Citation Nr: 1336357 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 06-08 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to August 1959. This matter came to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for left shoulder pain and bilateral knee pain. The Veteran testified at a videoconference hearing before an Acting Veterans Law Judge in August 2007; the transcript has been associated with the record. These matters were remanded by the Board in December 2007 to obtain VA and private treatment records. The Board, again, remanded this appeal in January 2009 to allow for a second hearing to be conducted, as the Acting Veterans Law Judge who conducted the August 2007 hearing was no longer employed by the Board. The Veteran testified at a videoconference hearing before the undersigned in June 2010; the transcript has been associated with the record. This case was, again, remanded in August 2010 and January 2012. FINDINGS OF FACT 1. A left shoulder disability was not manifested during the Veteran's period of active service, did not manifest within a year of separation from service, current left shoulder disability is not otherwise the result of a disease or injury during active service, and such disability was not caused or permanently worsened by a service-connected disability. 2. Bilateral knee disability was not manifested during the Veteran's period of active service, did not manifest within a year of separation from service, current bilateral knee disability is not otherwise the result of a disease or injury during active service, and such disability was not caused or permanently worsened by a service-connected disability. CONCLUSIONS OF LAW 1. A left shoulder disability was not incurred in or aggravated by active service; nor may it be presumed; and, is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1112(a), 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2006 & 2013). 2. Bilateral knee disability was not incurred in or aggravated by active service; nor may it be presumed; and, is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1112(a), 1131, 1137; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Veteran was sent a letter in July 2005 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. In March 2006, he was informed of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Contrary to VCAA requirements, some of the notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claims in supplemental statements of the case, to include the most recent one in April 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran's service treatment records are unavailable. The National Personnel Records Center (NPRC) has advised the RO that the Veteran's service records had likely been destroyed in a July 1973 fire at their facility and that there were no alternative records available. Destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service medical records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). The RO did ask the Veteran for records in his possession. The unambiguous response from NPRC, establishes that there are not alternate sources of records that could be searched and that further requests for the Veteran's service treatment records would likely be futile. The Board finds that all necessary development has been accomplished, to include substantial compliance with the Board remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The previous remands were for the purpose of obtaining treatment records and affording the Veteran a VA examination. As will be discussed in detail below, the Veteran was afforded a VA examination in January 2011 and an opinion was proffered. In February 2012, another VA examiner reviewed the claims folders and provided an opinion. Due to a finding by the Board that the opinions were insufficient, it sought an expert opinion through the Veterans Health Administration (VHA) in March 2013; and an opinion was proffered thereafter. In July 2013, the Board requested a clarification of the opinion, which was proffered thereafter. See 38 C.F.R. § 20.901(a). The opinions remedied the deficiencies in the previous opinions. The evidence of record otherwise contains private and VA treatment records and lay statements and testimony from the Veteran. The Board concludes that no available outstanding evidence has been identified pertaining to the claims. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to these claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. §§ 1131; 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled in part on other grounds Walker v. Shinseki, 706 F.3d 1331 (Fed. Cir. 2012)). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Continuity of symptomatology under 38 C.F.R. § 3.303(b) can only be used to establish service connection in the case of a chronic disease listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). Walker v. Shinseki. The record in this case shows that Veteran's current left shoulder and knee disabilities include degenerative arthritis. Arthritis is one of the listed chronic diseases. 38 U.S.C.A. § 1101. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Listed chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service; or if manifested in service and at any time thereafter. 38 U.S.C.A. §§ 1112, 1133; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection on the basis of aggravation, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). During the pendency of this appeal, VA amended 38 C.F.R. § 3.310, to provide that VA would not concede aggravation unless there was medical evidence created prior to aggravation or the current level of disability that showed a baseline of the claimed disability prior to aggravation. 38 C.F.R. § 3.310(b) (2013). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-4. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he injured his left shoulder and knees in service while performing jumps as a paratrooper, and that he has suffered from these conditions continuously since service. Although the Veteran's service treatment records are missing, the Veteran has submitted a 'Certificate of Completion' from the Airborne Division, which indicates that he completed the basic airborne course in March 1958. Post-service treatment records reflect impressions of bilateral knee osteoarthritis and bilateral glenohumeral osteoarthritis. An April 2006 private treatment record notes the Veteran's report that he had experienced right knee and left shoulder pain for a "couple of years." Correspondence dated in September 2010 from R.F.R, P.A.-C, states that the Veteran had lumbar disc disease with chronic low back pain, He reported that he had injures his back and knees while on active duty when his parachute was ripped by another paratrooper, and he fell the equivalent of 4 stories. R.F.R. opined that the Veteran could have sustained his back injury during this accident, after jumping from the aircraft, and this would be considered then a service connected injury, causing chronic low back pain and bilateral knee pain. In January 2011, the Veteran underwent a VA examination. Upon physical examination, the examiner diagnosed degenerative joint disease (DJD) of the left shoulder and knees. The examiner noted that the Veteran's service treatment records were presumed lost. The examiner reviewed the Veteran's statements about the nature of his parachute injury and summarized private treatment records dated in 1992 through 2005. These reflected back complaints and diagnoses, but contained no indication of a service related injury until 2006, when the Veteran reported that his back, shoulder, and bilateral knee pain were due to a parachute landing in service. The examiner opined that it was less likely as not that his left shoulder and bilateral knee DJD were caused, or permanently aggravated, by military service. The examiner noted that post-service medical records "preclude any indication" of a left shoulder condition or bilateral knee condition until 2006. The examiner stated there was no continuity of care. There was no indication of a left shoulder condition in the private medical records until 2006, when it was documented that he reported left shoulder pain and right knee pain off and on for a couple of years now. There was no indication of a left knee condition in the private medical records. He reported left shoulder and bilateral knee conditions to the VA Medical Center (VAMC) in 2006, 48 years after the claimed parachute injury. The examiner opined that the left shoulder and knee DJD were more likely due to age, genetics, and the physical demands of his 30 plus years career as a machinist. In January 2012, the Board requested an addendum opinion. The Board noted that the VA examiner had based the opinions, in large part, on the fact that there was no evidence of "continuity of care" in the Veteran's claims file. It was noted that the Veteran had consistently stated during the appeal that he had sought treatment for his disabilities shortly following service from a private physician, and that he had continued treatment with this private physician for 25 years. These records are unavailable, but it was noted that the Veteran is competent to report this treatment. In February 2012, another VA examiner reviewed the claims folders; and opined that it was less likely than not that the Veteran's left shoulder and bilateral knee conditions are related to his military service. The VA examiner noted agreement with the January 2011 VA examiner, and found that all of the documentation of the Veteran's care related to his knee and left shoulder disabilities was "accurate." The February 2012 VA examiner noted that an April 1997 South Carolina Vocational Rehab exam made no mention of knee pain; he denied any leg discomfort; and there was no mention of shoulder pain. The examiner stated that knee and shoulder complaints seemed to have come later in time than the back complaints. As such opinions did not appear to give consideration to the Veteran's statements that he sought treatment with a private physician for his disabilities shortly following service, and that he continued treatment with his private physician for 25 years, the Board requested an expert opinion from an orthopedist through VHA. A VHA expert, R.J.O., M.D., noted review of the claims folders and opined that the Veteran's left shoulder and right and left knee disabilities were not the result of an injury in service, to include a parachute injury. The examiner also opined that the Veteran's left shoulder, right knee, and left knee disabilities are not proximately due to or aggravated by his service-connected degenerative disc disease, lumbar spine. The examiner based his opinions on the fact that there was "no continuity of care trail to follow" nor documented continuity of care of the degeneration to osteoarthritis of the appendicular joints. The examiner found that there certainly was no causal relationship between the osteoarthritis of the lumbar spine and the osteoarthritis of the peripheral joints. The examiner elaborated that if the claimed four story fall was the initiating event for the current knee and shoulder disabilities; the Veteran would have presented with signs and symptoms of permanent partial disability at a much earlier date than 2006. The examiner noted that the private physicians notes did not report a severe functional incapacity; such as would have been blatantly observable. Indeed, there was no indication of a left knee disability in the non-military medical records. In July 2013, the Board requested clarification of the VHA expert's opinion, specifically requesting that the examiner consider the Veteran's assertion that he sought treatment from a private physician for his disabilities shortly following service and that he continued treatment with his private physician for 25 years. In an addendum opinion, the VHA examiner stated that with regard to the Veteran's reported care of the shoulder and knee pain post-discharge from service, no change of his opinion was warranted. The examiner stated that with regard to degenerative arthritis of the knees, in the 1999 South Carolina vocational rehab exam there was no mention of knee pain and in fact there was a statement in which "he denied leg discomfort." The examiner found that knee complaints seemed to come later in time, thus not having any connection to the alleged connection to the service complaints. With regard to left shoulder degenerative joint disease, in the 1999 South Carolina vocational rehab there was no mention of shoulder pain. The examiner found that shoulder complaints seemed to have come at a later date than the alleged connection to the service complaints. As detailed, the Veteran asserts that he injured his left shoulder and knees due to paratrooping jumps during service and sustained injury in August 1958 when his parachute ripped. Based on the Veteran's assertions and the airborne training certificate, it is clear that the Veteran participated in parachuting during service. Per a December 2012 rating decision, service connection was established for degenerative disc disease, lumbar spine, rated 10 percent disabling, and radiculopathy, left lower extremity, rated 10 percent disabling. The grant of service connection for this disability was based on the Veteran's assertions of sustaining injury during service, a positive etiological opinion, the parachute certificate, a December 1996 notation of "long-standing low back pain," and reasonable doubt. While the Board finds credible that the Veteran participated in parachuting during service, the Board finds that the preponderance of the evidence is against a finding that his current left shoulder and bilateral knee disabilities are due to parachuting incidents in service. As detailed, the Veteran asserts that he sustained injuries due to the left shoulder and bilateral knees during service and he asserts that following service he sought treatment with a private physician for 25 years. These records, however, are unavailable. The Veteran's assertions of continuity of symptomatology since service, however, are outweighed by other statements of record and the negative etiological opinions. Specifically, as detailed, in April 2006 the Veteran reported to a treating provider that he had experienced right knee and left shoulder pain for only "a couple of years." Likewise, the VHA examiner noted that the 1999 South Carolina vocational rehab examination made no mention of left shoulder or bilateral knee pain or problems, and the Veteran specifically denied any leg pain. The Board finds that the Veteran's statements offered in the course of medical treatment are more probative than statements offered in support of his claim for compensation with the potential for pecuniary gain. Moreover, the Veteran's claims folders have been reviewed by VA examiners who have proffered negative etiological opinions. Because the January 2011 and February 2012 VA examiners did not adequately consider the Veteran's assertions of continuity of symptomatology; their negative opinions are of less probative weight. The VHA expert did; however, provide reasons for finding the Veteran's reports to be incredible. The VHA expert did consider the Veteran's assertions of undergoing treatment with a private physician for 25 years, and still found that his left shoulder and bilateral knee disabilities were not due to service. The VHA examiner specifically noted that the Veteran failed to report left shoulder and knee disabilities at the time he underwent the vocational rehab examination. The VHA examiner also found that if the Veteran had sustained left shoulder and knee injuries in a four story parachuting fall, there would have been earlier signs and symptoms and permanent partial disability at a much earlier date, but the record did not show earlier signs and symptoms. The VHA examiner concluded that his complaints related to the shoulder and knees came at a later date than the alleged connection to the service complaints. The VHA expert fully considered the record, provided a definitive negative opinion and supported his conclusions with a thorough rationale. Nieves-Rodriguez v. Peake. The Board finds the opinion persuasive and plausible, as it is premised upon a thorough review of the evidence, and accompanied by an explanation. Nieves-Rodriguez. The VHA examiner's opinion is the most probative evidence with regard to the question of whether there is a nexus between the current left shoulder and bilateral knee disabilities and service. See Boggs v. West, 11 Vet. App. 334 (1998). The Board has considered the Veteran's assertions of continuity of left shoulder and knee symptoms since service, but these reports are contradicted by some of his own statements, such as reporting only a two year history of symptoms in 2006. The VHA expert also pointed out that given the nature of the reported in-service injury, disability would have been apparent on evaluations at a much earlier date. As noted, the earlier records do not show any pertinent findings or record any in-service history. Given this record, the Veterans more recent reports of a continuity of symptomatology are not deemed credible. With regard to any assertion that his bilateral knee disability and left shoulder disabilities are due to his service-connected lumbar spine disability, as detailed, R.F.R., a VA physician's assistant, opined that the Veteran could have sustained his back injury during the in-service parachuting accident, after jumping from the aircraft, and this would be considered then a service connected injury, causing chronic low back pain and bilateral knee pain. The physician's assistant's opinion was based on acceptance that the Veteran had fallen the equivalent of four stories, but as just discussed, this report is not deemed credible. There also appears to be an internal inconsistency in the statement in that R.F.R. reported treating the Veteran only for a back disability with pain radiating to the right lower extremity and did not report any current findings regarding the knees. In sum, the preponderance of the evidence is against the Veteran's claims. Reasonable doubt does not arise. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990). Service connection for disabilities of the left shoulder and bilateral knees is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for bilateral knee disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs