Citation Nr: 1525277 Decision Date: 06/12/15 Archive Date: 06/19/15 DOCKET NO. 13-36 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Marc Whitehead, Attorney ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to November 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (RO). FINDINGS OF FACT 1. A left shoulder labral tear was incurred in service. 2. The Veteran is currently diagnosed with lumbar facet arthritis, discogenic type. 3. Lumbar spine pain symptoms were chronic in service and continuous since service separation. 4. The Veteran is currently diagnosed with arthritis in the left knee. 5. Left knee pain symptoms were chronic in service and continuous since service separation. 6. The Veteran does not have a current diagnosis related to an in-service head injury. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection a left shoulder labral tear have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar facet arthritis, discogenic type, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for left knee arthritis have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 4. The criteria for service connection for residuals of a head injury are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued April 2011 preadjudicatory notice to the Veteran which met the VCAA notice requirements. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes service treatment records, lay statements, private medical records, and VA examinations. The Veteran was afforded a VA examination in February 2012 and the examiner provided addendum opinions in August 2012. 38 C.F.R. § 3.159(c)(4) (2014). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate as it included an examination of the Veteran, contained a description of the history of the disabilities at issue; documented and considered the Veteran's symptoms; and identified current claimed disabilities based on the evidence of record. Because the Board is granting service connection for a left shoulder, lumbar spine, and left knee disability, the Board need not address the adequacy of the August 2012 VA opinions with regard to those disabilities. While a VA opinion was not rendered with respect to a claimed head injury, because no current disability was identified at the time of the February 2012 VA examination, and because the evidence of record, to include private treatment records and lay evidence, does not otherwise identify current residuals or a current diagnosis related to the Veteran's in-service head injury, the Board finds that a medical opinion is not necessary for deposition of that claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). A labral tear and claimed head injury are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to those claims. Walker, supra. Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service treatment records reflect treatment for the left shoulder, lumbar spine, left knee, and head in service. The Veteran and his representative contend, in a December 2013 statement, that back, left shoulder, and left knee disabilities were chronic in service and that the in-service injuries still required treatment. The Veteran and his representative contend that a head injury was treated in service and should be service-connected. After reviewing all the evidence of record, including the Veteran's statements, the Board finds, resolving all reasonable doubt in the Veteran's favor, that a left shoulder labral tear was incurred in service. A November 2012 MRI shows that the Veteran has a currently diagnosed labral tear in the left shoulder with multiple para labral cysts along the course of the tear. The Board finds that a left shoulder injury was noted in service treatment records with continued left shoulder complaints in service. Service treatment records show that the Veteran was treated for a left shoulder strain in August 2000, and was seen again in September 2000 for unresolved left shoulder strain. A March 2004 report of medical history reflects a painful left shoulder. The Veteran explained in an associated physical examination report that that he had a torn rotator cuff in 2000. The Veteran continued to report pain associated with a left rotator cuff in a January 2005 post deployment examination. An October 2012 private treatment report shows that the Veteran was seen for left shoulder pain which reportedly had been bothering him for 12 years. The Veteran reported that he began having pain in the shoulder while he was doing some labor in the Navy. He reported that an MRI was not done in service, but reported that he was told that he had a rotator cuff tear. He reported that his shoulder had become more of a problem in the last few months. The Board finds that the Veteran is credible in identifying left shoulder pain beginning in service, and finds that he is credible in reporting that he was told that it was a rotator cuff tear in service given his self-report of having a rotator cuff tear on a January 2005 post deployment examination and March 2004 physical examination report. A February 2012 VA examiner diagnosed the Veteran with a left shoulder strain. While the VA examiner opined in August 2012 that left shoulder strain was less likely than not incurred in or caused by service, reasoning that left shoulder strain was brought on by heavy lifting and was a situational condition, the VA examiner did not adequately address the Veteran's continued left shoulder complaints in service in 2004 and 2005 after his initial 2000 injury, his report of a 12-year history of shoulder problems shown in private treatment records, and MRI evidence of a labral tear with the formation of para labral cysts along the tear. Accordingly, the Board finds that the August 2012 VA opinion is not probative in this case. The Board finds that the weight of the evidence shows that the Veteran injured his left shoulder in service, that he continued to have left shoulder pain in service and post-service, and was eventually diagnosed by MRI with a labral tear. Resolving reasonable doubt in favor of the Veteran, the Board finds that a left shoulder labral tear, initially diagnosed as left shoulder strain or a left rotator cuff tear, was incurred in service. After reviewing all the lay and medical evidence, the Board finds, resolving all reasonable doubt in the Veteran's favor, that lumbar facet arthritis, discogenic type, was incurred in service. The Board finds that low back pain symptoms were chronic in service. Service treatment records show that the Veteran was treated for lumbar strain in December 2000. He stated, at the time, that he began feeling lumbar back pain on the right side after picking up a washer. A March 2004 report of medical history reflects recurrent back pain or back problems, while an associated physical examination report shows that the Veteran reported having lumbar strain in approximately 2001. The Veteran was treated, again, for low back pain in April 2005, and twice in October 2005 when he assessed with chronic lumbar strain, aggravated with recent lifting. Notably, this was one month prior to service separation. The Board finds that the evidence is, at least in equipoise, as to whether the Veteran experienced continuous symptoms of low back pain after service. Private treatment records show that the Veteran was seen post-service for back pain in March 2008. An August 2008 MRI shows that the Veteran was diagnosed with a small right posterolateral protrusion of the L4-L5 disc. In February 2009, the Veteran was diagnosed with lumbar facet arthritis, discogenic type. Private treatment records reflect continued treatment for back pain in 2011 and 2012. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran experienced continuous symptoms of low back pain after service separation While a VA examiner opined in August 2012 that lumbar strain was less likely than not incurred in or caused by service, reasoning that lumbar strain was brought on by lifting, a situational condition or activity, he did not adequately address evidence showing that low back complaints in service were chronic. Moreover, while a current disc bulge was noted by the VA examiner, he did not provide adequate reasons or bases for finding that such a condition was "benign" when private treatment records show that the Veteran was referred for an MRI because he had back pain associated with the later identified disc bulge. The VA examiner also did not adequately address the February 2009 diagnosis of lumbar facet arthritis. Accordingly, the Board finds that the August 2012 VA opinion is not probative in this case. The Board finds that low back symptoms were first noted in service, were chronic in service, and resolving reasonable doubt in favor of the Veteran, continuity of such symptoms have been shown after service such that presumptive service connection is warranted under the provisions of 38 C.F.R. § 3.303(b). After reviewing all the lay and medical evidence, the Board finds, resolving all reasonable doubt in the Veteran's favor, that left knee arthritis was incurred in service. The Board finds that left knee pain symptoms were chronic in service. Service treatment records show that the Veteran was treated for left knee pain in December 2001, one month after having sustained blunt trauma to the left knee. X-rays were within normal limits and the Veteran was assessed with a soft tissue injury to the knee. Service treatment records reflect continued treatment for left knee pain, stemming from the initial December 2001 injury. The Veteran was treated for the left knee in April 2002, May 2002, and June 2002, when he assessed with patella femoral syndrome. A March 2004 report of medical history reflects knee trouble, while the physical examination report shows that the Veteran explained that he had chronic knee pain. The Veteran also identified knee pain on a January 2005 post deployment examination. The Board finds that the evidence is, at least in equipoise, as to whether the Veteran experienced continuous symptoms of left knee pain after service. Private treatment records reflect complaints related to the right knee, but not the left knee post-service. However, the February 2012 VA examination diagnosed the Veteran with left knee arthritis based on x-ray evidence showing minimal medial compartment narrowing. In a December 2013 statement, the Veteran and his representative indicated that the Veteran continued to have left knee complaints post-service. A VA examiner opined in August 2012 that left knee arthritis was less likely than not incurred in or caused by service. The VA examiner reasoned that degenerative arthritis was most likely due to the biology of the Veteran, and that patellofemoral syndrome was an overuse issue which typically resolved with decrease of activity. The Board finds, however, that the VA examiner did not adequately address evidence showing that left complaints in service were chronic with at least six months of treatment after a left knee injury from December 2001 to June 2002, and with continued complaints of chronic knee pain in March 2004 and 2005. Nor did the VA examiner address whether the Veteran's injury or overuse of the knee in service, nonetheless, contributed to left knee arthritis. Accordingly, the Board finds that the August 2012 VA opinion is of little probative value. The weight of the evidence shows that left knee pain symptoms were chronic in service and the Veteran has currently diagnosed left knee arthritis. The Veteran additionally identified continued left knee complaints in a December 2013 statement. 38 C.F.R. § 3.303(b) provides that with a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. In this case, no intercurrent causes have been identified for the development of left knee arthritis. The Board finds that the weight of the evidence shows that left knee pain symptoms were noted in service, were chronic in service, and the evidence is at least in equipoise as to whether left knee symptoms were continuous after service separation. Therefore, resolving reasonable doubt in the Veteran's favor the criteria, for the presumptive provision of 38 C.F.R. § 3.303(b) have been met, and the Board finds that service connection left knee arthritis is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran and his representative contend December 2013 statement that the Veteran was treated for a head injury in service; therefore, service connection is warranted. Service treatment records show that the Veteran was treated in November 2005 for a laceration to the head. At the time, the Veteran reported that he was coming up a ladder well and hit his head. The laceration was treated with a staple. Service treatment records show that one week later in November 2005, the staple was removed from front of head, and the Veteran was instructed to allow the scab fall by itself. The Board finds, however, that the Veteran does not have a current diagnosis related to the in-service head injury. A February 2012 VA examination described the injury in service, but shows that the head injury resolved with no sequale. There were no symptoms of head trauma and no traumatic brain injury was identified during the VA examination. The Veteran has not otherwise provided lay evidence identifying current residuals, treatment, or diagnoses related to his in-service head injury, nor has any treatment for residuals of a head injury been identified in private treatment records. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the instant case, there is no current medical evidence of a disability related to the Veteran's in-service head injury. Accordingly, service connection for residuals of a head injury is denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a left shoulder labral tear is granted. Service connection for lumbar facet arthritis, discogenic type is granted. Service connection for left knee arthritis is granted. Service connection for residuals of a head injury is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs