Citation Nr: 1318561 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-48 658 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left shoulder disability REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his son-in-law ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1951 to June 1955. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 rating decision in which a VA special processing unit in Cleveland, Ohio, inter alia, denied the Veteran's claims for service connection for right knee disability and left shoulder disability. The Veteran timely perfected an appeal as to each claim. The RO in Portland, Oregon retained jurisdiction of the claims file, and that RO has certified the appeal to the Board. In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In July 2012, the Board, inter alia, remanded the instant claims to the Appeals Management Center (AMC), in Washington, DC, for additional development of the evidence. In addition, the Veteran's claims for service connection for bilateral hearing loss and tinnitus as well as service connection for basal cell carcinoma and squamous cell carcinoma were remanded to the AMC for additional development. In February 2013, the Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In March 2013, the RO, inter alia, granted the Veteran's claims for service connection for tinnitus and for bilateral hearing loss , as well as for basal cell carcinoma and squamous cell carcinoma. As the March 2013 decision represents a full grant of the benefits sought with respect to these issues, these matters are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). After completing the requested action in the Board's February 2013 remand, the AMC continued to deny the claims for service connection for a right knee disability and a left shoulder disability (as reflected in a January 2013 supplemental statement of the case (SSOC)), and returned these matters to the Board for further appellate consideration. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the claims on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Although service records document reports of, and treatment for, shoulder and right injury, these problems appear to have resolved during service. 3. A right knee disability was not shown in service or for many years thereafter, there is no competent, probative evidence even suggesting that there exists a medical relationship, or nexus, between any such disability and in-service injury or disease, and there are no credible lay assertions of a continuity of right knee symptoms during and since service. 3. A left shoulder disability was not shown in service or for many years thereafter, and there is no competent, probative evidence even suggesting that there exists a medical relationship, or nexus, between any such disability and there are no credible lay assertions of a continuity of left shoulder symptoms during and since service.. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in pre-rating letters dated in August 2009 and October 2009, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The August 2009 and October 2009 letters provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The January 2010 RO rating decision reflects the initial adjudication of the claims after issuance of the August 2009 and October 2009 letters. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records. In an October 2012 Memorandum, the RO made a formal finding of unavailability as to the Veteran's Social Security Administration (SSA) records, which were requested pursuant to the Board's July 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also of record and considered in connection with the appeal is the transcript of the Board hearing, along with various written statements provided by the Veteran, and by his wife and representative, on his behalf. The Board points out that that the Veteran was provided the opportunity to orally set forth his contentions during his hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the June 2012 hearing, the undersigned enumerated the issues on appeal. The Veteran provided testimony regarding his in-service shoulder and knee injuries, and the current nature of his claimed disabilities, to include their post-service manifestations. The hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the undersigned pertaining to the Veteran's current treatment and the bases for denial of the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. As indicated, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, including arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology, alone (in lieu of a medical nexus opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that his right knee disability is related to a knee injury he sustained in September 1954 while changing a tire. In addition, he contends that his left shoulder disability is the result of the same May 1954 fall in which he injured his shoulder. Service treatment records document complaints of a shoulder injury, which was determined to be subacromial bursitis, following a fall in May 1954. In September 1954, the Veteran reported sustaining a traumatic force to his right knee cap as a result of a tire blow-out and no fracture was found on a subsequent X-ray. A June 1955 service discharge examination found the Veteran's upper extremities and lower extremities to be normal and was otherwise negative for any relevant abnormalities. In an accompanying June 1955 Report of Medical History (RMH), the Veteran denied a "trick" or locked knee as well as a painful or "trick" shoulder. Post-service treatment records include the report of a February 2005 VA left shoulder VA X-ray, which revealed mild degenerative changes and a small calcification adjacent to the greater tuberosity, compatible with calcific peritendinitis. An August 2007 VA left shoulder X-ray revealed early degenerative joint changes while an August 2007 VA right knee X-ray was interpreted . In a June 2009 statement, the Veteran's wife indicated that she had known the Veteran since 1948, and that they were married in May 1952. She stated that, after service, he very seldom went to doctors as he had no insurance and did not take time away from work for economic reasons. He had complained that his shoulder condition made it difficult for him to lift anything without help after service and that his knee condition made it difficult to walk any distance. The report of an October 2009 VA orthopedic examination reflects that the Veteran reported that he fell on his shoulder during service, but was unable to furnish many details. Following a physical examination and a review of the Veteran's claims file, diagnostic assessments of left shoulder functional subacromial bursitis, rotator cuff (RC) tendonitis, age-typical graft-host junction (GHJ) and acromioclavicular joint (ACJ) degenerative joint disease, as well as right knee functional mild periarticular soft tissue strain, iliotibial band syndrome (ITB) and patella tendinitis were made. The examiner expressed that he was unable to determine if the Veteran's in-service shoulder or knee problems were caused or related to his present shoulder or knee problems without resorting to mere speculation, as there was no convincing historically adequate detail documented or musculoskeletal trauma data available to substantiate the claims. The examiner noted that the Veteran's service treatment records were brief and difficult to read, with no entry found from a qualified orthopedist, and only contained a brief note from a transient medical provider in a military setting where the prime objective was to return the seaman back to duty as soon as possible. The examiner further opined that given the vast unknowable musculoskeletal wear and tear from the Veteran's past general health and lifestyle behaviors, unknowable vocational and environmental influences and hazards including obscure disease processes such as diabetes mellitus that can cause joint pain or degenerative joint disease, typical hereditary and/or aging musculoskeletal processes, being overweight and a history of overuse, it was simply not possible to make a scientifically accurate determination regarding causation, relationships, etiology or origins without resorting to mere speculation, supposition and a significant amount of guess-work. During the June 2012 Board hearing, the Veteran testified that he experienced left shoulder pain after service but did not seek ongoing treatment or have ongoing complaints. He also indicated that he did not have many problems with his knee. The Veteran's son-in-law testified that the Veteran had been diagnosed with a right knee disorder. The VA examiner's comments clearly were consistent with, and based on full consideration of, the evidence of record. Notwithstanding the Veteran's documented left shoulder and right knee injuries, the Veteran's service discharge examination reflects that his upper and lower extremities were the found to be normal. With respect to post-service medical records, the first documented evidence of left shoulder disability was in the report of a February 2005 VA X-ray, whereas the first documented evidence of a right knee disability was in the report of an August 2007 VA X-ray. As noted above, there is nothing in the Veteran's service records to indicate that arthritis had its onset during service or shortly after service. Rather, the first medical evidence of such disability was in 2005 for his left shoulder and 2007 for his right knee, approximately 50 plus years after the Veteran separated from service. The Board points out that 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 for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). As for the October 2009 VA examiner's comments, generally, the Board cannot rely on an examiner's conclusion that an opinion would be speculative unless there is an explanation for such opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Here, the VA examiner discussed, in his report, why no etiological opinion was possible in this case. Specifically, the examiner noted that the Veteran's service treatment records did not contain adequate detail about his musculoskeletal traumas, did not contain findings from a qualified orthopedist and only contained notations from a transient medical provider whose prime objective was to return the seaman back to duty as soon as possible. The examiner further noted there were many other factors, including the Veteran's general health, lifestyle behaviors and vocational hazards, which rendered it impossible to make a scientifically accurate determination regarding etiology of the claimed conditions. Given the explanation provided by the VA examiner, and the fact that the examiner clearly considered all relevant evidence and facts, the Board finds that the October 2009 VA examination report, with the examiner's comments on the medical etiology questions pertinent to these claims, provides an adequate basis for consideration of issues of whether the Veteran's left shoulder disability and/or right knee disability is/are medically to service. The Board points out that these comments cannot be construed as an actual medical opinion weighing either for or against these claims (see Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009)), and that, as noted above, there is no reason for the Board to further attempt to obtain a medical opinion in connection with either claim. Significantly, neither the Veteran nor his representative has presented or identified a medical opinion that supports either claim. In short, there simply is no competent, probative evidence to support a finding that there exists a medical relationship between either of the claimed disabilities and the Veteran's service, as alleged. As for the lay evidence of record, the Board notes that the Veteran has, on occasion, alleged a continuity of symptomology with regards to his left shoulder disorder and right knee disorder, which he is competent to assert. However, he has not been consistent in his assertions regarding the onset and presence of chronic left shoulder and right knee problems. The Veteran specifically denied experiencing a trick" or locked knee as well as a painful or "trick" shoulder in his June 1955 discharge RMH. In addition, during the June 2012 hearing, the Veteran testified that he did not have ongoing complaints related to his shoulder after service. In light of these contradictory statements, the Board finds that any current assertions as to experiencing left shoulder or and right knee problems continuously since service service, advanced in furtherance of the appeal, are deemed not credible. Furthermore, as for any direct assertions by the Veteran, his spouse and/or his representative that there exists a medical relationship between the Veteran's left shoulder disability or right knee disability and service, the Board finds that no such assertions provide persuasive evidence in support of either claim. The matter of the etiology of the complex medical disabilities here at issue is a matter within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the identified individuals is shown to be other than a layperson without appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion the medical matter upon which each claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claims for service connection for right knee disability and left shoulder disability must be denied. In reaching the conclusion to deny these claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible, and probative evidence supports either claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for right knee disability is denied. Service connection for left shoulder disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs