Citation Nr: 1322522 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-01 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for an acquired psychiatric disorder. 7. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from November 1940 to December 1945, and from August 1950 to September 1951. He also had subsequent service in the reserves. These matters came before the Board of Veterans' Appeals (Board) on appeal from August 2008 and April 2009 rating decisions of the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico. The Board remanded the Veteran's claims in July 2012 and February 2013. 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 service connection for an acquired psychiatric disorder and TDIU 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. A current bilateral shoulder disability is not the result of a disease or injury during active service, and arthritis was not shown in service or to a compensable degree within one year after separation from service. 2. A current bilateral knee disability is not the result of a disease or injury during active service, and arthritis was not shown in service or to a compensable degree within one year after separation from service. 3. A current back disability is not the result of a disease or injury during active service, and arthritis was not shown in service or to a compensable degree within one year after separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 5. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in December 2007 and February 2008. The claims were subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. Moreover, the Veteran was afforded VA examinations. As the reports are based on consideration of the prior medical history and described the disabilities in sufficient detail so that the Board's review of the claims is a fully informed one, the medical examinations are adequate. Stefl v. Nicholoson, 21 Vet. App. 120, 123 (2007). In notifying the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left shoulder, right shoulder, left knee, right knee, and back symptomatology, obtaining relevant VA treatment records, contacting the Veteran to clarify if he underwent physical therapy in 1950 or 1951 for degenerative arthritis, and obtaining a clarifying VA examination opinion, there was compliance with the February 2013 remand directive inasmuch as there is now sufficient information and evidence to adjudicate the issues. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the United States Court of Appeals for Veterans Claims (Court) or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). The RO later issued a Supplemental Statement of the Case in April 2013. Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal decided herein is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159 Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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). Indeed, 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). Moreover, 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). 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 Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence of record includes a November 1940 Physical Examination at Place of Enlistment that reflects that the General Examination was normal. A November 1945 Report of Physical Examination of Enlisted Personnel reflects that the Veteran had no musculoskeletal defects. An August 1950 Report of Medical Examination reflects that no significant abnormality was noted for the spine and extremities. May 1951 records show the Veteran was seen for neuritis type of pain in the shoulder, arms and legs, and in June 1951, he was seen for pain in the legs. The service separation examination dated in September 1951 noted a history of rheumatic pains of both lower extremities, but there was no arthritis, swelling or deformities of the joints. There were no abnormal findings related to the spine or the lower extremities, and the only abnormality of the upper extremities was associated with the Veteran's right hand metacarpal fracture, for which service connection was established. In connection with the Veteran's right hand claim, he was examined for VA purposes in May 1952. In pertinent part, the report from this examination indicated that the Veteran mentioned "vaguely described sensations around the knees." There were no complaints expressed with respect to the shoulder and back. Examination showed no abnormal physical signs around the knee, normal knee motion, no crepitation, nor any redness, swelling, spasm, abnormal fullness, masses or abnormal mobility. The examiner specifically concluded there was no arthritis or rheumatism in the knees. This is strong evidence that as of May 1952, there was no disability present in the claimed joints. Nine years later, in August 1961, the Veteran complained of left shoulder peritendinitis which had its onset 6 days earlier, (but he did not complain of right shoulder, back or knee pain). Another 6 years after that, in August 1967, the records show the Veteran was seen for right shoulder and knee complaints (but not left shoulder or back). Private records dated in 1980 and 1981, show the Veteran was diagnosed to have arthritis of the spine and at the same time the Veteran reported in a disability retirement form that he had arthritis of the back and legs since 1950. VA records in 2008 confirm the presence of bilateral knee arthritis. In connection with this appeal, the Veteran submitted a 2007 statement from a physician who recalled having worked with the Veteran in 1950 and 1951, and that during this time the Veteran took time off for physical therapy for arthritis of the legs, knees, shoulders and hands. In August 2012, the Veteran was examined for VA purposes in connection with this appeal. Although current disabilities were identified, the examiner, who had reviewed the Veteran's history outlined above, concluded none had its onset in service. In a March 2013 addendum, it was affirmatively stated there was no indication in the record that the Veteran had osteoarthritis during service, or that had started during service. Rather, the claimed disabilities were attributed to the aging process. The Board finds that service connection is not warranted. While the Veteran complained of rheumatic pains of both lower extremities at the separation examination, no arthritis, swelling or deformities of the joints was found, and the Veteran's lower extremities and spine were clinically evaluated as normal. Likewise, no shoulder disability was identified at that time. Thereafter, there is no record of relevant complaints for years and the most probative evidence fails to link the subsequently diagnosed disabilities to service. The Board assigns little probative weight to the October 2007 statement from the physician who worked with the Veteran in the early 1950s. It is a memory which is more than half a century old, which alone, raises questions about its precision. In addition, it does not square with the other evidence of record which did not show any arthritis in the legs, knees or shoulders. Indeed, the other evidence, which consists of medical records from the time, show that arthritis was essentially ruled out in 1952. These contemporaneous medical records are considered a more reliable indication of the Veteran's state of health at that time, than the memory of someone else from 50+ years later. This 2007 statement obviously also does not constitute evidence of persistent recurrent symptoms of the claimed disorders because it only speaks to the 1950 and 1951 time period, and not thereafter. Thus this statement is minimally probative. The Board concludes that the Veteran's contention of having left and right shoulder, left and right knee, and back conditions continuously since service is not credible. This is because it is essentially contradicted by the treatment records from this period, which instead show complaints of only particular joints, and not the others. Indeed, when seen for shoulder complaints in 1961, the Veteran reported the onset as occurring only 6 days earlier. It is reasonable to infer that if all of these joints had been a source of discomfort since service, the medical records showing joint complaints would include complaints relating to all of those claimed, and would not date the onset to a time after service. To the extent that the Veteran himself believes that there is a nexus between left and right shoulder, left and right knee, and back disorders and service, as a lay person, he is not competent to opine on matters requiring medical expertise, such as the etiology of left and right shoulder, left and right knee, and back disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the most probative evidence addressing whether there is a relationship between the claimed disabilities and service is the opinion of the 2012/2013 VA examiner, who after reviewing the record, found no indication of arthritis in service or having started in service, but instead related the Veteran's condition to the aging process. This opinion was fully informed, clear and consistent with the medical evidence of record. As such, the Board considers it to carry the most evidentiary weight and as it is against the claim, service connection for left and right shoulder, left and right knee, and back disorders is denied. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the 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 a left shoulder disability is denied. Service connection for a right shoulder disability is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a back disability is denied. REMAND Regarding the psychiatric disorder issue, the Veteran underwent a VA psychiatric examination in August 2012, with March 2013 addendum opinion, at which no psychiatric diagnosis was found. In this regard, the examiner noted that the Veteran was seen by a primary physician in December 2010 and the primary physician mentioned depression. The March 2013 examiner, however, opined that this did not constitute a formal mental disorder. As a consequence, this examiner did not enter any opinion as to whether any service connected disabilities had caused or aggravated a psychiatric disorder, as had been requested in the Board's 2013 Remand. It must be observed, however, that VA treatment records dated in November 2012 and January 2013 from the San Juan VA Medical Center reflect that the Veteran was given an Axis I diagnosis of depressive disorder not otherwise specified. The March 2013 VA examination opinion should be supplemented on remand, to account for these entries as to allow a fully informed evaluation of the acquired psychiatric claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Because the adjudication of the acquired psychiatric claim could greatly affect the Veteran's claim for a TDIU, a decision on the TDIU claim must be deferred. Accordingly, the case is REMANDED for the following actions: (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.) 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service acquired psychiatric symptomatology and how they may be linked to his service connected disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain relevant VA treatment records from the San Juan VA Medical Center and associated clinics, dating since March 2013. 3. Following the completion of the development above to the extent possible, return the claims file to the March 2013 VA psychiatric examiner, if available. If this examiner is not available, arrange for the opinion to be provided by another. If a new examination is deemed necessary, one should be scheduled. Following review of the claims folder and relevant electronic VA treatment records, the examiner should note the VA treatment records dated in November 2012 and January 2013 from the San Juan VA Medical Center reflecting an Axis I diagnosis of depressive disorder not otherwise specified, and provide an addendum to the March 2013 examination report as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran has a psychiatric disability that was caused or aggravated by the Veteran's service-connected bronchial asthma, COPD, or sinusitis? The examiner is informed that aggravation is defined for this purpose as a chronic worsening of the underlying condition, versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of psychiatric disability present (i.e., a baseline) before the onset of the aggravation. If the examiner must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond. The examiner is also requested to provide a rationale for any opinion expressed. 4. Thereafter, the remaining claims on appeal should be re-adjudicated. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case. After an opportunity to respond has been provided the Veteran, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs