Citation Nr: 1322969 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-29 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for arthritis of the left shoulder. 3. Entitlement to service connection for residuals of a right knee injury, to include arthritis and lateral hamstring tendonitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service from August 1986 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board remanded this matter for additional development in May 2011, including affording the Veteran a VA examination. As explained further in this decision, the Board finds that there has been substantial compliance with its May 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271. FINDINGS OF FACT 1. The Veteran sustained an injury of both shoulders in service doing parachute jumps. 2. Symptoms of a left shoulder disorder were not chronic in service. 3. Arthritis of the left shoulder did not manifest to a compensable degree within one year of separation from service in August 1989, and the Veteran does not have arthritis of the right shoulder, including within one year of separation from service. 4. Symptoms of a left shoulder disorder have not been continuous since service separation. 5. The Veteran's currently diagnosed left shoulder arthrosis is not related to active service. 6. The Veteran does not have a current right shoulder disability. 7. The Veteran sustained a right knee injury in service. 8. The Veteran has a current right knee disability of right knee lateral hamstring tendonitis. 9. The Veteran does not currently have arthritis of the right knee. 10. The currently diagnosed right knee disorder is not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for a left shoulder disorder, including arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). 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. A November 2005 letter provided the Veteran with notice of the evidence required to substantiate the claims for service connection for a right knee disorder and bilateral shoulder disorder. The November 2005 letter informed the Veteran of the information and evidence needed to substantiate claims for service connection and notified him of what information and evidence must be submitted by him and what information and evidence VA would obtain. In an October 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claims for service connection, which included provisions for disability ratings and effective dates. With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service private treatment records, and the Veteran's statements. The Veteran was afforded a VA examination of his right knee in December 2005. In the May 2011 remand, the Board found that December 2005 VA examination contained factual inaccuracies and that a remand was required to obtain an adequate opinion. The Board remanded this case in May 2011 in order to afford the Veteran a VA examination of his shoulders and the right knee. See 38 C.F.R. § 3.159(c)(4). The Veteran was notified and was scheduled for a VA examination in July 2011. He failed to report to this examination. To date, the Veteran has not shown good cause for his failure to report to the scheduled VA examination. Because of the failure to report and participate in the examination of the right knee and shoulders, VA was unable to develop potentially favorable evidence of current right shoulder disability or medical nexus opinion relating a current right knee disability to the in-service injury. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not always a one-way street, or a blind alley, and that a veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim). For these reasons, including the failure to participate in the VA examination, the Board finds that no further action is necessary to meet the requirements of the VCAA, and the Board will decide the claim based on the evidence that is of record. See 38 C.F.R. § 3.655 (2012). Therefore, the Board will proceed to review and decide the claims based on the evidence that is of record. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 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. § 1131; 38 C.F.R. § 3.303(a). 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). 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 of 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). Right knee tendonitis is not a "chronic disease" listed under § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection for a right knee disorder. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran does not have a right shoulder disability, including arthritis, so the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply to the claim for service connection for a right shoulder disorder. Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim for service connection for a left shoulder disorder. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, became manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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 that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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, 21 Vet. App. 303 ("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 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, 7 Vet. App. at 39-40 (1994); Gilbert, 1 Vet. App. at 57. Service Connection for Right and Left Shoulder Disorders The Veteran asserts that he has current right and left shoulder disorders, and that these are related to parachute jumps and marches he performed in service. The Veteran asserts that he injured his shoulders in parachute jumps as a result of stress induced by a parachute harness on his upper body. The Veteran has stated that parachute landings required him to absorb shock in his shoulders. The Veteran also contends that he experienced a fall during a landing, in which he fractured his nose, and that he injured his shoulders in the fall. In his written statements, the Veteran alleged that he participated in road marches and field exercises in which he had to carry heavy rucksacks on rough and uneven terrain, which put stress on his shoulders. After a review of all of the evidence, lay and medical, the Board finds that the Veteran sustained injuries of the right and left shoulders during service. The DD Form 214 indicates that the Veteran was awarded a parachute badge. The Veteran is competent to report that he experienced stress from a parachute harness and upon landing jumps. Given the competent and credible evidence of the Veteran's participation in parachute jumps in service, the Board finds that there is competent evidence of injuries to the right and left shoulders during service. The Board finds that symptoms of a left shoulder disorder were not chronic in service. The service treatment records are negative for any complaints, treatment, or diagnoses of a left shoulder disorder. Service treatment records reflect complaints for other disorders including low back pain, a broken nose, headaches, left foot strain, left knee pain, and food poisoning. The absence of any complaints of left shoulder symptoms or treatment of a left shoulder disorder in service weighs against a finding that symptoms of a left shoulder disorder were chronic in service. In this case, the service treatment records are complete. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in an otherwise complete medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record (citing Fed. R. Evid. 803 (7)). As it is not shown that a left shoulder symptoms were chronic in service, the requirements for presumptive service connection based upon a chronic symptoms in service are not met. § 3.303(b). Arthritis of the left shoulder did not manifest to a compensable degree within one year of service separation in August 1989. An initial post-service diagnosis of arthritis of the left shoulder is shown in July 2005, which is almost 16 years after service separation. As findings or a diagnosis of arthritis of the left shoulder is not shown within one year of separation in August 1989, there is no basis for presumptive service connection for arthritis of the left shoulder as a chronic disease manifesting to a compensable degree within one year of service separation. 38 C.F.R. §§ 3.307, 3.309. The Board further finds that the weight of the evidence demonstrates that symptoms of a left shoulder disorder have not been continuous since separation from service. The Veteran has not even specifically alleged continuous left shoulder symptoms since service. In his claim, the Veteran indicated that he began to experience shoulder symptoms in the years since his separation from service. In addition, following separation from service in August 1989, the evidence of record shows no complaints, diagnosis, or treatment of a left shoulder disorder until July 2005. The absence of post-service findings, diagnosis, or treatment for over 16 years after service is one factor that tends to weigh against a findings of either a chronic left shoulder disorder in service or continuous left shoulder symptoms after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining the credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility mere because it is unaccompanied by contemporaneous medical evidence. The Board notes that the Veteran previously filed a claim for service connection for hearing loss in August 1989 and a claim for service connection for residuals of nasal fracture in October 1990. Because the Veteran filed previous service connection claims in August 1989 and October 1990 which did not mention a shoulder disorder of either shoulder, this suggests that there was no pertinent left or right shoulder symptomatology at that time of those claims. As continuity of left shoulder arthritis symptomatology since separation from service has not shown, service connection is not presumed under 38 C.F.R. § 3.303(b) based upon continuous left shoulder symptoms since service. The Board finds that the weight of the evidence also demonstrates that a current left shoulder disability, diagnosed as arthrosis (a form of arthritis) is not related to service. A July 2005 private orthopedic treatment record reflects that the Veteran was seen for a post-operative examination of his left shoulder two weeks after shoulder arthroscopy for acromonioplasty and labral repair as well as debridement of significant arthrosis of the joint. The July 2005 private treatment report indicated that the Veteran reported a history of jumping out of planes in service and wondered if some of his shoulder problems were associated with this aggressive activity, both training and jumping out of airplanes. The July 2005 treatment report reflects that the private physician explained to the Veteran that there might be an association, but to the extent that his shoulder problems are completely involved with that activity, it would be difficult to discern. The physician stated that there "may be an association between the amount of arthrosis within the joint and these activities." The language of the July 2005 private physician's purported opinion, that an association to service "may" exist, is not stated in terms of any degree of certainty or probability. Considering the context in which the opinion is rendered, at the July 2005 examination, the Veteran did not report to the examiner a history of continuous symptoms of the shoulders since service; what he reported was only his own speculation as to whether the shoulder problems he now had might be associated with in-service parachute jumps. Notably, this history given by the Veteran was first mentioned to the private examiner during a post-operative follow up visit with the doctor, one month prior to the Veteran filing his claim for VA compensation, rather than as part of a pre-operative history regarding shoulder injury(ies) and history of symptoms. Considered in its full context, and considering the speculative language used ("may be [ ] association"), the Board finds that the purported July 2005 medical opinion lacks probative value because it is a statement of mere possibility and not probability. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that the veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician's opinion that service "could have" precipitated a disability found too speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). There is no other medical opinion of record addressing the etiology of a left shoulder disability. The claims file contains no other competent medical evidence addressing the relationship between a left shoulder disorder and service. The other VA examinations of record include a November 2004 VA examination, which addressed hearing loss and a December 2005 VA examination which addressed the Veteran's right knee disability. As the Veteran failed to report for the VA examination of his shoulders scheduled in July 2011, no diagnosis of right shoulder disability could be rendered, and an opinion regarding the etiology of the left shoulder arthritis could not be provided. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a current right shoulder disability. The July 2005 private orthopedic treatment record pertains to the left shoulder. There is no evidence during the appeal period of a diagnosis or treatment for a right shoulder disability. A present disability is a prerequisite to the granting of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, service connection for the claimed right shoulder disability must be denied. Id. For these reasons, the Board finds that the lay and medical evidence of record weight against the claim for right and left shoulder disorder, including the diagnosed left shoulder arthritis, either as incurred in service or presumed to have been incurred in service. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Residuals of Right Knee Injury The Veteran asserts that he sustained injuries of his right knee in parachute landings and road marches in service, and that his current right knee disability is a residual of his in-service injuries. After a review of all of the evidence, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran sustained a right knee injury during service. The Veteran is competent to report that road marches and parachute jumps caused stress on his right knee, which he now asserts. Service treatment records reflect complaints of left knee pain in October 1988, though no notation of right knee injury or symptoms. The service treatment records are negative for any complaints, treatment, or diagnoses of a right knee disorder, and the Veteran did not undergo a service separation examination. In addition, at a VA examination in December 2005 the Veteran reported a history of an injury to the right knee in a parachuting exercise, but also reported that at the time he fell and twisted and had a fracture of the right foot he did not notice a knee injury. Resolving reasonable doubt on this question, notwithstanding the absence of any indication of even symptoms of the right knee during service, the Board finds that the Veteran sustained a right knee injury during service. The Board finds that the Veteran has a current diagnosis of lateral hamstring tendonitis of the right knee. The December 2005 VA examiner diagnosed tendonitis of the biceps hamstring tendon on the lateral side. The Board finds that the weight of the evidence demonstrates that a current right knee disability is not related to service. A private orthopedic treatment record dated in July 2005 reflects that the Veteran reported trouble with his knees because of a history of jumping out of planes in service. The private orthopedic doctor did not provide an opinion about the etiology of a current right knee disability, but merely recorded the Veteran's reported history of knee trouble. Mere transcription of the lay history provided by the Veteran does not become competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon inaccurate facts is not probative). A report of a VA examination dated in December 2005 reflects the Veteran's history of injury to the right knee in service with continued knee pain over the prior eight to ten years. An x-ray of the knee completed in conjunction with the December 2005 VA examination indicated that there was no significant abnormality identified. The December 2005 VA examiner diagnosed tendonitis of the biceps hamstring tendon on the lateral side. The VA examiner opined that, because these symptoms began while the Veteran was in service, this is a service-connected issue. Having reviewed and considered all the other evidence of record, the Board finds that the December 2005 VA medical opinion was based on inaccurate factual assumptions. The VA examiner indicated that the Veteran fractured his right foot during a parachute landing and assumed the Veteran injured his right knee at that time but did not report it. Service treatment records reflect that the Veteran was diagnosed with left foot tendonitis in November 1988 after playing football. The December 2005 medical opinion was explicitly based on inaccurate factual assumption of a right foot fracture, which is inconsistent with the evidence of record. An opinion based on such determinative factual inaccuracies of in-service injuries is of minimal probative value. Reonal, 5 Vet. App. at 461 (1993). The claims file contains no other competent medical evidence addressing the relationship between a current right knee disorder and service. The Veteran failed to appear for a VA examination of the right knee which was scheduled in July 2011; therefore, VA was unable to create a medical opinion relating the current right knee disability to any in-service right knee injury. For these reasons, the Board finds that the lay and medical evidence of record weighs against the claim for residuals of a right knee injury. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a right shoulder disorder is denied. Service connection for arthritis of the left shoulder is denied. Service connection for a right knee disorder is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs