Citation Nr: 1341920 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 06-31 865A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 30 percent for residuals of left tibial tubercle fracture with osteoarthritic changes and chronic chondromalacia of the knee. 2. Entitlement to a rating in excess of 30 percent for recurrent subluxation of the left knee. 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 4. Entitlement to service connection for a bilateral eye disorder, including diabetic retinopathy, associated with diabetes mellitus, type II. 5. Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 6. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 7. Entitlement to service connection for gout, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 8. Entitlement to service connection for hypertension, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 9. Entitlement to service connection for hypertensive heart disease, to include as secondary to hypertension. 10. Entitlement to service connection for osteomyelitis, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 11. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 29, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from October 1954 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2009, March 2010, and June 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In September 2010, the Board remanded the case for further development and, in October 2012, the Board remanded the case again to afford the Veteran a Board hearing at the local RO, which was held before the undersigned Veterans Law Judge in November 2012. A copy of the hearing transcript has been associated with the claims file. In February 2013, the Board again remanded the claims on appeal for additional development and the case now returns for further appellate review. As noted in the prior February 2013 remand, in the September 2010 remand, the Board also referred the issues of entitlement to service connection for left thigh atrophy and entitlement to a clothing allowance. While the issue of entitlement to left thigh atrophy was adjudicated in the June 2011 rating decision, it does not appear that the issue of entitlement to a clothing allowance has been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that in a November 2013 Motion, the Veteran, through his representative, withdrew several issues that were previously on appeal. This motion also indicated that the Veteran wished to withdraw the issue of service connection for erectile dysfunction. However, the Board previously granted this issue in its February 2013 decision and the RO effectuated the Board's decision in a July 2013 rating decision. As such, this matter is not currently before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that, with the exception of additional VA treatment records dated through August 2013, which were considered by the AOJ in the September 2013supplemental statement of the case, and a November 2013 brief submitted by the Veteran's representative, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a November 2013 statement, the Veteran withdrew his appeal regarding the issues of entitlement to a rating in excess of 30 percent for residuals of left tibial tubercle fracture with osteoarthritic changes and chronic chondromalacia of the knee; entitlement to a rating in excess of 30 percent for recurrent subluxation of the left knee; and entitlement to service connection for diabetes mellitus, type II, bilateral eye disorder, bilateral carpal tunnel syndrome, gout, hypertension, hypertensive heart disease and osteomyelitis. 2. A bilateral shoulder disability was not manifested during the Veteran's active duty service or for many years thereafter, is not otherwise related to such service, and is not causally related to or aggravated by the Veteran's service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 3. Prior to May 29, 2009, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran, as it relates to the issues of entitlement to a rating in excess of 30 percent for residuals of left tibial tubercle fracture with osteoarthritic changes and chronic chondromalacia of the knee; entitlement to a rating in excess of 30 percent for recurrent subluxation of the left knee; and entitlement to service connection for diabetes mellitus, type II, bilateral eye disorder, bilateral carpal tunnel syndrome, gout, hypertension, hypertensive heart disease and osteomyelitis, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 3. Prior to May 29, 2009, the criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal of Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a November 2013 statement, the Veteran withdrew his appeal as to the issues of entitlement to a rating in excess of 30 percent for residuals of left tibial tubercle fracture with osteoarthritic changes and chronic chondromalacia of the knee; entitlement to a rating in excess of 30 percent for recurrent subluxation of the left knee; and entitlement to service connection for diabetes mellitus, type II, bilateral eye disorder, bilateral carpal tunnel syndrome, gout, hypertension, hypertensive heart disease and osteomyelitis. Hence, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. II. VA's Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in November 2008, October 2009, and December 2010 that fully addressed all notice elements referable to his claims for service connection, to include on a secondary basis, and increased rating claims that were previously on appeal, as well as his underlying claim of entitlement to a TDIU. The letters provided information as to what evidence was required to substantiate the claims on appeal and of the division of responsibilities between VA and a claimant in developing the information and evidence necessary to substantiate his claims. Moreover, the letters informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Although the November 2008 and October 2009 letters were sent prior to the initial adjudication of the matters on appeal, the Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determinations on appeal. However, fully compliant notice was later issued in a December 2010 communication, and the claims were thereafter readjudicated in supplemental statements of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Moreover, as relevant to the Veteran's claim of entitlement to an earlier effective date for the award of a TDIU, the Board notes that such is essentially a downstream issue from the award of a TDIU and, per Rice, supra, part of his increased rating claims. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran was afforded proper VCAA notice as to his increased rating claims and his underlying claim of entitlement to a TDIU. Therefore, as the Veteran has appealed with respect to the initially effective date of the award of a TDIU, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (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 finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file and Virtual VA record contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment, and VA examinations reports. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. 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 the Veteran's claims. Additionally, in November 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the November 2012 hearing, the Veterans Law Judge enumerated the issues on appeal. Also, information was solicited regarding the reasons why the Veteran believed that he was entitled to service connection for his bilateral shoulder disability. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, as the hearing discussions revealed the possibility of pertinent private treatment records, the Board remanded these matters to obtain any outstanding records, and obtain medical opinions regarding the etiology of the Veteran's bilateral shoulder disability as well as when his service-connected disabilities rendered him unemployable. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the subsequent remand the Board issued to develop these claims. Finally, the Board finds that there was substantial compliance with the September 2010, October 2012, and February 2013 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that, in October 2012, the case was remanded solely to provide the Veteran a Board hearing, which was accomplished in November 2012. Additionally, in the other prior remands, the Board directed the AOJ to send VCAA notice informing the Veteran of the information and evidence necessary to substantiate a claim for secondary service connection. The AOJ was also directed to obtain any additional treatment records from Dr. Campo as well as additional VA treatment records. As noted above, the Veteran was sent additional VCAA notice addressing the secondary requirements in December 2010. Moreover, additional VA treatment records dated through September 2013 were associated with the Veteran's Virtual VA record. Most recently, in July 2013, the AOJ sent a letter to the Veteran requesting that he submit an authorization so that additional treatment records from Dr. Campo could be obtained. To date, the Veteran has not responded. The RO was also directed to afford the Veteran a VA examination to determine whether a bilateral shoulder disability was proximately due to or aggravated by his service-connected left knee disabilities and whether the Veteran was rendered unemployable due to his service-connected disabilities prior to May 29, 2009. The Veteran was afforded a VA examination with opinion in August 2013. As the VA examination with opinion was prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the opinion is adequate to adjudicate the Veteran's claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that there was substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104 (2008). The Board recognizes that the August 2013 examination with opinion did not address whether the Veteran had a shoulder disability that was directly related to service; however, the Board finds that such opinion is not necessary in the instant case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the Veteran's service treatment records are silent as to any shoulder problems. Moreover, as will be discussed below, the Veteran has not provided any lay evidence of any shoulder problems or injuries in service. Rather, he has claimed that these disabilities are secondary to his left knee disabilities. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the matter of direct service connection. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. 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 claim. 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). III. Service Connection for a Bilateral Shoulder Disability The Veteran is seeking service connection for a bilateral shoulder disability. Specifically, he has asserted that this disability is secondary to his service-connected left knee disabilities. In this regard, he has claimed that his bilateral shoulder disability is due to the need to use assistive devices for his left knee. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). As arthritis is one of the diseases listed at 38 C.F.R. § 3.309(a), the use of continuity of symptoms to establish service connection may be applied. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The evidence of record has been thoroughly reviewed. Service treatment records are silent with respect to any complaints, injuries or diagnoses pertaining to the shoulders. Post service private treatment records showed that in March 1997, the Veteran presented complaining of right shoulder pain. The assessment was osteoarthritis. A May 1997 x-ray showed spurs at the inferior aspect of the AC joint that was consistent with impingement syndrome. Follow up private treatment records dated in October 1997 and February 1998 showed that Veteran presented complaining of pain in both shoulders. An EMG study at that time revealed markedly severe median neuropathies at the wrist. A March 2000 VA treatment record again showed that the Veteran reported right shoulder pain. Subsequently, VA treatment records showed that the Veteran reported left shoulder pain in June 2003 for approximately 30 years. An October 2004 x-ray of the left shoulder showed extensive degenerative changes involving the acromioclavicular joint as well as the glenohumeral joint. Follow up VA treatment records continue to show a history of left shoulder degenerative joint disease. A July 2008 record again showed reports of right shoulder pain for approximately one month. Private treatment records dated in late 2008 also showed that the Veteran complained of radiating pain from his neck into his shoulders down his arms. An August 2008 EMG showed that the Veteran had multiple cervical radiculopathies. Another August 2008 private record again showed complaints of right shoulder stiffness. At the November 2012 Board hearing, the Veteran testified that the his left knee disability caused his gait to be altered which caused his back and shoulder to be misaligned. He reported using a cane and walker since about 2000 and his doctor had told him that the use of these devices has altered his posture. There had been no specific injuries to the shoulders; rather, his disability was primarily due to the way the Veteran had to walk because of his left knee disabilities. Given the Veteran's assertions, the Board remanded this case for a VA examination with opinion, which was done in August 2013. The claims file was reviewed. The Veteran reported developing bilateral shoulder aching in the 1990s in the top of the shoulders and was told by a private orthopedist that he had arthritis all over. A contemporaneous MRI showed degenerative changes of both shoulders. After examining the Veteran, the examiner found that the Veteran's bilateral shoulder disability was not secondary to his left knee disabilities. The examiner noted that the Veteran reported that his shoulder pain was due to pressure from using a cane and walker; however, the examiner observed that the Veteran reported shoulder pain in 1995, which was years prior to the documented use of a cane in 2008. Use of cane and walker were first noted during rehabilitation following neck surgery in 2008. As the Veteran's bilateral shoulder pain developed years prior to his use of assistive devices, they were unlikely related to his service-connected left knee condition. Further, there was no medical evidence to suggest permanent aggravation of shoulder arthritis with ongoing use of the cane. The examiner determined that the Veteran had established shoulder arthritis prior to regular use of cane. The examiner also observed limited use of the cane given the Veteran's sedentary lifestyle and minimal walking. Again, the VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VA examiner provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the VA examiner's opinion. Initially, the Board observes that the Veteran has experienced shoulder/arm symptoms associated with his service-connected cervical spine disability, which has been diagnosed as cervical radiculopathies. As these are neurological abnormalities associated with the Veteran's cervical spine disability, which is not currently on appeal, the Board's decision does not address these symptoms. Rather, this decision only addresses any separate musculoskeletal disabilities of the shoulders, including degenerative changes. The Board observes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Starting first with presumptive service connection, the Board notes that, although degenerative changes have been observed, there is no evidence of arthritis within one year of service. In fact, the first medical evidence of any shoulder problems is in approximately 1997, over 40 years after the Veteran's discharge from service. As such, an award of service connection on a presumptive basis for chronic disease is precluded. 38 C.F.R. §§ 3.307, 3.309. Moreover, as there is no evidence of any shoulder problems in service or for many years after service, the Board also must find that service connection for a bilateral shoulder disability on a direct basis is not warranted. Service treatment records are completely silent with respect to any shoulder problems. Again, the first medical evidence of any shoulder problems is dated in 1997. Further, there is no competent medical evidence linking any current shoulder disabilities to active service. The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report any in-service injury, as well as pertinent symptomatology since service. However, the Veteran has not reported any injuries to or problems with the shoulders in service or described any pertinent symptomatology since service. See Walker, supra. Rather, he has primarily asserted that his shoulder disabilities are secondary to his service-connected left knee disabilities. Moreover, the Veteran is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (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). As such, service connection on a direct basis is not warranted. The Board now turns to whether the claim may be allowed on a secondary basis. On this question, the August 2013 VA examination clearly found that the Veteran's bilateral shoulder disability was not caused by or aggravated by his service-connected left knee disabilities given that his shoulder disabilities were present many years prior to the Veteran's use of any assistive devices. As discussed above, the Board finds the examination to be sufficient for appellate review and of high probative value. Moreover, no other evidence of record refutes the examiner's opinion. The Board has also considered the Veteran's statements that he believes his bilateral shoulder disability is due to his service-connected left knee disabilities. However, while he can report observable symptoms pertaining to the shoulders, again, given that the Veteran does not have any special medical expertise, the Board must find that he is not competent to give a medical opinion as to whether a bilateral shoulder disability is secondary to his service-connected left knee disabilities. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Thus, based on the highly probative August 2013 VA examination with opinion, service connection is also not warranted on a secondary basis. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral shoulder disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). IV. TDIU The Veteran is also seeking entitlement to TDIU prior to May 29, 2009. By way of background, a TDIU has been granted, effective May 29, 2009. However, as noted in the Board's prior February 2013 remand, the Veteran has alleged that his service-connected left knee disabilities rendered him unable to work and his claims for increased ratings had been pending since May 31, 2007. As such, the Board previously determined that the issue of entitlement to a TDIU prior to May 29, 2009, was before the Board pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Prior to May 29, 2009, the Veteran was service-connected for status post fracture left tibial tubercle with osteoarthritis changes and chronic chondromalacia of he knee, evaluated as 30 percent disabling; recurrent subluxation of the left knee, evaluated as 30 percent disabling; tender scar of the left knee, evaluated as 10 percent disabling; right knee condition, evaluated as 10 percent disabling; left thigh atrophy, evaluated as 10 percent disabling; and residuals of mumps including erectile dysfunction and testicular atrophy, evaluated as noncompensable. Notably, he was not service-connected for degenerative disc disease of the lumbar spine or residuals of cervical myelopathy, Brown-Sequard syndrome with quadriparesis, status post anterior discectomy, fusion, and plating at C3-C4 prior to May 29, 2009. As of May 31, 2007, his total combined rating was 70 percent. See 38 C.F.R. § 4.25. Although the Veteran met the requirements for a total combined rating of 70 percent, he still did not have one disability rated at 40 percent. Nevertheless, as his left knee disabilities with resulting scar are a common etiology, they may be considered one disability under 38 C.F.R. § 4.16(a). As such, when combining the Veteran's left knee disabilities, he had a 60 percent rating. In turn, the Veteran is found to have one disability rated at 40 percent or more with a combined rating of 70 percent, effective May 31, 2007. In sum, the Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU prior to May 29, 2009. 38 C.F.R. § 4.16(a). Therefore, the remaining inquiry is whether such disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation prior to May 29, 2009. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The Veteran filed a claim for TDIU on May 29, 2009. In his application, he indicated that he last worked in 2008 as a competitive courier for approximately 25 hours per week earning $2000 per month. Importantly, at that same time, he also filed claims for service connection for cervical and low back disabilities. In support of his initial claim, the Veteran submitted a March 2009 private opinion that indicated that due to the Veteran's cervical disability, he was totally and permanently disabled from his job working for a courier service. A November 2009 VA examination also indicated that the Veteran would not be able to be successfully employed in any position that required walking or climbing due to his left and right knee disabilities. He would also be unable to perform any job that required standing or sitting for greater than 10 to 15 minutes due to his nonservice-connected cervical and low back conditions. Overall, the examiner opined that the Veteran had moderately severe functional impairment from these conditions. Another June 2010 private opinion concerning the knees and low back also indicated that the Veteran was unemployable since ambulation for any long periods of time bothered him and he could not stand for a long period of time. Moreover, when he sat in one position for a while, his legs started to cramp up and bother him as well as pain in the lower back. The record also includes two May 2011 VA examinations with opinions addressing the spine and left knee. The May 2011 spine examination report showed that examiner found that the Veteran was unable to be employed in his former occupation due to his cervical injury. Due to constant pain and limited range of motion, the examiner opined that the Veteran was unable to secure of follow substantially gainful occupation. Further, the examiner for the left knee also determined that the Veteran's service connected knee/tibia disability rendered him unable to secure or follow substantially gainful employment as he was unable to stand or sit for prolonged periods due to knee pain. Nevertheless, while these opinions showed that the Veteran was unemployable after the May 29, 2009 claim, many of these opinions were based on the severity of his cervical spine and low back disabilities for which he was not service-connected until that date. However, it was unclear whether he was unemployable prior to this date solely due to his other service-connected disabilities. As such, the Board remanded the claim to obtain a retrospective opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). An opinion was obtained in August 2013. The examiner observed that the Veteran was last employed in 2008 as a courier, working part time despite reported limitations due to his service-connected left knee/residuals. He stopped working following a fall on the job in 2008 with injury to his cervical spine for which he is currently service-connected. After reviewing the claims file, the examiner found that the evidence did not suggest that the Veteran was unemployable prior to May 29, 2009. He was, however, unable to work from the time of neck injury/surgery until he was discharged from rehab in 2009. In its November 2013 brief, the Veteran's representative argued that this opinion was insufficient because the examiner's opinion was contradictory as the examiner indicated that the Veteran was not unemployable, but then indicated that he was unable to work. However, the Board does not find any such contradiction. After reviewing the claims file and examining the Veteran, the examiner clearly found that the Veteran was not unemployable prior to May 29, 2009 due to his service-connected disabilities. Rather the examiner indicated that the Veteran was unable to work from 2008 until discharged from rehab in 2009 due to his neck injury, for which the Veteran was not service-connected at that time. Again, the VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VA examiner provided an opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the VA examiner's opinion. Thus, based on the highly probative August 2013 VA opinion, the Board must find that the Veteran was not unemployable prior to May 29, 2009 due to his service-connected disabilities at that time. The remaining medical evidence of record simply shows that the Veteran became unemployable as of May 29, 2009. This evidence also shows that the Veteran primarily became unemployable due to his cervical spine disability following an injury in 2008, which was not service-connected until May 29, 2009. In sum, the Veteran's service-connected disabilities did not render him unemployable until he was awarded service connection for his cervical spine and low back and then these disabilities in conjunction with his left knee disabilities rendered him unable to maintain substantially gainful employment. There is simply no competent medical evidence that the disabilities for which the Veteran was service-connected prior to May 29, 2009 rendered him unemployable. Importantly, the only medical opinion addressing this matter is against the claim. Furthermore, to the extent that the Veteran and/or his representative have attempted to establish the Veteran's entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that neither the Veteran nor her representative is shown to possess expertise in medical or vocational matters. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the lay assertions in this regard have no probative value. For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to May 25, 2009. In conclusion, the preponderance of the evidence is against entitlement to a TDIU due to service-connected disabilities prior to May 25, 2009. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b). ORDER The appeal pertaining to the issue of entitlement to a rating in excess of 30 percent for residuals of left tibial tubercle fracture with osteoarthritic changes and chronic chondromalacia of the knee is dismissed. The appeal pertaining to the issue of entitlement to a rating in excess of 30 percent for recurrent subluxation of the left knee is dismissed. The appeal pertaining to the issue of entitlement to service connection for diabetes mellitus, type II, is dismissed The appeal pertaining to the issue of entitlement to service connection for a bilateral eye disorder is dismissed. The appeal pertaining to the issue of entitlement to service connection for bilateral carpal tunnel syndrome is dismissed. The appeal pertaining to the issue of entitlement to service connection for gout is dismissed. The appeal pertaining to the issue of entitlement to service connection for hypertension is dismissed. The appeal pertaining to the issue of entitlement to service connection for hypertensive heart disease is dismissed. The appeal pertaining to the issue of entitlement to service connection for osteomyelitis is dismissed. Service connection for a bilateral shoulder disability is denied. A TDIU prior to May 25, 2009, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs