Citation Nr: 1510770 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 07-22 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Eric A. Gang, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to December 1978 and from June 1979 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. This case was remanded by the Board in January 2010 and April 2011. In December 2012, the Board sought an opinion from the Veterans Health Administration (VHA), which was received in January 2013. See 38 C.F.R. § 20.901. In a May 2013 decision, the Board denied the Veteran's claims for service connection for his shoulder and knee disabilities. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2014, the parties filed a Joint Motion for Remand (JMR), asking the Court to vacate the May 2013 Board decision, and to remand the issue to the Board for additional consideration. The Court granted the JMR in July 2014, and the claim has returned to the Board. The record reflects that appellant has been previously represented by t the Alabama Department of Veterans Affairs. See November 2005 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative). In October 2014 2014, the Board received a VA Form 21-22a (Appointment of Individual as Claimant's Representative) appointing private attorney Eric A. Gang as his new representative. The Board recognizes the change in representation. In January 2015, the Veteran's attorney submitted additional evidence and argument in support of his claim, including specifically a medical evaluation and opinion from a private provider, J.N., P.A.-C., M.S., along with a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2014). FINDINGS OF FACT 1. The Veteran's right knee disorder, to include degenerative arthritis of the right knee, was incurred in, or caused by, his military service. 2. The Veteran's left knee disorder, to include chronic left knee strain, was incurred in, or caused by, his military service. 3. The Veteran's right shoulder disability, to include degenerative arthritis and impingement of the right shoulder, was incurred in, or caused by, his military service. 4. The Veteran's left shoulder disability, to include rotator cuff tendinitis and impingement of the left shoulder, was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, to include degenerative arthritis of the right knee, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for a left knee disability, to include chronic left knee strain, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 3. The criteria for service connection for a right shoulder disability, to include degenerative arthritis and impingement of the right shoulder, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 4. The criteria for service connection for a left shoulder disability, to include rotator cuff tendinitis and impingement of the left shoulder, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under VA law, service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) the 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition, such as arthritis, when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection for certain diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has currently diagnosed disabilities of the right and left knees and the right and left shoulders. See, e.g., August 2010 VA Examination Report (diagnosing: (1) bilateral rotator cuff insufficiency, (2) mild to moderate degenerative arthrosis of the right shoulder, (3) mild degenerative arthrosis of the right knee, and (4) chronic left knee strain); February 2006 Alabama Sports Medicine and Orthopaedic Center Clinic Note (reflecting diagnoses of (1) right shoulder glenohumeral osteoarthritis with some impingement signs, and (2) rotator cuff tendinitis and impingement of the left shoulder). Although the service treatment records do not show treatment for persistent knee or shoulder complaints, the Board finds that the Veteran is competent to report that he experienced pain in his knees and shoulders during service that progressed to the point that he sought treatment several years following his separation. See October 2009 Board Hearing Transcript (testifying that he experienced pain in his shoulders and knees during service but that he did not seek any treatment for the pain because it did not "get that bad" until after his discharge, when he sought treatment for his knee and shoulder disorders in approximately 1998 or 1999); March 2006 Statement of R.A.B., Sr. (noting the Veteran's dedicated service and appointment as Master Physical Fitness Trainer for the Headquarters and its subordinate units (2,800 soldiers), and reporting that the Veteran was required to perform physical fitness training, to also assist the other soldiers with their training, and to conduct exhaustive field training exercises as well as other physical fitness exercises (such as heavy lifting, short sprints, etc.) in combat gear). See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds the Veteran to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). This report of a continuity of symptomatology suggests a link between his current knee and shoulder disorders and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Furthermore, in a January 2015 Statement, J.N., P.A.-C., M.S., opined that the Veteran's diagnosed bilateral shoulder and bilateral knee conditions had their clinical onset during his active service and were directly related to the Veteran's "in-service duties as a physical fitness trainer." This opinion is well-supported by sound reasoning, a full review of the evidence of record, citation to the relevant medical principles and treatise evidence in support of the conclusions reached, and references to the pertinent medical and lay evidence relied upon in forming the etiological determination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no probative evidence of record to the contrary. In this regard, although negative etiological opinions were provided by the August 2010 VA examiner, with an addendum opinion in April 2012, and by the January 2013 VHA examiner, those opinions are based primarily upon the lack of documentation of knee or shoulder complaints in the Veteran's service treatment records and fail to account for the Veteran's lay assertions of onset and continuity of symptomatology. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a medical opinion was inadequate where medical examiner impermissibly ignored the Veteran's lay assertions that he had sustained a back injury during service). See also July 2014 Joint Motion for Remand (determining that the January 2013 VHA opinion was inadequate as it was not supported by sufficient rationale). Thus, considering the Veteran's competent and credible reports of experiencing bilateral knee and shoulder pain during and since his active service, given the January 2015 medical opinion that the Veteran's current bilateral knee and bilateral shoulder disabilities had their clinical onset during active duty, and in the absence of any probative medical evidence to the contrary, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence supports a grant of entitlement to service connection for disabilities of the right and left knees and of the right and left shoulders. 38 C.F.R. §§ 3.102, 3.303. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for a right knee disorder, to include degenerative arthritis of the right knee, is granted. Entitlement to service connection for a left knee disorder, to include chronic left knee strain, is granted. Entitlement to service connection for a right shoulder disability, to include degenerative arthritis and impingement of the right shoulder, is granted. Entitlement to service connection for a left shoulder disability, to include rotator cuff tendinitis and impingement of the left shoulder, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs