Citation Nr: 1319335 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-17 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1987 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In an April 2008 notice of disagreement, the Veteran initiated appeals on the issues of service connection for a bilateral heel disability, a bilateral shoulder disability, a bilateral knee disability, a bilateral ankle disability, and sleep apnea. In February 2009, the RO fully granted service connection for left shoulder acromioclavicular arthropathy with impingement, right ankle sprains, left ankle sprains, and obstructive sleep apnea; therefore, those issues are not in appellate status and are not before the Board. The Veteran did not perfect the appeal of a bilateral heel disability; therefore, that issue is also not in appellate status, and is not before the Board. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran experienced bilateral knee pain in service. 2. The Veteran does not have a currently diagnosed bilateral knee disability. 3. The Veteran sustained a right shoulder sprain in service. 4. The Veteran does not have a currently diagnosed right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely letter dated in September 2007, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The September 2007 notice letter did not address the elements of degree of disability and effective date; however, for reasons explained below, the Veteran's claims are being denied and no disability rating or effective date will be assigned, so the elements of rating and effective date are not reached. In consideration of the foregoing, the Board finds that the VCAA notice requirements were adequately satisfied prior to the initial denial of the claims, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issues adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, a VA examination from October 2007, and the Veteran's statements. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA findings obtained in this case are adequate. Specifically, the VA findings provided in the October 2007 VA examination report consider all of the pertinent evidence of record, to include a comprehensive physical examination of the Veteran and his statements. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran is not shown to have a currently diagnosed bilateral knee or right shoulder disability; therefore, 38 C.F.R. § 3.303(b) does not apply, as the questions of nexus to service are not reached. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Bilateral Knee Disability and a Right Shoulder Disability The Veteran contends that he sustained a bilateral knee and right shoulder injury in service, and that his bilateral knees and right shoulder have bothered him since those injuries. Preliminarily, the Board notes that the Veteran repeatedly complained of bilateral knee pain in service. A service treatment record from July 16, 2004 indicated that the Veteran had knee pain for more than two years. At that time, he was assessed with knee pain and referred to orthopedics. In a service treatment record from July 27, 2004, the Veteran again complained of bilateral knee pain and reported that the pain was present for four years. Upon physical examination, the Veteran had full range of motion in each knee and mild tenderness to palpation at the medial joint line bilaterally without erythema, edema, ecchymosis, or effusion. Both knees were stable to varus and valgus stress. Test results for anterior and posterior drawer, Lachman, and McMurray were negative. X-ray results of the knees revealed essentially normal knees with no significant degenerative changes. He was assessed with chronic anterior knee pain. In September 2004, the Veteran a history of bilateral knee pain for 13 years, and was assessed with bilateral medial knee plica. In the separation report of medical examination from June 2007, chronic knee pain was noted; however, the Veteran had a normal clinical evaluation of the lower extremities. The Board also notes that an October 2000 service treatment record indicated muscle insertion pain at the base of the clavicle. Another record from November 2000 indicated the Veteran's complaint of tight shoulder pain and decreased range of motion. In February 2006, the Veteran complained of right shoulder pain that had been present for two weeks. At that time, he had good range of motion and good strength. He was assessed with a resolving shoulder sprain. While the Veteran reported painful shoulder, elbow, or wrist upon separation examination in June 2007, he did not specify which joint was painful. Indeed, the separation report of medical examination from June 2007 revealed a normal clinical evaluation of the upper extremities. After a review of all the lay and medical evidence of record, the Board finds that, while the Veteran experienced knee pain in service and sustained a right shoulder sprain in service, the weight of the evidence is against the finding that the Veteran currently has a diagnosed left or right knee disability or right shoulder disability. Evidence against the Veteran's claims includes the October 2007 VA examination report, which reflects no knee or right shoulder abnormalities were found. At the VA examination, the Veteran reported that if he has prolonged standing greater than half an hour, he would have burning inside the knee at the kneecap area. He also reported that he used to be able to run five miles every day, but now was only able to run two miles every other day. Upon physical evaluation, the examiner concluded that the Veteran had a normal clinical examination of the bilateral knees. X-ray results of the left knee revealed no evidence of acute bony abnormality or focal bony lesion. There was no significant effusion and soft tissues were unremarkable. X-ray results of the right knee revealed maintenance of normal-appearing joint spaces. There was no evidence of effusion and soft tissues were unremarkable. The interpreting VA staff physician ultimately found no significant radiographic abnormality pertaining to the bilateral knees. With regard to the right shoulder, during the October 2007 VA examination (conducted just days prior to service separation), the Veteran reported that he currently had no right shoulder symptoms. This contemporaneous statement to service contrasts with his later, March 2009 statement that the right shoulder continued to bother him since injuring it in service. See March 2009 Substantive Appeal. Upon physical evaluation, the examiner concluded that the Veteran had a normal clinical examination of the shoulders. X-ray results of the right shoulder revealed anatomic alignment of the bones and no evidence of fracture. The upper right hemithorax and soft tissues were unremarkable. The interpreting staff physician ultimately found no significant radiographic abnormality pertaining to the bilateral shoulders. While the Veteran has complained of pain associated with the knees and to the extent that the Veteran's recent, general assertions of right shoulder pain can be interpreted as assertions that he has had right shoulder symptoms since separation from service in October 2007, he is competent to report any symptoms that come to him through the senses; however, pain is a symptom and not a diagnosed disability. The Veteran lacks the requisite medical expertise to attribute any bilateral knee pain or right shoulder pain he experiences to a diagnosed disability involving the knees or right shoulder. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Therefore, the Veteran's assessment as to whether he has current disabilities of the knees and right shoulder is afforded far less probative value than the medical evidence showing no current disability of the knees or right shoulder. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The term "disability" is defined as a disease, injury, or physical or mental defect. See Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record shows no diagnosis of the claimed disabilities, as is the case here, that holding would not apply. For these reasons, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a bilateral knee disability and a right shoulder disability, and the claims must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Service connection for a bilateral knee disability is denied. Service connection for a right shoulder disability is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs