Citation Nr: 1307355 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-13 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for right knee arthritis. 2. Entitlement to service connection for left shoulder arthritis. 3. Entitlement to an initial compensable rating for bilateral hearing loss. 4. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to June 1946. He received the Combat Infantry Badge (CIB). This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia. In July 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In November 2012, the Board remanded the claims of service connection for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to higher initial ratings for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Right knee arthritis did not manifest in service or within one year of separation from active service, and current right knee arthritis is unrelated to service. 2. Left shoulder arthritis did not manifest in service or within one year of separation from active service, and current left shoulder arthritis is unrelated to service. CONCLUSIONS OF LAW 1. Right knee arthritis was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Left shoulder arthritis was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in November 2007 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. This case was most recently readjudicated in February 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the evidence is adequate to make a determination on the claims. In response to a request for the Veteran's service treatment records, the National Personnel Records Center indicated that the records were "fire-related" (i.e., destroyed or damaged by a fire at that facility in 1973). Copies of all available records were mailed; however, to the extent that some of these records may be missing, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). This, however, does not lower the threshold for an allowance of a claim, for example, where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service treatment records are missing, VA also has a duty to search alternate sources of records. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). Although the National Personnel Records Center indicated that the Veteran's service treatment records were fire-related, the RO obtained copies of his September 1944 entrance physical and, although the date is partially obscured, what appears to be appears to be a copy of his discharge physical in June 1946. The RO also obtained VA outpatient treatment records, his records from the Railroad Retirement Board, and all available records from identified private physicians. Furthermore, the Veteran stated that he fell into a trench and was treated in the field by a medic; therefore there is no record of such treatment. As will be explained below, pursuant to 38 U.S.C.A. § 1154(b), the Veteran's statements regarding his knee and shoulder injuries in service have been accepted as sufficient proof such injuries. Moreover, during the Board hearing, the undersigned asked questions designed to elicit information addressing each element of a claim of entitlement to service connection. This action supplemented VA's compliance with the Veterans' Claims Assistance Act (VCAA) and 38 C.F.R. § 3.103 (2012). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). For the purposes of this regulation, chronic diseases include only those diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, No. 2011-7184, 2013 WL 628429, at *6 (Fed. Cir. Feb. 21, 2013) Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran alleges that his current arthritis of the right knee and left shoulder resulted from injuries he sustained in service when he fell into a trench or foxhole. During the Board hearing, he testified that a medic determined that he had no broken bones, applied a brace to his right knee, and he mustered on. He said he continued to have problems with his right knee and left shoulder after service and that he received shots from time to time. At the outset, the Board notes that the Veteran received the Combat Infantry Badge, which signifies that he engaged in combat with the enemy. Therefore, he must be afforded the presumptions of 38 U.S.C.A. § 1154(b). Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat veterans, [VA] shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. See also 38 C.F.R. § 3.304 (2012). Hence, in this case, the Veteran's statements regarding the in-service injuries he sustained to his right knee and left shoulder are accepted. They are consistent with his service and the Board finds them credible. Furthermore, in light of the missing service treatment records, the Board has a duty to carefully consider and weigh such lay evidence. Although 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). Although portions of the Veteran's service treatment records appear to be missing, his September 1944 entrance examination shows that he had no musculoskeletal defects except a fracture to the right leg in 1941, which was not considered disabling. In October 1944, he complained of a burning sensation in the right leg; however, the examination was negative. The report of examination prior to discharge indicates that the Veteran did not have any musculoskeletal defects. The Veteran's records from the Railroad Retirement Board indicate he claimed disability with a primary diagnosis of peripheral vascular disease and a secondary diagnosis of degenerative arthritis. The alleged onset date was November 1984. A December 1984 statement notes that the Veteran was weak in his hands, arms, knees, etc., due to arthritis. In a January 1985 letter, Dr. Vaziri stated that the Veteran had been having pain in multiple joints for the past several years. He had a dull aching pain in most of the joints, mainly in both shoulders and the left foot. He had a Cortisone injection to the right knee in October 1984. X-rays of the right knee showed narrowing of the medial joint space and evidence of mild arthritic changes. The impression was mild degenerative arthritis of the right knee joint and arthralgia of multiple joints. A May 1987 private treatment record from Dr. Majestro reflects that the Veteran complained of pain in both knees over the last several years. The right knee was worse than the left knee. X-rays revealed degenerative arthritis of the right knee. In July 1998, he underwent total knee arthroplasty/replacement. A June 2007 VA outpatient treatment record reflects that the Veteran had a tender acromiclavicular joint; the assessment was bursitis of the left shoulder and he was given an injection with Depo Medrol. X-rays revealed degenerative arthritis of the left shoulder. A VA examination was conducted in June 2008. The Veteran reported that he fell in a trench with a machine gun on his back in March or April 1945. He was seen by a field medic but did not receive any other treatment. After clinical examinations and X-rays, the Veteran was diagnosed with degenerative joint disease of the left shoulder and severe degenerative joint disease of the right knee status post arthroplasty. The examiner opined that she could not determine whether the Veteran's current disabilities were related to military service without resorting to speculation. She explained that the Veteran's service medical records were incomplete and because of the length of time since service, it was impossible to make a determination. Another VA examination was conducted in January 2013. The Veteran's medical history was discussed, including the injuries he sustained when he fell into a trench during service. It was noted that the Veteran had degenerative joint disease of the left shoulder and right knee. The examiner opined that the Veteran's right knee and left shoulder conditions were "less likely than not" incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the knee and shoulder conditions were degenerative in nature and consistent with the normal aging process and not a fall in the 1940s. The examiner also explained that a chronic right knee and left shoulder condition was not shown in service and that the record did not show complaints of knee problems until 1987 and complaints of left shoulder problems until the 1990s. The Veteran also submitted a statement from a VA staff physician (Dr. K.S.) dated in June 2006. Dr. K.S. noted the Veteran's history regarding an in-service injury to his knee and opined that the injury "could very well have happened as described." In an October 2008 VA outpatient treatment record, Dr. M.B. also noted that he had known the Veteran for twenty years and had no reason to doubt the veracity of his history of war injuries. As noted above, the Veteran's injuries to his right knee and left shoulder falling into a trench during combat have been conceded. The Veteran is competent to report such injuries and the Board finds him to be credible. See 38 U.S.C.A. § 1154(b), Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The first medical record documenting right knee arthritis and shoulder pain was in January 1985 - over 39 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The present case involves not simply a lack of clinical evidence, but findings of no musculoskeletal defects at discharge and a time gap of nearly four decades. Here, arthritis of the right knee and left shoulder was not shown or noted in service or within one year of service. Therefore, the only remaining issue is whether there is a nexus between the Veteran's service and current right knee and left shoulder arthritis. In this case there is no competent evidence linking the Veteran's current arthritis to the injuries he sustained in service. The June 2008 VA examiner could not provide an opinion without resorting to speculation. The January 2013 VA examiner opined that the Veteran's current right knee and left shoulder arthritis was less likely than not related to service. The VA examiner further noted that the degenerative arthritis was consistent with the normal aging process and not a fall that occurred many years ago in service. As the VA examiner explained the reasons for her conclusion, which was based on examination findings, the Veteran's reported in-service injuries, and review of the claims file, this opinion is adequate for the adjudication of these claims and is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has considered the Veteran's lay contentions that his current right knee and left shoulder arthritis are related to injuries he sustained when he fell into a trench in service. To the extent that these assertions are being offered to establish a nexus with his military service, such evidence must fail. The Board finds that determining the etiology of his current arthritis is a complex medical matter beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship. Whether his arthritis is related to in-service injuries that occurred many years ago requires specialized training. As a lay person untrained in the medical field, the appellant is not competent to render an opinion on etiology in this case. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claims for service connection for right knee and left shoulder arthritis. Hence, the claims are denied. ORDER Service connection for right knee arthritis is denied. Service connection for left shoulder arthritis is denied. REMAND In a November 2012 rating decision, VA granted service connection and assigned a 10 percent rating for tinnitus and a noncompensable rating for hearing loss. In January 2013, the Veteran submitted a copy of the first page of the decision with a handwritten note indicating that he deserved more. The Board interprets this statement as a notice of disagreement with the disability ratings assigned in the November 2012 rating decision. The United States Court of Appeals for Veterans Claims has held that an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Issue the Veteran a statement of the case addressing the claims of entitlement to a compensable initial rating for bilateral hearing loss and an initial rating in excess of 10 percent for tinnitus. The appellant is hereby informed that the Board will exercise appellate jurisdiction over the claims only if he files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals 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. 2012). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs