Citation Nr: 1301959 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 02-16 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for left shoulder rotator cuff tear. 2. Entitlement to service connection for degenerative disk disease of the cervical spine. 3. Entitlement to service connection for a bilateral elbow disorder. 4. Entitlement to service connection for degenerative joint disease of the right knee, status post-total knee arthroplasty. 5. Entitlement to service connection for degenerative joint disease of the left knee, status post-total knee arthroplasty. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from April 1968 to January 1970, including combat service in the Republic of Vietnam. His decorations include the Purple Heart Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2000 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Muskogee, Oklahoma. In an April 2008 decision, the Board reopened the Veteran's claims for service connection for left shoulder and neck disorders and remanded the underlying claims for service connection for additional development. The Board also remanded the claims for service connection for bilateral knee and elbow disorders. In July and November 2012, the Board requested opinions medical specialists from the Veterans Health Administration (VHA). The opinions were received in September and December 2012. In light of the favorable VHA opinions, the Board will proceed with the consideration of his case. FINDINGS OF FACT 1. The Veteran's left shoulder rotator cuff tear had its onset during combat service in Vietnam. 2. The Veteran's degenerative disk disease of the cervical spine had its onset during combat service in Vietnam. 3. The Veteran's bilateral elbow disorder had its onset during combat service in Vietnam. 4. The Veteran's degenerative joint disease of the right knee, status post-total knee arthroplasty, had its onset during combat service in Vietnam. 4. The Veteran's degenerative joint disease of the left knee, status post-total knee arthroplasty, had its onset during combat service in Vietnam. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for left shoulder rotator cuff tear have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for establishing entitlement to service connection for degenerative disk disease of the cervical spine have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. The criteria for establishing entitlement to service connection for a bilateral elbow disorder have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 4. The criteria for establishing entitlement to service connection for degenerative joint disease of the right knee, status post-total knee arthroplasty, have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 5. The criteria for establishing entitlement to service connection for degenerative joint disease of the left knee, status post-total knee arthroplasty, have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for a bilateral elbow condition, a bilateral knee disability, a left shoulder condition and a cervical spine disability. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran seeks service connection for a bilateral elbow condition, a bilateral knee disability, a left shoulder condition and a cervical spine disability due to injuries sustained as a result of being injured in a mortar attack during his period of active service in March 1969. He described that during the attack, at which time he had sustained shell fragment wounds to his lower left extremity, a sandbag also fell on his head, injuring his neck and left shoulder. The Veteran has also asserted service connection for the claimed disabilities as secondary to his service-connected posttraumatic stress disorder (PTSD) ), rated as 100 percent disabling. In support of his claim, the Veteran submitted an Internet article noting that studies have found that people with PTSD are more likely to experience physical health problems including arthritis and pain. 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 symptomalogy. 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 cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 v. Nicholson, 492 F.3d 1372, 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). 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). Further, 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). 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. See 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."). The service treatment records show that in October 1968 the Veteran was treated for a neck strain while playing football. A report of medical history at service separation from active duty, dated in January 1970, reflects that the Veteran reported having "swollen or painful joints"; however, he denied having a trick or locked knee. The Veteran was awarded a Purple Heart certificate in light of wounds received in action in the Republic of Vietnam in March 1969. After service, a 1976 operative report shows that the Veteran underwent repair of a torn right medial meniscus and arthrotomy of the right knee due to an on-the-job injury. VA outpatient treatment records, dated from February 1981 to June 2007 show intermittent treatment for symptoms associated with a left shoulder, knees and neck disorder. A March 1981 VA hospitalization summary noted the Veteran's complaints of pain in the knees and left shoulder, along with a report of injuries to the knees incurred during an in-service explosion. The Veteran underwent left knee arthroscopy. A May 1981 VA treatment record noted treatment for the knees and shoulder post-service discharge, along with a history of being hospitalized in service following an in-service explosion in March 1969. An x-ray of the left shoulder revealed changes possibly consistent with a previous rotator cuff injury. In May 1983 the Veteran reported injuring his left shoulder in service. A VA treatment record in February 1988, noted a history of chronic cervical pain and problems with the knees, shoulders and left arm, since a 1969 rocket attack. VA and private treatment records in June 1988, show treatment for a cervical and left ulnar injury following a motor vehicle accident. Upon initial admission, however, the Veteran indicated that he had old neck pain from a war injury. In January 1998, a clinician noted degenerative changes of the right knee. Most recently, on VA examination in January 2011, the examiner diagnosed degenerative joint disease of the right and left knees, status post-total knee arthroplasty, left shoulder disorder rotator cuff tear, and degenerative disk disease of the cervical spine. VA and private treatment records post-service discharge, to include VA examination reports in September 2004, July 2008, and January 2011, show continued reports of onset of symptoms pertaining to the neck, knees, left arm, and shoulders, since 1969 due to injuries incurred during a mortar attack in service. Accordingly, the evidence shows that the Veteran served in combat and his report of injury is consistent with the circumstance of his combat service, and that the incident to which the Veteran attributed his bilateral knee, left shoulder, and neck disabilities, which has been conceded by VA, is consistent with the circumstances, conditions and hardships of that service. 38 U.S.C.A. § 1154(b). In addition, the medical evidence shows that the Veteran has been diagnosed as having a bilateral elbow disorder, degenerative joint disease of the right and left knees, status post-total knee arthroplasty, left shoulder rotator cuff tear, and degenerative disk disease of the cervical spine, and the Veteran consistently reports the onset of the conditions during combat service in Vietnam. Further, the Board finds that he is both competent to report observing problems with his knees, elbows, left shoulder, and neck, during and since serving in combat in Vietnam and that his account of having problems with the knees, elbows, left shoulder, and neck since that time is credible. Moreover, the competent medical evidence supports the claims. In a September 2012 letter, a VHA medical expert (an orthopedist), provided an advisory medical opinion as to the likelihood of an etiological relationship between the Veteran's bilateral elbow condition, bilateral knee disability, left shoulder condition and cervical spine disability, and his service Following a review of the claims file, the VHA expert opined, based on the history and mechanism of the Veteran's initial March 1969 injury, as well as a review of VA and private treatment records from 1970 to 1988, which documented injuries to the cervical spine and left shoulder incurred at the time of the in-service mortar explosion, that the initial injuries were probably soft tissue injuries that predisposed the Veteran to later degenerative conditions that became more symptomatic as time progressed. The examiner noted that this was consistent with the Veteran's continued complaints of neck and shoulder pain after service, as well as clinical findings of cervical spondylosis on CT scan and x-rays in the 1980's. The VHA expert further noted that in the 1970's x-rays of the left shoulder demonstrated chronic rotator cuff pathology for which the Veteran underwent repair in the 1980's. It would take a significant period of time for these changes to occur, which was consistent with the timing of the injury 10 years earlier during service. Significantly, history presented by the Veteran had been consistent regarding injuries to the neck and shoulder during service. The VHA orthopedist further opined that it was unlikely that the ultimate bilateral knee osteoarthritis, as shown post-service discharge, could have been caused by the March 1969 injury. The VHA orthopedist explained that it would be highly unlikely that the Veteran would have had a significant injury in 1969, with no problems until some years thereafter. In this regard, the VHA orthopedist noted that 1976 medical records for treatment rendered in connection with a right knee work injury failed to mention arthritis or other knee injuries. Additionally, 1981 records associated with left knee arthroscopy noted no significant abnormalities. The Board finds that the evidence is not sufficient to rebut the presumption that his bilateral knee disabilities are the result of injuries incurred during his combat service. See Reeves. Similarly, while the VHA orthopedist in September 2012 did not associate the current bilateral knee degenerative changes with the March 1969 mortar explosion, in a December 2012 letter, a VHA medical expert provided an advisory medical opinion that etiologically linked the Veteran's bilateral knee disabilities and his service-connected PTSD. The VHA psychiatrist noted the in-service mortar blast in Vietnam, which was followed by 2 weeks of hospitalization. The VHA psychiatrist opined that it was more likely than not that the Veteran's bilateral knee symptoms were aggravated by his PTSD, by approximately 10 to 15 percent. Thus service connection for a bilateral knee disability as secondary to the service connected PTSD is warranted based on the medical opinion of the VHA psychiatrist. However, as the Board finds that the Veteran is entitled to service connection for a bilateral knee disability due to injuries incurred in combat, further discussion regarding secondary service connection under 38 C.F.R. § 3.310 is not warranted. The Board acknowledges that VA medical examiners in September 2004, July 2008, April 2010, and January 2011, rendered medical opinions against the claims for service connection. The VA examiners, while acknowledging the Veteran's reports of injuries sustained during the March 1969 mortar explosion, determined that it was less likely than not that the Veteran's disabilities of the knees, left shoulder and neck were related to or had onset during active duty. In essence, the examiners based the opinions on the finding that there was no evidence of chronicity occurring during or after active duty until 1987, which was 17 years post discharge. In this regard, the VA examiner in January 2011, acknowledged that the injuries on active duty had been conceded and that the Veteran was competent to report current symptoms and continuity of symptoms, however, the examiner found that 17 years elapsed between when the Veteran suffered his injury and when he presented for treatment. The examiner also noted that the Veteran suffered intervening injuries during that period, and that the lack of medical documentation of symptomatology between 1970 and 1987 was "incongruous with the existence of a significantly physically disabling condition." However, these opinions were based on the lack of evidence of chronicity during service and after the Veteran's separation from service. The examiners failed to consider the Veteran's competent and credible lay reports of continuity of symptomatology, which as noted by the VHA orthopedist, consistently and repeatedly attributed onset of symptoms since the initial injury sustained in March 1969. Because the Veteran is competent to report in-service symptoms and injuries, a continuity of symptomatology since service, and current symptoms, this renders the September 2004, July 2008, April 2010, and January 2011 VA examination and opinion reports inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, the improper reliance on the absence of documented treatment for a bilateral knee disorder, left shoulder disability and cervical spine condition after separation from service and a lack of corroborating medical evidence in determining there is no nexus between the Veteran's current disabilities and service without addressing the competent evidence of continuity of symptomatology, diminishes the probative value of the opinion. Symptoms, not treatment, are the essence of any evidence of a continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). In sum, in light of the Veteran's in-service combat-related injury; the credible report of problems with the knees, elbows, left shoulder and cervical spine since service; the diagnoses of a bilateral elbow disorder, degenerative joint disease of the right and left knees, status post-total knee arthroplasty, left shoulder disorder rotator cuff tear, and degenerative disk disease of the cervical spine; and competent medical evidence that associates the disabilities with service, the Board finds that service connection for a bilateral elbow disorder, degenerative joint disease of the right and left knees, left shoulder rotator cuff tear, and degenerative disk disease of the cervical spine, is warranted because the disabilities had onset in service. ORDER Service connection for left shoulder rotator cuff tear is granted. Service connection for degenerative disk disease of the cervical spine is granted. Service connection for a bilateral elbow disorder is granted. Service connection for degenerative joint disease of the right knee, status post-total knee arthroplasty, is granted. Service connection for degenerative joint disease of the left knee, status post-total knee arthroplasty, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs