Citation Nr: 1335905 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-35 864 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for disability of the neck and left shoulder. 2. Entitlement to service connection for removal of the gall bladder. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1976 to December 1979, and from November 1990 to July 1991. , including service in the Southwest Asia Theater of Operations during the Persian Gulf War. He also served in the Army National Guard of Alabama. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2005 rating decision in which the RO denied service connection for a seizure disorder, disability of the neck and left shoulder, removal of the gall bladder, bilateral knee disability, and disability of the left ankle, and also denied petitions to reopen claims for service connection for posttraumatic stress disorder (PTSD), anxiety with depression, lumbar strain, tinea pedis (claimed as fungus of the feet), and a left leg condition. In January 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In October 2010, the Board reopened the Veteran's claim for service connection for PTSD, denied it on the merits, and denied the request to reopen his claims for service connection for anxiety with depression, a back disorder, fungus of the feet, and a left leg disorder. The Veteran's claims for service connection for a seizure disorder, disability of the neck and left shoulder, removal of the gall bladder, bilateral knee disability, and disability of the left ankle were remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. In a December 2011 rating decision, the AMC granted service connection for disability of the left ankle, representing a full grant of the benefit sought with respect to that disability. The AMC otherwise continued to deny the remaining claims on appeal (as reflected in a December 2011 supplemental SOC (SSOC)) and returned those matters to the Board for further appellate consideration. In December 2012, the Board denied service connection for a seizure disorder and again remanded the issues of service connection for a bilateral knee disability, removal of the gall bladder, and disability of the neck and left shoulder for further development of the evidence. The AMC continued to deny the claims on appeal (as reflected in a May 2013 SSOC and returned those matters to the Board for further appellate consideration. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered but are cumulative of records already considered by the RO in the December 2011 and May 2013 supplemental statements of the case. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. A neck disorder, best diagnosed as degenerative disc disease of the cervical spine, was first diagnosed many years after the Veteran's discharge from service, and there is no competent evidence or opinion of a medical relationship between any such current disability and the Veteran's military service. 3. While the Veteran has complained of left shoulder pain, there is no competent and credible evidence that the Veteran currently has a left shoulder disability. 4. The weight of credible and probative evidence is that the Veteran has not undergone the surgical removal of his gall bladder and does not currently have any disorder of the gall bladder. 5. A chronic bilateral knee disability, now best diagnosed as degenerative joint disease without confirmation of arthritis by imaging, was first diagnosed many years after the Veteran's discharge from service, and there is no competent and credible evidence or opinion that the disorder was caused or aggravated by any aspect of the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability of the neck and left shoulder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for removal of the gall bladder are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Notice requirements require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The December 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2005 letter. Post rating March 2006 and October 2010 letters provided the Veteran with further 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. After issuance of those letters, and opportunity for the Veteran to respond, the December 2011 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). 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 and private medical treatment records, records of disability determination by the Social Security Administration (SSA), and the reports of July 1980, November 1982, June 1994, March 1995, March 2005, December 2006, May 2011, and May 2013 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. In response to Board remands in October 2010 and December 2012, the AMC performed additional development including sending notices containing criteria for service connection on a secondary basis, obtaining current VA records, and offering the Veteran the opportunity to identify or submit additional relevant evidence. The Veteran was afforded additional VA examinations that will be discussed further below. The Board finds that the requirements of the remands have been satisfied as they pertain to this particular claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) and that no additional RO or AMC action to further develop the record on these claims, prior to appellate consideration, is required. In summary, the notice and assistance duties have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . Certain chronic diseases including arthritis shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection on the basis of continuity of symptomatology (in lieu of medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War. Among the requirements are that there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest during either active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more before December 31, 2016. By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. 3.317 (2013). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (Aug. 3, 1998). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of this section, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6- month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge, including reports of what occurred during service. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("Even if a layperson is not competent to diagnose or determine the cause of a particular condition, lay evidence is still competent to establish the occurrence of observable events and medical symptoms."). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be weighed as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran served as a U.S. Army supply and food service specialist including service in the Persian Gulf from January to June 1991. He contends that his neck, left shoulder, and bilateral knee disorders first manifested in service as a result of injury or strenuous duties and that removal of his gall bladder was performed secondary to his service-connected duodenal ulcer. Alternatively, he contends that all disabilities on appeal were a consequence of Persian Gulf War service. A. Neck and Left Shoulder Disorders In a November 2006 substantive appeal and in a December 2006 VA examination, the Veteran reported that he experienced neck and left shoulder strain while lifting heavy boxes in service. Service treatment records showed that the Veteran fainted on two occasions in late June and early July 1979. Treatment records are silent for any injury to the neck or shoulder. He sought treatment for a sore neck in August 1979 after having slept on a sofa without a pillow. A clinician noted that a neck examination was normal and prescribed an analgesic balm. The records of his first period of active duty are silent for any left shoulder symptoms or treatment. The Veteran declined to undergo a discharge physical examination. He reenlisted in the Alabama National Guard and successfully served from 1982 to 1991 including the deployment to Southwest Asia in 1991. From 1988 to 2005, the Veteran worked in an industrial plant, as a truck driver, and as a corrections officer. The Veteran underwent a reenlistment physical examination in July 1981, VA examinations in July 1980 and November 1982, a National Guard mobilization physical examination in January 1990, and a VA general medical examination in June 1994. He denied any history of a painful or "trick" shoulder, bone, joint or other deformity in the military examinations and did not report any shoulder or neck symptoms in the VA examinations. All examiners noted no spine or musculoskeletal abnormalities. Also in June 1994, the Veteran underwent a VA Gulf War screening examination by an environmental physician. The examination report was silent for any neck and shoulder symptoms or residuals of injuries. In October and November 2000, VA outpatient clinicians noted the Veteran's reports of stiffness and soreness in the neck and shoulders, particularly in the right shoulder following work cutting trees. Clinicians diagnosed shoulder arthralgia and prescribed oral analgesic medication. VA outpatient records showed continued symptoms of neck and shoulder discomfort through November 2003. In a nearly illegible report dated in December 2001, a private physician noted that the Veteran reported recurrent back and neck pain and referred to two vertebral joints in the lumbar and cervical spine. In September 2004, another private physician noted the Veteran's reports of mild to moderate cervical pain. The physician noted that the Veteran was not a good historian but that he reported the start of joint pain after Gulf War service in 1991. The physician reviewed the results of recent magnetic resonance images and diagnosed spondylosis and disc protrusions at C3-7 with radiculopathy. The disc protrusion at C5-6 was confirmed in an October 2004 computed tomography myelogram. The Veteran declined to undergo further imaging or therapy. In December 2006, a VA nurse practitioner (NP) noted the Veteran's report of injuring his back carrying heavy boxes while on active duty in 1991. However, he also reported injuring his neck and shoulders in a fall caused by his back in 2002. He reported treatment by his private physician who did not order X-rays but prescribed oral medication for pain. The Veteran reported to the NP that he currently experienced continuous moderate bilateral shoulder pain and severe neck pain with flare-ups that caused his shoulder pain to increase. On examination, the NP noted no neck or shoulder swelling or deformity but there was tenderness over the C3-5 vertebrae and over the acromial clavicular line. Range of motion of the neck and both shoulders was limited to less than normal because of severe pain. X-rays of the shoulders were entirely normal, and X-ray of the cervical spine was evaluated as "essentially normal." The NP noted the dramatic difference between the severe clinical symptoms and the imaging results and declined to offer any opinions. The NP diagnosed cervical strain and bilateral shoulder arthralgia with limitation of motion and pain. In May 2008, SSA granted disability benefits in part for cervical spine disease effective in November 2005. Lay statements and medical records associated with the adjudication noted that the first records of neck pain were dated in 2002 but did not address any injuries or activities related to military service. In May 2011, a VA physician noted a review of the claims file and the Veteran's report of left shoulder pain radiating up from his left ankle. He reported daily pain, stiffness, weakness, giving way, and locking at least daily. On examination, the physician noted tenderness and abnormal ranges of active and passive motion with pain on motion of the left shoulder. There was no notation regarding imaging studies. The physician diagnosed "normal left shoulder," but then noted moderate or severe limitations in most daily activities. The physician did not provide an opinion on any relationship to service because she diagnosed a normal shoulder. The physician also noted the Veteran's report of a slip and fall accident while unloading a truck. He heard a "pop' in his left side and sought treatment at sick call but could not remember the diagnosis. He now reported neck stiffness, pain, and locking. On examination, the physician noted a normal posture with no muscle spasms, atrophy, guarding, weakness, tenderness, or pain on motion. There was significant abnormal range of motion, but there was no loss of sensation, reflex, or muscle strength in the upper extremities. The physician referred to X-rays that showed mild multilevel degenerative changes and a nerve conduction study that showed no evidence of peripheral or entrapment neuropathy of the upper extremities. The physician diagnosed degenerative disc disease of the cervical spine and noted severe limitations in almost all activities. The physician concluded that the cervical spine disease was not caused by military service because there was no evidence of spinal disease in service or supporting evidence of an injury in service. In December 2012, the Board reviewed the record and found that the May 2011 examination report on the left shoulder was inconsistent because the examiner observed significant limitation of motion, painful motion, and moderate or severe limitations of activities but diagnosed a normal shoulder and did not provide an opinion regarding the Veteran's contended injuries in service. The Board remanded the claim for the examiner to clarify the diagnosis and indicate whether the cervical spine disease or other disorders were responsible for the limitation of motion and activities. In May 2013, the same VA physician performed another examination, again noting a review of the claims file. The Veteran reported continued left shoulder pain radiating to the left arm and fingers. The physician noted, "...unable to obtain other useful information from this vet pertaining to the neck, left shoulder, ...even after redirection and explanation vet continues to ramble about chronic pain..." On examination, there was local tenderness but no loss of strength. Range of motion with pain was less than normal but considerable greater than measured in 2011. The physician noted that X-ray image studies were available and showed no degenerative or traumatic arthritis. The physician explained, Although there are reportable differences between the normal range of motion and the actual range of motion performed by the veteran, it does not preclude the fact that there were no objective findings, radiologic studies, or physical exam that confirmed a pathologic reason for the reduced range of motion. Reduced range of motion does not dictate clinical pathology and can be accounted for by a variety of reasons to include muscle spasm, tight or sore muscles, pain, poor effort, malingering, mood, etc. The physician further explained that her findings of a disability imposing a substantial qualitative impact on activities in 2011 were based only on the Veteran's subjective reports of his daily activity limitations. She confirmed that the left shoulder was normal based on physical examination and radiologic studies and should not affect daily activities. The physician also concluded that the Veteran's complaints of shoulder joint pain were not referred pain secondary to degenerative disease of the cervical spine. The physician was unable to determine the source of the Veteran's reported shoulder joint pain. The Board concludes that the examination in 2011 as modified in 2013 is adequate and responsive to the Board's remand instructions. The physician reviewed the entire record, considered the Veteran's lay statements and reported symptoms, performed an examination, reviewed imaging studies, and provided opinions with a rationale that addressed the Veteran's subjective reports and objective clinical evidence The Board concludes that service connection for neck and left shoulder disorders is not warranted because the Veteran's degenerative disease of the cervical spine manifested greater that one year after service and was not caused by events in service including heavy work. The Veteran does not have a chronic left shoulder disability but rather experiences acute, subjective pain and stiffness after exertion without pathology to support the diagnosis of a chronic disorder. The Veteran is competent to report the nature and onset of his neck and left shoulder symptoms as they are observable to a lay person. The Board places somewhat low probative weight on his report of the time of onset and severity of the symptoms. Although on one occasion, the Veteran reported the onset of neck and shoulder pain shortly after service in 1991, those reports are not consistent with examination records in service and in 1994 in which he denied any symptoms. The first report of neck and shoulder stiffness and soreness was to clinicians was in 2000. There are no lay or medical records of any traumatic injuries prior to a fall in 2002. Rather, the Veteran's symptoms were limited to soreness following work carrying heavy boxes, sleeping without a pillow, and cutting trees with treatment appropriate for muscle strain. Clinicians did not react to his reports with further investigation with imaging or electrodiagnostic studies as would be appropriate for trauma with potential joint or permanent muscle damage. The VA physician in 2004, the VA NP in 2006 and the VA physician in 2011 and 2013 all commented that the Veteran was a poor historian and challenged his reports as "rambling" and not consistent with objective clinical findings. Symptoms of chronic neck discomfort were first noted in VA and private records starting in 2000. Although one set of X-rays in 2006 were "essentially normal," other imaging and electrodiagnostic studies in 2004 and 2011 showed degenerative disc disease and bulging cervical discs but with no evidence of neuropathy of the upper extremities. Therefore, the weight of competent and credible evidence is that the neck symptoms are best diagnosed as degenerative disc disease and do not represent an undiagnosed illness or other qualifying illnesses associated with Gulf War service. SSA granted disability benefits in part because of cervical spine disease but there is no mention in any SSA lay or medical records of a relationship to events in service. The Board places greatest probative weight on the opinion of the VA physician in 2011 who reviewed the entire record and concluded that the cervical spine disease was not caused by military service because there was no lay or medical evidence of a traumatic injury or onset of spinal disease in or for several years after service. Tenderness was noted over the affected cervical discs. The absence of any symptoms in 1994, the absence of muscle spasms, atrophy, or loss of muscle strength in 2011, and the absence of any clear post-service diagnosis of a neck muscle disorder indicates that the Veteran's muscle strains from exertion or uncomfortable sleeping in service were not recurrent or chronic muscle disabilities. As noted above, the Board assigns very low probative weight to the Veteran's reports of the onset and severity of left shoulder pain and his demonstrated range of motion because the validity of the reports and the displayed motion were challenged by VA examiners on several occasions and are inconsistent with the clinical and imaging evaluations of the shoulder. The 1994 VA Gulf War examination report and the SSA records are silent for any post-service left shoulder symptoms. The demonstrated range of motion in 2013 was considerably greater than that demonstrated in 2011 with no loss of muscle tone or strength. All imaging studies were negative for any joint disease or defect. The Board places greatest probative weight on the opinion of the VA physician in 2011 as modified in 2013. This physician reviewed the entire record, examined the Veteran, obtained imaging studies and found that the Veteran did not have a chronic left shoulder disability. The physician noted an inability to determine the cause of the Veteran's reported shoulder pain and stiffness, and the Board considered whether the subjective symptoms represented an undiagnosed illness. The Board rejects this categorization because of the affirmative medical assessments of no disability and the low probative value of the Veteran's subjective reports. The physician also proposed several possible causes including tight or sore muscles following exertion, malingering, poor effort, or mood. None of these are associated with any aspect of service including service in Southwest Asia. The weight of the credible and probative evidence demonstrates that the Veteran's degenerative disc disease of the cervical spine first manifested greater than one year after active service and was not caused or aggravated by any aspect of service including service in Southwest Asia. The Veteran does not have a chronic left shoulder disability. As the preponderance of the evidence is against these claims, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Removal of the Gall Bladder In a July 2004 claim, the Veteran contended that he underwent surgery at a VA hospital in 1981 to remove his gall bladder and that the surgery was necessary because of his consumption of contaminated water while on active duty. Although the surgery was prior to his Gulf War service, he contended that his gall bladder disease was caused by that service. In a November 2006 substantive appeal, the Veteran alternatively contended that the removal of his gall bladder was secondary to a service-connected duodenal ulcer. Service treatment records for service in 1976-79 and in 1990-91 are silent for any symptoms associated with the gall bladder. In his first period of service, the Veteran was treated on several occasions for nausea, abdominal pain, and diarrhea. In July 1980, a VA examination showed that the Veteran had an active stomach ulcer. In November 1980, the RO granted service connection for a duodenal ulcer. In November 1982, a VA physician noted the Veteran's report of the surgical removal of his right testicle at the VA Medical Center in Birmingham in 1981. The physician observed that the right testicle had been removed but did not note the cause for the surgery. The physician noted that the Veteran continued to use medication for the ulcer but made no mention of gall bladder disease or gallstones. In National Guard physical examinations in 1985 and 1990, the Veteran reported that he underwent surgery at a VA facility in 1981. The nature of the surgery was for a hernia, and examiners observed a lower abdominal scar but no other residuals. In a June 1994 Gulf War screening, a clinician checked a box on a form indicating a history of "stones" in 1981 with no further explanation. In a March 1995 VA general medical examination, the examiner noted the Veteran's report of the surgical removal of his right testicle in 1981. On examination, there were no residual genitourinary symptoms. The Veteran reported that he continued to use antacid medication for the ulcer with no other digestive system symptoms. In a July 2001 VA examination, a physician again noted the history of the removal of the right testicle in 1981 and identified the facility as the VA Medical Center in Birmingham, Alabama. In March 2002, the Veteran noted that the Medical Center had mailed him a report of the surgery and offered to obtain the report for the RO. No such documents have been received from the Veteran. In July 2002, the RO requested records of the surgery but the VAMC reported that no records were held. The Veteran was informed in a statement of the case the same month. In December 2005, the RO denied service connection for removal of the gall bladder because there was no medical evidence of gall bladder dysfunction or surgery. In an October 2010 remand, the Board directed an additional search for record of VA surgery in 1981 and that the Veteran be provided an examination to investigate the etiology of gall bladder dysfunction and reasons for surgery including any secondary relationship to the duodenal ulcer. In January 2013, the RO initiated an additional search for records of the 1981 surgery at VAMC Birmingham that was unsuccessful. The Veteran was examined by the same VA physician in May 2011and May 2013. On both occasions, the physician noted a review of the claims file and the electronic medical records. In the first examination, the Veteran was unable to explain the type of surgery he underwent in 1981 and reported that his upper abdomen scar had moved to the area of the groin. In one part of the report, the physician diagnosed a history of cholecystectomy that imposed moderate impairment of all forms of activity. In another part of the report, the physician noted that there was no diagnosis of gallbladder disease and no evidence to support the occurrence of a cholecystectomy. In the second examination report, the physician noted a history of gallstones resolved by removal in 1981. The physician quoted the Veteran's report of his history as follows: "I just found out that they did not remove my gallbladder, I had a gallstone that they found while I was doing some routine testing, it was my understanding that the gallstone had moved into the testicle because it wouldn't flush out and got the testicle infected." The physician acknowledged that she was unable to obtain useful historical information from the Veteran. The physician noted no abnormal laboratory test results and no current symptoms associated with gall bladder disease. On examination, the physician noted a well healed stable scar to the right inguinal area that the Veteran identified as the site of the gallbladder removal. The physician from the Veteran's admission and the location of the scar that the Veteran had not undergone a cholecystectomy and that there was no evidence in the file or from her examination of a history or current gall bladder disease. The Board concludes that the combined examination reports from the VA physician in 2011 and 2013 are adequate assessments of the Veteran's contended cholecystectomy as they involved a detailed review of the history, interview and examination of the Veteran, an assessment of credibility of symptom reporting, a clinical examination with reference to imaging studies, and an opinion responsive to the Board's instructions. Additionally, the RO made further attempts to recover records of VA surgery in 1981 without success. Therefore, there has been substantial compliance with the October 2010 and December 2012 remands. The Board concludes that service connection for removal of the gall bladder is not warranted because the Veteran did not undergo the surgical removal of the gall bladder and currently has no gall bladder disease or dysfunction. As noted above, the Board concludes that although the Veteran is competent to report the occurrence of surgery, his reports warrant very low probative weight as they are inconsistently reported and not consistent with clinical observations including the location of an abdominal scar. Even though no records of surgery in 1981 could be recovered, the Veteran likely underwent some surgery but was more credibly noted by physicians as a hernia repair and/or the removal of the right testicle. In fact, a physician noted that the right testicle had been removed and that there was a scar in the groin area. There is no lay or medical evidence of symptoms, diagnoses, or treatment for a hernia or genital disorder in active duty service. Even if the Veteran did experience an episode of gallstones at any time between the two periods of service or after service, there is no lay or medical evidence of symptoms of any residual disease or disability. The theory that the gallstone moved to the right testicle is incredible because the digestive and genitourinary systems are separate and the theory was not accepted by the VA physician. Notwithstanding some confusing entries in the May 2011 report, the Board places greatest probative weight on the conclusions of the VA physician in May 2013 who found that the Veteran there was no evidence of gall bladder surgery, the Veteran acknowledged no gall bladder surgery, and the scar was not consistent with gall bladder surgery. The physician also noted that laboratory testing was not consistent with gall bladder disease. The physician stated, "...therefore it is the examiner's opinion that vet had a cholecystectomy." In view of all the examiner's comments, the Board concludes that the statement contained a typographical error and instead indicated that the Veteran had not had a cholecystectomy. As the preponderance of the evidence is against this claims, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. C. Bilateral Knees. In a November 2006 substantive appeal, the Veteran reported that he sought treatment on several occasions during both periods of active duty for bilateral knee pain and continued to experience the pain after service. In a July 2013 brief, the Veteran's representative contended that the knee pain was actually radiculopathy caused by lumbar spine disease, thus suggesting entitlement to service connection on a secondary basis. Service treatment records for the first period of active duty showed that the Veteran sought treatment on three occasions. In July 1977, June 1978, and August 1979 about for left knee pain. On the latter occasion, the Veteran reported hitting his knee on a car. On each occasion clinicians diagnosed either a normal knee or muscle strain. A July 1980 VA examination was silent for any reports by the Veteran or observations by the examiner of any knee symptoms or dysfunction. In a November 1982 VA examination, the Veteran reported left knee pain, radiating to the left ankle. Range of motion of all joints was normal. The Veteran denied any knee symptoms on a July 1981 National Guard enlistment examination and on a January 1990 mobilization examination. While on active duty in April 1991, the Veteran sought treatment for left knee pain and numbness after prolonged standing. The examiner noted only that the Veteran injured his lower back the previous November and that that the pain was radiating from the lumbar spine. There was no investigation or diagnosis of a left knee disorder. While still on active duty in June 1991, the Veteran sought treatment at a VA clinic for bilateral knee pain. An examiner noted slight right knee laxity but otherwise normal knees. In a June 1994 VA Gulf War examination, the Veteran reported right hip pain radiating to the right knee. X-rays of the hip and knee were normal. March 1995 and December 2006 VA general medical examinations are silent for any knee symptoms. These examinations as well as private and SSA records addressed cervical and lumbar spine pain but not knee pain. Service connection for lumbar spine strain was denied in a final decision by the Board in October 2010. In the same decision, the Board noted the Veteran's reports in his substantive appeal of a continuity of knee pain since service and directed another VA examination. In May 2011, a VA physician noted a review of the claims file and the Veteran's report of a fall on ice during military training in the winter of 1977 for which he was prescribed medication for pain. He reported current symptoms of bilateral knee numbness and radiating pain to the entire left side with difficulty with extended walking or standing. The physician noted that the Veteran's reports were rambling and that this thought process was not entirely clear. On examination, the physician noted bilateral knee tenderness and guarding and some limitation of range of motion. The physician did not note any imaging studies but diagnosed bilateral mild, early, degenerative joint disease with severe or moderate limitation of all daily activities. The physician concluded that the bilateral knee disease was not caused or aggravated in service. Citing a medical text for the principle that the degenerative disease could be caused by injury or aging, the physician explained that the service treatment records did not show a "true injury" and that the clinical examinations in service were all negative. In December 2012, the Board noted that the physician was inaccurate in noting that all service clinical examinations were negative because the June 1991 VA clinical treatment was during active duty and did show right knee laxity. The Board directed that the physician provide an addendum to reconsider this record. In May 2013, the physician again noted a review of the claims file and the Veteran's report of right knee pain radiating down to the ankle and up to the left hip. The Veteran denied any left knee pain. He reported that he used a cane for stability. On examination, range of flexion of both knees was limited with pain on motion and tenderness on palpation. There was no loss of strength or indications of instability or meniscus damage. The physician noted no X-ray evidence of arthritis or patellar subluxation. The physician noted that the three clinical examinations in the 1970s were normal and that the 1991 examination noting right knee instability also found no swelling or further comments about laxity testing. The physician concluded that it was unlikely that any current degenerative disease of the knees was attributable to service because the noted laxity on the right in 1991 was only slight and an X-ray of the right knee in 1994 was normal with no subsequent consistent symptoms or treatment for the knees. The Board concludes that the combined examination reports from the VA physician in 2011 and 2013 are adequate assessments of the Veteran's knees as they involved a detailed review of the history, interview and examination of the Veteran, an assessment of credibility of symptom reporting, a clinical examination with reference to imaging studies, and an opinion responsive to the Board's instructions. Therefore, there has been substantial compliance with the October 2010 and December 2012 remands. In a July 2013 brief, the Veteran's representative contended that the knee pain was radiculopathy from a lumbar spine disc disorder. The representative called attention to four internet articles for the proposition that the X-rays in 1995 or magnetic resonance images in general may not be sufficient to reveal vertebral disc fractures or soft tissue injuries. The Board concludes that service connection for a bilateral knee disability is not warranted. To the extent that the knee pain may be radiculopathy from lumbar spine disease, the Board denied service connection for a lumbar spine disorder in October 2010. Therefore, service connection for the knees on a secondary basis is not available. Should the Veteran desire to reopen the claim for the lumbar spine as suggested by the representative in the 2013 brief, a clearly articulated claim submitted to the RO is necessary as this issue is no longer before the Board on appeal. His reported circumstances of a knee injury on ice in the winter of 1977 is not credible as the three occasions for left knee treatment in the 1970s were all in warmer months. As noted above, the Veteran is competent to report his observed knee symptoms but his reports warrant very low probative weight as they are not consistent with clinical examinations in service and denials of any knee disorders on two National Guard examinations. Further, he variously described his knee pain as radiating to or from other joints which examiners have found difficult to accept for clinical purposes. The Board places greater weight on the clinical observations of military examiners, and on the absence of any knee symptoms or treatment in SSA, VA outpatient treatment records, and March 1995 and December 2006 general medical examination. The Board may not reject the Veteran's reported symptoms solely because of the absence of medical evidence, but in this case the Veteran had opportunities to report knee symptoms but either did not do so or denied any knee symptoms. With the exception of one examiner in 1991 who noted mild right knee laxity, all other examiners found normal knees. The Board places greatest probative weight on the observations and assessment by the VA physician in 2011 and 2013 who reviewed the entire claims file, considered the Veteran's lay statements and symptoms, but concluded that the mild degenerative disease was not caused by injury in service or manifested as a chronic disorder prior to the 2011 examination and diagnosis of mild degenerative joint disease. Notably, the diagnosis was not confirmed with imaging studies showing arthritis. Notwithstanding the representative's suggestion that imaging studies cannot detect minor tears and soft tissue injuries, the Board finds that the representative is not competent to assess the reliability of imaging studies and the internet articles provide only general information. The Board declines to challenge the competent medical judgment of qualified clinicians who have the expertise to determine when to obtain imaging studies and whether they are or are not sufficient to assist in offering a diagnosis or opinion on the etiology of a disorder. Finally, the Board considered whether the application of the criteria for a qualifying illness associated with service in the Persian Gulf War is applicable to the bilateral knee pain. The Board concludes that it is not applicable because there is credible medical evidence that the Veteran's occasions of knee pain in the 1970s preceded Gulf War service and because the one encounter for right knee pain in 1991 was not diagnosed as a chronic disorder because of the absence of confirming pathology. The Veteran's symptoms starting in 2011 were assigned a specific diagnosis and further did not rise to a compensable level for arthritis as there is no X-ray evidence of degenerative disease. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). The weight of the credible and probative evidence demonstrates that the Veteran's current bilateral mild degenerative joint disease of the knees manifested greater than one year after active duty and was not caused or aggravated by injury or any other aspect of service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for disability of the neck and left shoulder is denied. Service connection for removal of the gall bladder is denied. Service connection for a bilateral knee disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs