 VA examination, the examiner diagnosed the Veteran as suffering from right shoulder degenerative joint disease with mild functional limitation. The Board also acknowledges that the Veteran injured his right shoulder during his active service. A review of the Veteran's service treatment records reveals that he injured his right shoulder in a February 1976 car accident. X-rays revealed that the Veteran had a fracture of his right clavicle. He was placed in a figure 8 splint. A February 1977 orthopedic clinic report noted that the Veteran's fracture was in a good position, though still tender. He was placed in a splint. In March 1977, the Veteran was cleared to return to duty. The Veteran's October 1978 medical examination at separation noted that he had full motion and strength of the right clavicle. He was not found to be suffering from any problems with his upper or lower extremities. The examiner noted the Veteran's February 1976 fracture of his right clavicle, but stated that the Veteran had no complications and no sequelae. On the Veteran's October 1978 report of medical history, he described his present health as "excellent." He noted his history of broken bones, but denied suffering from bone, joint, or other deformities. The Veteran's claim fails, however, because the most probative medical evidence of record shows that his current right shoulder disability is less likely than not related to his active service. As above, the opinions of two VA examiners and two VHA specialists weigh against the Veteran's claim. The Veteran first underwent a VA examination in October 2007. After examining the Veteran and reviewing his claims file and medical history, the examiner concluded that the Veteran's right shoulder condition is less likely than not related to his active service. He stated that the Veteran separated from service in 1978. Following his military career, the Veteran worked in manual labor jobs for 29 years and only now complained of pain relating to remote and isolated military incidents. He stated that even after the Veteran's in-service injuries, he served in the military for two more years with no further complaints. The Veteran underwent a second VA examination in June 2011. After examining the Veteran and reviewing the medical history, the examiner also concluded that the Veteran's right shoulder condition is less likely than not related to his active service. He noted that the Veteran's current diagnosis can undergo natural progression that is not worsened by service, and that the Veteran's current disability was more likely consistent with his age. In a July 2012 VHA opinion, a VA Chief of Surgery and a VA orthopedic surgeon both concluded that the Veteran's right shoulder condition is less likely than not related to his active service. The VHA specialists noted that, at the time of his discharge, the Veteran had no complaints of pain or tenderness in his right shoulder, and he had full range of motion in that shoulder. The specialists stated that such findings would not be possible if the Veteran were then suffering from a rotator cuff tear. Further, the specialists noted that X-rays of 2005 showed no evidence of osteoarthritis; instead, the first evidence of osteoarthritis came in 2007, 29 years after his discharge from service. The specialists concluded that the Veteran's osteoarthritis in his right shoulder is likely related to his age and his long years of manual labor and heavy lifting and less likely as not to his active service. Supporting the Veteran's claim are two opinions from Dr. Wilson. In his April 2011 letter, Dr. Wilson diagnosed the Veteran as suffering from severe osteoarthritis, and stated that this was related to his jumping from helicopters more than 100 times during his service in Vietnam. In a separate May 2011 opinion, Dr. Wilson wrote that the Veteran's right shoulder condition was related to his active service. He stated that the Veteran's in-service break was poorly healed, and that there was no physical therapy ordered. For the same reasons as listed above, the Board finds the opinions of the VA examiners and the VHA specialists to be more probative. Once again, Dr. Wilson's April 2011 opinion is based on an incorrect recitation of the Veteran's history. Further, Dr. Wilson provided no support for his May 2011 statement that, following the Veteran's in-service clavicle fracture, that the fracture was "poorly healed." Indeed a February 1977 in-service orthopedic clinic report noted that the Veteran's fracture was in a good position, and his October 1978 separation examination noted that he had full motion and strength of his right clavicle, and that he had no complications and no sequelae. Dr. Wilson's statement is thus contradicted by the evidence of record. The Veteran is also not entitled to service connection on a continuity of symptomatology basis. Again, continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. In his June 2007 claim for a TDIU, the Veteran stated that his shoulder has hurt continuously. He stated that he did not work in construction for 12 years, and that when he tried to again in 2004, he reinjured his shoulder. Under this framework, however, the Board finds that the Veteran's statement supporting a post-service continuity of symptomatology is not credible. Again, the Veteran's October 1978 separation examination was silent as to his suffering from pain or any complications with regard to his right shoulder. The Veteran's October 1978 report of medical history also does not indicate that the Veteran was suffering from any right shoulder pain or other symptomatology; instead, the Veteran described himself as being in excellent health. Finally, there is no objective medical evidence of the Veteran's suffering from right shoulder pain or problems continuously since his active service. Given the Veteran's inherently incredible statement to Dr. Wilson, the Board questions his credibility in stating that he has suffered from right shoulder problems continuously since service. Absent corroborating evidence and in the face of contradictory evidence, the Board concludes that the Veteran's statement alone may support a finding of continuity of symptomatology. Accordingly, he is not entitled to service connection under this framework. In summary, the Board finds that the more probative evidence of record indicates that the Veteran's current right shoulder disability is less likely than not related to his active service. The Board further finds that there is no credible evidence of a continuity of symptomatology of the Veteran's right shoulder symptoms since service. Also, as the great weight of the evidence is against the Veteran's claim, the benefit of the doubt rule is not at issue. Accordingly, the Board concludes that the criteria for service connection for a right shoulder condition have not been met. III. Entitlement to a TDIU A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment - defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person - shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. In this case, the Veteran is not service-connected for any disabilities whatsoever, and the Board has denied his two claims for service connection that remain on appeal. As the Veteran is not service-connected for any disabilities, he cannot be awarded a TDIU, and his claim must be denied as a matter of law. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. ORDER Service connection for a left knee condition is denied. Service connection for a right shoulder condition is denied. Entitlement to a TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs