Citation Nr: 1306935 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 02-20 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012) the appeal has been advanced on the Board's docket. The Veteran served on active duty from January 1951 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In April the Veteran testified in a hearing at the RO ("Travel Board" hearing) before an Acting Veterans Law Judge who is no longer acting in that capacity. The Veteran has been advised of his entitlement to another hearing before a currently active Member of the Board but he did not respond within 30 days and has still not responded. His right to an additional hearing is accordingly deemed to be waived. The Board issued a decision in May 2007 that denied these claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in July 2008 granting a Joint Motion of the Parties to vacate the Board's decision and remand the case back to the Board for further development. The Board thereafter remanded this case to the Originating Agency on several occasions, most recently in December 2011. The actions required in the Board's remands have been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran did not have arthritis of the knees or shoulders during service or to a compensable degree within the first year after discharge from service. 2. The Veteran's current disabilities of the right and left knees, variously diagnosed, were not incurred in or aggravated by service. 3. The Veteran's current disabilities of the right and left shoulders, variously diagnosed, were not incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met, and service connection for arthritis of the right knee may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a left knee disability are not met, and service connection for arthritis of the left knee may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a right shoulder disability are not met, and service connection for arthritis of the right shoulder may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for a left shoulder disability are not met, and service connection for arthritis of the left shoulder may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). If service records are presumed to have been destroyed while in government custody, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). As documented in a letter sent to the Veteran in February 2005, the Originating Agency attempted to obtain additional service records from the National Personnel Records Center (NPRC) without success, and invited the Veteran to provide any alternative records in his possession that supported his case. Treatment records have been obtained from those VA and private medical providers identified by the Veteran as having records relevant to the issues on appeal. The Veteran has also been afforded a hearing before the Board, at which he presented oral argument in support of his claims with the assistance of a service representative. In December 2009 the Board remanded the case for additional development, including medical examination that was performed in February 2010. The Board determined in December 2011 that the examination was inadequate and remanded the case for yet another VA examination, but the Veteran failed to report for an examination scheduled in January 2012. By scheduling the Veteran for examination the Originating Agency substantially complied with the requirements articulated in the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Further, the governing regulation states that when a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(a). There is no indication that any additional evidence relevant to the issues decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide any additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Sanders, 129 S.Ct. 1696. Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must generally be medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Further, there is a heightened obligation to carefully consider the benefit-of-the-doubt rule in cases where presumed destroyed while in custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Evidence Service treatment records (STRs) are not available and are presumed to have been destroyed by fire while in government custody. The only in-service medical document of record is the discharge physical examination in July 1957, which shows clinical evaluation of the upper and lower extremities as "normal." In relevant part, the Veteran's PULHES evaluations as noted in the separation examination were U-1 and L-1. (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991), for an explanation of the military medical profile system.) The Veteran presented to Presbyterian Healthcare Services in February 2000 because of weight loss and anemia. During history and physical (H&P) examination the Veteran reported recent onset of pain in the shoulder girdle since being helped to sit up in bed. He reported history of arthritis involving the knees but largely denied other symptoms on review of symptoms (ROS). Physical examination is silent in regard to pain or range of motion of the shoulders or knees. In his March 2001 claim for service connection for a knee disability the Veteran stated a belief that arthritis of both knees was due to "the injury" he had received in service. In his April 2001 claim for service connection for a shoulder disability the Veteran stated he was seeking service connection for arthritis of the shoulder "as a secondary condition," presumably as secondary to the claimed arthritis of the knees since he otherwise has no service-connected disabilities on which a claim for secondary service connection can be based. X-ray of the right knee in April 2001, performed by San Mateo Urgent Care, shows an impression of moderately advanced osteoarthritic changes. An April 2001 letter from Dr. Ronald Vigil states, "I believe the Arthritis that [the Veteran] has in his knees and shoulders could be the result of INJURIES incurred while serving in the United States Air Force from Jan. 1951 through July 1957." Treatment notes by Dr. Keith W. Harvie show the Veteran presented in October 2001 complaining of bilateral knee pain, right worse than left. The Veteran reported longstanding history of arthritic pain since service. The Veteran underwent a right total knee replacement (TKR) in October 2001 with apparently good results. In a letter dated in August 2002, Dr. Harvie stated the Veteran had a history of right knee injury in service in the 1950s and problems with his right [knee] since then, culminating in a right TKR in October 2001. Dr. Harvie stated, "[t]he extent of this man's right knee arthritis could certainly be related to the service-connected injury." The Veteran testified before the Board in April 2003 that during service he fell down a mountainside while carrying a heavy load, injuring his legs and shoulders in the process. This occurred in 1952. He did not really begin to hurt badly until about a year thereafter. During service he was provided supportive wraps for his knees and pain medications. He was treated by his family physician even during service, but that physician is now deceased and his treatment records are not available. He was also treated by several other physicians after service, but they also died in the interim. The Veteran was offered knee surgery several years after discharge from service but declined because he might have been unable thereafter to bend his legs at all. He recently had a right TKR and a left knee replacement was scheduled soon. The Veteran denied any trauma to the knees or shoulders after discharge from service. The Veteran had a VA examination in February 2010, performed by a physician who reviewed the claims file. The examiner noted that STRs are not available and that no post-service treatment records are available prior to 1988. The Veteran asserted he had injured his knees and shoulders in service through a fall while carrying a heavy load. The Veteran endorsed progressive worsening since discharge from service, but the only hospitalization or surgery was the total right knee replacement in October 2001. The examiner performed an examination of the knees and shoulders and noted clinical observations in detail. The examiner's diagnosis in regard to both shoulders was chronic strain/sprain, impingement syndrome with limited motion, mild bicipital tendonitis and degenerative joint disease (DJD). The examiner's diagnosis in regard to the right knee was status post TKR with limited motion and loss of full extension. The examiner's diagnosis in regard to the left knee was chronic strain/sprain with limited motion, advanced DJD and chondromalacia patella with limited tracking. The examiner opined that the Veteran's present bilateral knee and shoulder problems could not be attributed to or the result of a service-connected injury on the basis of the records available, as no injury in service was documented. The Board reviewed the file in December 2011 and determined the VA examiner's opinion was inadequate because the rationale for the opinion was inadequate. The Board accordingly remanded the case for another VA examination, with detailed instructions on the depth of detail required to make the opinion adequate. The Veteran was scheduled for a VA examination in January 2012, but he failed to report for examination. The Originating Agency thereupon readjudicated the claim based on the existing record and returned the case to the Board. Analysis When a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a). Review of the evidence shows the Veteran has diagnosed disabilities of both knees and both shoulders. Accordingly, the first element of service connection - medical evidence of a disability - is met. The Veteran has also reported injury in service and treatment during service. An injury during service may be verified by medical or lay witness statements; see Caluza v. Brown, 7 Vet. App. 498 (1995). The Board accepts as fact the Veteran's statements regarding his injuries in service and thus the second element of service connection - a disease or injury during service - is also met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The medical opinions of record, all of which are inadequate, are conflicting. Dr. Virgil stated in April 2001 that the Veteran's arthritis in his knees and shoulders "could be" the result of injuries in service, and Dr. Harvie stated in August 2002 that the Veteran's right knee arthritis "could certainly be related to the service-connected injury." The VA examiner in February 2010 arrived at the contrary conclusion that that the Veteran's present bilateral knee and shoulder problems could not be attributed to or the result of a service-connected injury in the absence of documentation of such injury. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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. Review of the claims file, in and of itself, does not make a medical opinion more or less probative; rather, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). None of the medical opinions of record fully satisfy the criteria of Nieves-Rodriguez. Drs. Virgil and Harvie provided no rationale whatsoever for their respective opinions. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Further, both Drs. Virgil and Harvie expressed opinions that were essentially speculative ("could have caused"); medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Finally, neither opinion addressed the fact that there is no post-service evidence of treatment for the disabilities until 1988, some 30 years after discharge. The VA examiner had access to the claims file, which enabled him to put the Veteran's reported history into the context of his documented post-service treatment record, but the VA examiner essentially stated that he could not attribute the current disabilities to service in the absence of service treatment records. Thus, while the VA examiner expressed a rationale of sorts, the Board previously determined that such rationale was inadequate. As the Veteran did not report for a new examination that was intended to produce a more probative opinion, the Board must adjudicate the claim based on the existing record. The Board finds that the VA examiner's opinion, while imperfect, is the more probative because it is consistent with the one document from service that is of record: namely, the discharge examination report showing the Veteran to have normal upper and lower extremities on discharge. In that regard, the statements of medical professionals such as Drs. Virgil and Harvie concerning the Veteran's reported history of remote events are of inherently less value than contemporaneous clinical records; see Harder v. Brown, 5 Vet. App. 183, 188 (1993). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence of record the Board has carefully considered the Veteran's lay evidence in the form of his testimony, his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). To the degree that the Veteran has offered lay evidence of an injury in service, the Board has accepted his account as credible and competent. To the degree that the Veteran asserts knee and shoulder pain beginning in service and chronic since service, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Further, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, id., (distinguishing between competency as "a legal concept determining whether testimony may be heard and considered" and credibility as "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board has accepted as credible the Veteran's assertion of knee and shoulder injuries during service, the Board finds the Veteran's account regarding chronic disability beginning in service to be not credible because it is inconsistent with the separation physical examination that showed normal upper and lower extremities at the time of discharge and inconsistent with the absence of any post-service evidence of treatment for the disabilities on appeal for 30 years . The examination report constitutes contemporaneous medical documentation showing the Veteran did not have arthritis or any other chronic disability of the knees or shoulders when he was discharged from service. The Board must consider whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.309(a) for arthritis that became manifest to a compensable degree within the first year after discharge from service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not asserted being diagnosed with arthritis to any degree within the first year after discharge from service, and is not shown to be competent to self-diagnose arthritis within that period. Drs. Virgil and Harvie have stated opinions that the Veteran developed arthritis at some time after service due to injuries in service, but neither physician asserted the Veteran developed arthritis within the presumptive period. Service connection under 38 C.F.R. § 3.309(a) is accordingly not warranted. Turning to the question of nexus between the Veteran's current post-service disabilities (however diagnosed) and service, in 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). The Veteran is shown to have concurrent multiple diagnoses for his shoulders (chronic strain/sprain versus impingement syndrome versus tendonitis versus DJD) and his knees (chronic strain/sprain versus DJD versus chondromalacia patella). These are diagnoses that are not based merely on observable symptomatology but rather on symptomatology plus medical studies and evaluations. They are accordingly not the type for which lay evidence is competent. Kahana, id. Further, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). When service records have been destroyed or are otherwise not available, case law does not lower the legal standard for proving a case of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Similarly, case law does not establish a higher benefit-of-the-doubt standard, but rather heightens the duty of the Board to consider the benefit-of-the-doubt rule and to explain its decision when the service medical records have been destroyed. Ussery v. Brown, 8 Vet. App. 64 (1995). The Board has carefully considered the benefit-of-the-doubt rule, but the preponderance of the competent evidence is against the claims of service connection on appeal. There is no doubt to be resolved. Service connection for the claimed disabilities of the left and right knees and left and right shoulders is not warranted. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs