Citation Nr: 1338095	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  07-32 053	)	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 knee disability.

2.  Entitlement to service connection for a right knee disability.

3.  Entitlement to service connection for plantar fasciitis, left foot.

4.  Entitlement to service connection for plantar fasciitis, right foot.

5.  Entitlement to service connection for a left shoulder disability.

6.  Entitlement to service connection for a right shoulder disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The Veteran served on active duty from April 1970 to March 1971, with additional service in the South Carolina National Guard.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In June 2011, this matter was remanded for further development.  This having been completed, the matter has been returned to the board for further review.

The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file as well as the paper claims file and will proceed with review of the claims based upon all relevant evidence.  


FINDINGS OF FACT

1.  A bilateral knee disability, to include degenerative joint disease of the knees, has not been shown to have had its onset in service or within one year of service, and such disability is not otherwise a result of active service.

2.  Bilateral plantar fasciitis of the feet has not been shown to have had its onset in service, and such disability is not otherwise a result of active service.

3.  A bilateral shoulder disability, to include left rotator cuff weakness, left shoulder impingement syndrome, and degenerative joint disease, has not been shown to have had its onset in service or within one year of service, and such disability is not otherwise a result of active service.


CONCLUSIONS OF LAW

1.  The criteria for an award of service connection for a bilateral knee disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for an award of service connection for bilateral plantar fasciitis of the feet have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013).

3.  The criteria for an award of service connection for a bilateral shoulder disability, to include left rotator cuff weakness, left shoulder impingement syndrome, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA.

In March and May 2006 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013).  The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide.  The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2013).  VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  Identified relevant service treatment and other medical records have been associated with the claims file.  In addition, the Veteran was afforded VA examinations in July 2006, March 2008, and June 2011, which, taken together, are adequate to decide the claims.  Specifically, the March 2008 and June 2011 examiners reviewed the claims file and supported the opinions offered with reference to the Veteran medical history and physical examination.    

The Board also notes that, in June 2011, this matter was remanded for further development, to include obtaining from the South Carolina Adjutant General any records pertaining to the Veteran, asking the Veteran to submit any treatment records associated with her National Guard duty that she has in her possession, obtaining and associating with the claims file relevant VA treatment records not already associated therewith, and affording the Veteran a VA examination in connection with her bilateral knee claim.  Upon remand, additional National Guard records were obtained and the Veteran's claims file was updated with additional VA treatment records.  In addition, the Veteran was afforded a VA examination in June 2011 that complied with the Board's remand directives.  As such, there has been substantial compliance with the terms of the June 2011 remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

II.  Analysis

Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a).  

The existence of a current disorder is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  That a condition or injury occurred in service alone is not enough.  There must be disability resulting from that condition or injury.  In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication).

Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)).  Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity  may be legitimately questioned.   Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).  

In addition, service connection may be established on a secondary basis 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).  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) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable."  38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  Service connection may be granted for disability resulting from disease or injury that is incurred in or aggravated during active duty for training (ACDUTRA), or from injury incurred in or aggravated by inactive duty training (IDT).  

The Board notes that certain evidentiary presumptions apply to all periods of active duty service, including a presumption of sound condition upon entrance into service, a presumption of aggravation during service of a preexisting disease or injury that undergoes an increase in severity during service, and a presumption of service incurrence for arthritis, cardiovascular-renal disease, and endocarditis (including all forms of valvular heart disease) if such condition(s) manifest to a level of 10 percent disabling or more within one year after the Veteran's separation from active duty.  See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309.  However, these presumptions do not apply to claims of service connection based on a period of ACDUTRA or IDT.  See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995).

It is the Board's responsibility to evaluate the entire record on appeal.  38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996).

In this case, the Veteran contends that she is entitled to service connection for bilateral knee and shoulder disabilities, and bilateral plantar fasciitis of the feet.

The Board first notes that VA treatment records and examinations reveal diagnoses of the claimed disorders during the relevant period.  In addition, a January 2005 line of duty determination indicates that the Veteran's commander, with much reservation, recommended a finding of "In the Line of Duty" as the Veteran claimed that she experienced pain in her knees on October 2, 2004, while participating in a stepping assessment during a physical fitness examination.  She was subsequently diagnosed with delayed sprain of the knees by her private physician.  
 
The Veteran was provided VA examinations dated in July 2006 that diagnosed bilateral degenerative joint disease of the feet, bilateral plantar fasciitis, and bilateral mild degenerative joint disease of the shoulders.  The examiner indicated that the objective data did not support a diagnosis for bilateral knees at that time.  With respect to the foot complaints, the Veteran reportedly started noticing pain and swelling of her feet in 2004.  X-rays indicated some degenerative changes of the first MTP joints bilaterally and a calcaneal spur on the right at the plantar fascia attachment site.  No opinion regarding nexus was offered.  With respect to her bilateral shoulders and knees, the Veteran indicated that she started noticing pain in both knees in 2004.  She also began to notice pain in her right and left shoulders in January 2005 and sought treatment soon thereafter.  She was given Tylenol and treated conservatively.  X-rays of the shoulders revealed mild degenerative joint disease at the AC joint.  X-rays of the knees dated in September 2005 were negative.  No opinion regarding nexus was offered and the examiner indicated that the claims file had not been reviewed in connection with the examination and report. 

The Veteran was examined again by VA in March 2008.  The examiner indicated that the claims file had been reviewed.  The examiner noted that the Veteran had been diagnosed with plantar fasciitis in 2000 and had heel pain since 1970 that had largely resolved until its recurrence in 2004.  The Veteran used inserts in her boots that provided no relief.  She also had bilateral knee pain that began as a result of compensating for her foot and ankle pain.  The Veteran's left shoulder pain began in 2005 as throbbing pain that lasted all day, secondary to the lifting required while working at a warehouse.  A January 2008 MRI revealed degenerative joint disease of the left AC joint with compression of the supraspinatus tendon by downsloping acrmion process.  After examination, the Veteran was diagnosed with left rotator cuff weakness with supraspinatus and infraspinatus tendinosis, left shoulder impingement syndrome, degenerative joint disease of the bilateral knees, bilateral plantar fasciitis, and mild bilateral pes planus.  The Veteran was also diagnosed with bilateral ankle sprains.  The examiner stated that it was quite obvious by history and physical, as well as review of the medical records, that the bilateral ankle pain developed during "active duty service."  However, the examiner also found that the bilateral knee, shoulder, plantar fasciitis as well as heel spurs were incurred on full time Air National Guard military service, and not while on active duty service.  

Because the January 2005 line of duty determination had indicated that the Veteran may have injured her knees on active duty in October 2004, the Veteran was afforded an additional VA examination dated in June 2011 to determine whether she has a bilateral knee disability which first manifested during training on October 2, 2004, and was due to an injury sustained at that time (or was otherwise attributable to her period of active duty service), or, in the alternative, whether the Veteran's current bilateral knee disability is related to a chronic disease process, such as her diagnosed Sjogren's Syndrome.  

The Veteran reported that her knee complaints of started in 2005 while in the National Guard and that she did not have a significant injury.  Her knees started to bother her then and she had no problems prior to military service.  X-rays indicated mild joint space narrowing, right equal to left, with no osteophyte formation.  The Veteran had mild bilateral tricompartmental degenerative joint disease medial most significantly involved.  After examination, the Veteran was diagnosed with bilateral knee mild degenerative joint disease.  The examiner stated that the claims file had been reviewed in its entirety.  The examiner stated that the Veteran had no history of traumatic injury and had intermittent pain and swelling consistent with degenerative joint disease, which the examiner stated was age related rather than related to any particular physical fitness testing.  The examiner also stated that the Veteran had a concomitant diagnosis of Sjogren's syndrome which did have an association with degenerative joint disease.  Given that the Veteran had a previous diagnosis of Sjogren's, the examiner found that the degenerative joint disease was not related to her physical fitness testing, but was more likely related to her Sjogren's syndrome, as well as age related degeneration.

The Veteran has extensive outpatient treatment records.  These were reviewed and no indication was found that that the Veteran's claimed knee, shoulder, and foot disabilities were related to her periods of active duty service.  Again, the onset of her symptomatology was described above.

Based on the foregoing, the Board finds that entitlement to service connection for knee, shoulder, and foot disabilities is not warranted in this case.  Here, the Veteran has been diagnosed with these disorders.  However, the VA examinations dated in March 2008 and June 2011 specifically found that the Veteran's diagnosed disorders were not related to her active military service.  

The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.  The credibility and weight to be attached to these opinions is within the province of the Board.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997).  

In this case, the Board finds that the opinions of the VA examiners in this case to be persuasive, based as they were on examinations of the Veteran and her claims file.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The VA examiner's opinion, rendered by a medical professional, is afforded significant probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.)  In this case, alternate causes of the claimed disabilities were noted, serving to provide adequate explanation for the conclusions reached.  In other words, the examiner's sufficiently explained why the diagnoses accounting for the current symptomatology would not be attributable to an incident of active duty, to include the period of ACDUTRA for which a line of duty determination was made.  

In addition, the Board notes that the Veteran has contended on her own behalf that the claimed disabilities are related to her service.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition).   Lay evidence may also be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation").   Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

The Board finds that the diagnosis and etiology of the Veteran's disorders is a complex medical question, beyond the competency of a layperson.  The Board further finds that the question regarding the relationship between such disabilities and military service to be complex in nature.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Therefore, as the Veteran has only provided her own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as she is not competent to opine on such a complex medical question.  Moreover, while degenerative joint disease (arthritis) is a chronic disease under 38 C.F.R. § 3.309(a), there is no factual support for an allowance based on continuity of symptomatology based either on the clinical record or the Veteran's own statements.  

In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims.  The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

Because the preponderance of the evidence is against the claims, the claims must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a left knee disability, to include degenerative joint disease, is denied.

Service connection for a right knee disability, to include degenerative joint disease, is denied.

Service connection for plantar fasciitis, left foot, is denied.

Service connection for plantar fasciitis, right foot, is denied.

Service connection for a left shoulder disability, to include left rotator cuff weakness, left shoulder impingement syndrome, and degenerative joint disease, is denied.

Service connection for a right shoulder disability, to include degenerative joint disease, is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs