Citation Nr: 1323609 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-41 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to an effective date earlier than May 21, 2007 for service-connected left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1958 to July 1962. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which declined to reopen the Veteran's claim for service connection for a back disability, and additionally denied his claims for service connection for a bilateral knee disability and a bilateral shoulder disability. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in October 2010. A transcript of this hearing has been associated with the Veteran's claims folder. In a May 2011 remand, the Board reopened the Veteran's claim for service connection for a back disability, and remanded all issues for further development. In January 2013, the Board granted service connection for a left shoulder disability and remanded the issues of service connection for a lumbar spine disability, a right shoulder disability and a bilateral knee disability. The issue of entitlement to an effective date earlier than May 21, 2007 for service-connected left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A lumbar spine disability was not manifest in service, was not manifest within one year of separation and is not related to service. 2. A bilateral knee disability was not manifest in service, was not manifest within one year of separation and is not related to service. 3. A right shoulder disability was not manifest in service, was not manifest within one year of separation and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in a June 2007 letter, prior to the date of the issuance of the appealed December 2007 rating decision. The June 2007 letter explained what information and evidence was needed to substantiate a claim 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 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of June 1990, June 2011 and February 2013 VA examinations. In a March 2013 correspondence, the Veteran contended that the February 2013 VA examiner did not evaluate his claimed disabilities accurately or adequately and thus, a new examination was needed. The Veteran noted various "inaccuracies, omissions and illogical conclusions" in the February 2013 VA examination. While the Board notes the Veteran's contentions regarding the adequacy of his February 2013 VA examination, the Veteran gave an accurate history regarding the disabilities at issue during the examination and recounted his relevant symptomatology for the disabilities. After receiving this information, the examiner performed a thorough physical and conducted necessary diagnostic tests related to the Veteran's disabilities. The examiner documented these actions in detail in his examination report. As such, the Board finds that the February 2013 VA examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Records from the Social Security Administration (SSA) were requested and in a May 2011 response SSA indicated that no records existed. In a March 2012 memorandum, the Appeals Management Center (AMC) made a formal finding that records from SSA were unavailable for review. In making a formal finding regarding the unavailability of those records, the AMC noted that all efforts to obtain the information had been exhausted and that any further efforts to obtain the information would be futile. In November 2012, the Veteran submitted a Benefits Planning Query from SSA that has been associated with the claims file. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he has a current lumbar spine, right shoulder and bilateral knee disabilities that were incurred in service. His service treatment records reveal that in July 1958 he presented with complaints of a sore left shoulder and in November 1961, he was diagnosed with a sprained right groin. His service treatment records however are negative for complaints, treatments or diagnoses pertaining to a bilateral knee, right shoulder or low back disability. Notably, the Veteran's June 1962 separation examination and January 1963 reassignment examinations were negative for complaints or diagnoses related to his knees, right shoulder or back. The Veteran underwent a VA examination in June 1990. He presented with complaints of back pain and back spasms that he reported began in the 1960s. He claimed that he hurt his back as a result of playing football and basketball for the Navy. He specifically referenced hurting his back in 1960 while playing basketball as he pulled a muscle. The diagnosis was history of repeated trauma, low back, secondary to athletics with findings now indicative of degenerative arthritis with straightening and limitation of range of motion as the principal findings. The Veteran also had crepitance of both knees with history of repeated trauma and a history of dislocation of the left shoulder. X-rays of the bilateral knees and bilateral shoulders were negative. A February 2001 VA treatment note reported that the Veteran had arthritis in his bilateral knees. In an April 2007 letter, a private physician noted that the Veteran was under his care for arthritis due to injuries. The physician indicated that the Veteran's last examination found "sports injuries of the knees, shoulders and back that was sustained while in the armed services". The Veteran underwent a VA examination in June 2011. The Veteran reported that he sustained injuries to his right shoulder while playing linebacker for the Navy football team. He indicated that he injured his right shoulder in 1959 but it was not very clear as to the exact mechanism of the injury. The Veteran sat out the game but returned to his duties the following week. He never went to sick call for his right shoulder injuries as he was treated by the athletic trainer. He also injured his right shoulder in 1960 when he was elbowed during a basketball game. In 1980, he received treatment at the Lakeside VA Medical Center (VAMC) as he had reduced range of motion of his shoulder. Regarding his bilateral knees, he reported that during the service he had his knees aspirated and injected on 4 different occasions by the team trainer. The Veteran ever went on sick call for his knees and was never given light duty. In 1980, he was seen at the VAMC for persistent pain in his knees and given anti-inflammatories. Regarding his lumbosacral spine, the Veteran recalled being hit in the back during a game in 1959 which resulted in him being unable to play in the game. He never had any medical attention and was treated by the trainer. The Veteran reported that after his discharge from service, he worked as a Chicago Policeman for 10 years. He had no additional injuries to his back, knees or right shoulder. He reported giving up his position as a policeman due to his back problems and he eventually had treatment with traction. He went on disability for his back pain and then worked as a doorman from 1988 to 1995. He was currently unemployed. The diagnosis was right shoulder arthritis, bilateral arthritis of the knees and arthritis of the lumbar spine. The examiner concluded that it was less likely than not that the Veteran's low back, bilateral knees and right shoulder disabilities were service-related as there was no evidence in his claims file for treatment of the above conditions. The examiner opined that these conditions were more likely than not due to the normal aging process. Per the January 2013 Board remand instructions, the Veteran underwent a VA examination in February 2013. The examiner noted that the Veteran experienced repeated back injuries and contusions, repeated contusions to the knees and multiple soft tissue injuries while playing 4 years of military football and basketball. Arthritis of the thoracolumbar spine was indicated. The diagnosis was a lumbar strain, knee contusions and a contusion of the right shoulder. The examiner opined that it was not at least as likely as not that the Veteran's complaints of a low back, bilateral knee and right shoulder disability were etiologically related to his active service. The Veteran' s natural aging process caused the present generalized joint diseases and the injuries incurred 54 years ago were unlikely to have caused any present conditions. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a low back disability, a bilateral knee disability and a right shoulder disability is not warranted. While the February 2013 VA examiner noted a diagnosis of arthritis of the thoracolumbar spine, he did not indicate that the Veteran had arthritis of the bilateral knees or the right shoulder. However, the Board notes that multiple treatment reports, including the June 2011 VA examination report, provided a diagnosis of arthritis of the lumbar spine, arthritis of the bilateral knees and arthritis of the right shoulder. When affording the Veteran the benefit of the doubt, the Board finds that the Veteran has current arthritis of the right shoulder, lumbar spine and bilateral knees. Accordingly, there are current diagnoses of right shoulder arthritis, bilateral arthritis of the knees and arthritis of the lumbar spine; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Initially, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this instance however, service connection for arthritis on a presumptive basis is not warranted. The first evidence of arthritis of the lumbar spine is the June 1990 x-ray report, the first evidence of arthritis of the bilateral knees is the February 2001 VA treatment note and the first evidence of arthritis of the right shoulder is the April 2007 treatment report of the private physician. The record does not show manifestations of arthritis within one year of the Veteran's service separation. Accordingly, service connection for arthritis on a presumptive basis is not warranted. With regard to service connection on a direct basis for the Veteran's low back, bilateral knee and right shoulder disabilities, the Board notes that the Veteran's service treatment records are negative for complaints, treatments or diagnoses of a low back, bilateral knee or right shoulder disability. While the Veteran contends that he never had any medical attention as he instead was treated by a trainer during service, his June 1962 separation examination and January 1963 reassignment examinations are significantly notably negative for complaints or diagnoses related to his knees, right shoulder or low back. On the contrary, the Veteran checked no next to the box asking of he had any or has now "painful or trick shoulder or elbow" or "trick or locked knee". Additionally, there are no clinical findings or diagnoses of bilateral knees, right shoulder or low back disabilities until many years after service. The first post-service evidence of a low back or bilateral knee disability is the June 1990 VA examination and the first evidence of a right shoulder disability is a December 2004 VA treatment note indicated that the Veteran had bilateral shoulder arthritis. To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board does not find the Veteran to be credible with regard to any assertions that he has had symptoms of these disabilities since service. While the Veteran reported having low back, right shoulder and bilateral knee complaints that progressed in severity since service, his separation examination report is again negative for any treatment, complaint, or diagnosis pertinent to the bilateral knees, right shoulder or low back. Moreover, the record is negative for complaints or treatments related to his claimed low back, bilateral knee and right shoulder disabilities until a 1990 treatment record. Thus, the Board finds that his documented medical history is in conflict with his current assertions that his current low back, bilateral knee and right shoulder symptoms have continued since service. The Board places greater weight on the contemporaneous service records, to include service separation examination which is negative for any complaints pertaining to the Veteran's low back, knees, and right shoulder. As the Veteran was not diagnosed with a low back, bilateral knee and right shoulder disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a back, bilateral knee or a right shoulder disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Having found that there is no credible evidence of a continuity of symptomatology since service, the Board notes that the relationship between his bilateral knee, right shoulder and low back disabilities and service will turn on the conflicting medical opinions of record addressing the possibility of such a relationship. As noted above, in an April 2007 letter, a private physician concluded that the Veteran had sports injuries of the knees, shoulders and back that were sustained while in the armed services. Conversely, the February 2013 VA examiner specifically found that the Veteran's current low back , bilateral knee and right shoulder conditions were less likely than not a result of his military service. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the February 2013 VA examiner's opinion to be the most probative. Regarding the April 2007 letter of the private physician which indicated that the Veteran's last examination found "sports injuries of the knees, shoulders and back that was sustained while in the armed services", no rationale was provided for this opinion and the physician did not provide any specific evidentiary or medical basis for the opinion. The Board notes that, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In contrast, the February 2013 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's claimed bilateral knees, right shoulder and low back disabilities were not related to the Veteran's service. Significantly, the examiner noted that that the Veteran's disabilities were most likely the result of the Veteran' s natural aging process as the reported in-service injuries incurred 54 years ago were unlikely to have caused any present conditions. For these reasons the Board finds the February 2013 VA examiner's assessment to be the most probative medical opinion in this case. Given that the most probative opinion is against a finding of a relationship between a right shoulder, bilateral knee and low back disability and service, the Board finds that service connection is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements, the statements of friends and family, and the statements of his representative in which they asserted their belief that the Veteran's claimed low back, bilateral knees and right shoulder disabilities are related to service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons are generally not competent to opine as to medical etiology or render medical opinions. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to indentify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer."). That is, the Veteran is competent to report that he has low back, bilateral knees and right shoulder symptoms; however, he is not competent to state that his low back, bilateral knees and right shoulder disabilities are a result of in-service injuries. Moreover, as noted above, the Board has found the Veteran's reports of a continuity of symptoms since service to lack credibility. Accordingly, the Board has placed greater probative weight on the conclusions reached by the VA examiner, who, as a medical professional, is competent to render opinions regarding medical matters. As the preponderance of the evidence is against the Veteran's claims, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a right shoulder disability is denied. REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In a January 2013 rating decision, the RO granted service connection for left shoulder degenerative joint disease at a 20 percent disability rating, effective May 21, 2007. In an April 2013 statement, the Veteran claims that the effective date for his service-connected degenerative joint disease of the left shoulder should be his 1990 date of claim. As he disagreed with the effective date for a left shoulder disability within a year of the January 2013 rating decision, a statement of the case (SOC) must be issued. To date, no SOC has been issued as to these issues of an earlier effective date for this issue. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a notice of disagreement is filed but an SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. So it is in this case. Accordingly, the Veteran's claim must be remanded so that the RO or AMC may issue an SOC on the issue of entitlement to an effective date earlier than May 21, 2007 for service-connected left shoulder disability. Accordingly, the case is REMANDED for the following action: The RO should evaluate the evidence of record, and after undertaking any other development it deems necessary, issue a statement of the case (SOC) to the Veteran and his representative regarding the issue of entitlement to an effective date earlier than May 21, 2007 for service-connected left shoulder disability. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 38 C.R.R. § 20.302(b) (2012). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs