Citation Nr: 1607644 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 12-30 591A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for arthritis of the knees. 2. Entitlement to service connection for arthritis of the shoulders. 3. Entitlement to service connection for arthritis of the elbows. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1941 to September 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the case was subsequently transferred to the RO in Waco, Texas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A chronic bilateral knee disability was not manifest during service and arthritis was not manifest within one year of separation. Knee pathology is not attributable to service. 2. A chronic bilateral shoulder disability was not manifest during service and arthritis was not manifest within one year of separation. Shoulder pathology is not attributable to service. 3. A chronic bilateral elbow disability was not manifest during service and arthritis was not manifest within one year of separation. Elbow pathology is not attributable to service. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred or aggravated by service and arthritis of the knees may not be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. A bilateral shoulder disability was not incurred or aggravated by service and arthritis of the shoulders may not be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 3. A bilateral elbow disability was not incurred or aggravated by service and arthritis of the elbows may not be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's 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 2014); 38 C.F.R. § 3.159 (2015). The RO provided the required notice in a letter sent to the Veteran in April 2011. This letter informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. The April 2011 letter informed the Veteran of the laws regarding the assignment of effective dates and disability ratings. The case was last adjudicated in a June 2013 Supplemental Statement of the Case. Regarding the duty to assist, the record contains the Veteran's service treatment records, VA medical records, VA examination reports, and statements from the Veteran's representative. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed 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 claim. The Board remanded the appeal in March 2013 in order for VA to obtain treatment records from the Amarillo VA Medical Center from 1994 to the present based on the Veteran's report that he had treated at this facility during this timeframe. Records dated September 1995 to the present were obtained. The RO informed the Veteran that records from January 1994 to September 1995 were unavailable. The Board finds that there was substantial compliance with the prior Board 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). The Veteran was not afforded a VA examination in connection to his claims for bilateral knee, shoulder, and elbow disabilities. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As discussed in more detail below, the evidence of record is against a finding that an in-service event, injury or disease occurred during the Veteran's period of active duty that would support a finding of incurrence or aggravation. As such, the second McClendon requirement is not satisfied, and a VA examination is not required. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (finding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Laws and Regulations Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For VA purposes, chronic diseases are listed in 38 C.F.R. § 3.309(a) and include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Moreover, in certain cases, where a chronic disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Arthritis of the Knees The Veteran contends that he developed a bilateral knee disability in service. The Veteran's discharge from active duty lists several combat campaigns during World War II in the Western Pacific. As such, 38 U.S.C.A. § 1154(b) potentially applies to his claim. Section 1154(b) has been interpreted to reduce the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."). Section 1154(b) addresses the combat Veteran's ability to allege that an event occurred in service while engaging in combat. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat Veterans, "The Secretary shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2015). Here, the Veteran has simply claimed service connection for arthritis. The Veteran filed a claim in February 2011, noting arthritis as a disability incurred in service. The RO contacted the Veteran on April 2011, requesting he specify for which joints he was claiming service connection. The Veteran's son informed the RO that the Veteran had widespread arthritis and that the Veteran's claim for service connection related to his knees, shoulders, and elbows. Ultimately, the Veteran has not provided any lay statements that relate his arthritis of the knees to an in-service disease or injury, to include any disease or injury that may have occurred during combat. Therefore, the Board finds that 38 U.S.C.A. § 1154(b) does not apply to his claim because the Veteran has not asserted that his claimed disorders are related to combat and such theory is not otherwise raised by the record. The service treatment records do not contain complaints of right or left knee pain, treatment for a right or left knee injury, or any other evidence of an in-service event, injury or disease of the right or left knee, to include arthritis of the right or left knee. A September 1945 separation examination indicated that there were no defects present and the Veteran was found physically qualified for discharge with no need for medical care or hospitalization. The Veteran reported receiving care from the Amarillo VAMC for his bilateral knee disability in approximately 1994. Records from the January 1994 to September 1995 were not available according to a May 2013 response from the Amarillo VAMC. The Veteran was informed of this determination in June 2013. Records from the VAMC in Amarillo dated September 1995 do not contain any evidence of an in-service injury of the bilateral knee, to include reports of an onset of arthritis in the right or left knee in service or within one year of discharge. A July 1997 VA treatment note indicates that physical examination of the Veteran's musculoskeletal system revealed active and passive range of motion was good in all extremities and the spine is normal alignment. Records from the VAMC in Amarillo dated September 1998 show the Veteran was noted to have mild crepitus in the right and left knee with a mild positive apprehension test. A March 2003 from the VAMC in Amarillo shows a rheumatologic examination revealed no joint pain, swelling, lesions, decreased range of motion, numbness, or tingling. A January 2008 x-ray of the Veteran's right knee indicated the presence of prominent spurring of the articular surfaces, most severe involving the patellofemoral joint. No significant medical or lateral joint space narrowing. NO acute bony abnormality or joint effusion. The assessment was "major abnormality, no attention needed." The Veteran was noted to have degenerative arthritis of the right knee in a later January 2008 treatment note. A July 2010 VA treatment note regarding the left knee indicates that the Veteran had fallen six weeks prior. The examination revealed a good range of motion, no tenderness, swelling, and the symptoms seemed to habe resolved. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report observing symptoms of bilateral knee pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes that there is no objective evidence of an in-service injury or disease of the right or left knee. Further, the Veteran has not provided any lay statements that relate his arthritis of the knees to an in-service disease or injury. Additionally, there is no evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service aside from the Veteran's unsupported general assertions. Here, arthritis was not noted during service. In addition, there is no evidence of arthritis within one year from the date of termination of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). To the extent that there are lay opinions from the Veteran linking any bilateral knee disabilities to an in-service injury, the Board finds that the probative value of the general lay assertions are outweighed by the clinical evidence showing a post-service onset. The Board finds any assertion of on-going symptoms since service is far less credible and probative than the service treatment record showing a lack of treatment for a knee disability, the report that he had no defects at separation, and the post-service clinical records showing a lack of treatment for many years after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Based upon the more probative evidence of record, the Board concludes that a bilateral knee disability was not manifest during service, or to a compensable degree within one year of service, and that such processes are unrelated to service. A preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Arthritis of the Shoulders The Veteran contends that he developed a bilateral knee disability in service. The Veteran's discharge from active duty lists several combat campaigns during World War II in the Western Pacific. As such, 38 U.S.C.A. § 1154(b) potentially applies to his claim. However, since there is no assertion that the disorder is related to combat and the evidence does not raise this theory, the provisions of 1154(b) are not applicable in this case. Here, the Veteran has simply claimed service connection for arthritis. The Veteran filed a claim in February 2011, noting arthritis as a disability incurred in service. The RO contacted the Veteran on April 2011, requesting he specify for which joints he was claiming service connection. The Veteran's son informed the RO that the Veteran had widespread arthritis and that the Veteran's claim for service connection related to his knees, shoulders, and elbows. Ultimately, the Veteran has not provided any lay statements that relate his arthritis of the shoulders to an in-service disease or injury, to include any disease or injury that may have occurred during combat. Therefore, the Board finds that 38 U.S.C.A. § 1154(b) does not apply to his claim. The service treatment records do not contain complaints of right or left shoulder pain, treatment for a right or left shoulder injury, or any other evidence of an in-service event, injury or disease of the right or left shoulder, to include arthritis of the right or left shoulder. A September 1945 separation examination indicated that there were no defects present and the Veteran was found physically qualified for discharge with no need for medical care or hospitalization. The Veteran reported receiving care from the Amarillo VAMC for his bilateral shoulder disability in approximately 1994. Records from the January 1994 to September 1995 were not available according to a May 2013 response from the Amarillo VAMC. The Veteran was informed of this determination in June 2013. Records from the VAMC in Amarillo dated September 1995 do not contain any evidence of an in-service injury of the bilateral shoulder, to include reports of an onset of arthritis in the right or left shoulder in service or within one year of discharge. A July 1997 VA treatment note indicates that physical examination of the Veteran's musculoskeletal system revealed active and passive range of motion was good in all extremities and the spine is normal alignment. Records from the VAMC in Amarillo dated August 1998 show the Veteran reported a recent onset of pain in his hands and both wrists, as well as a long history of pain in his shoulders. The assessment was inflammatory arthritis. Records from the VAMC in Amarillo dated August 2000 show the Veteran reported a history of right shoulder surgery at VA for a rotator cuff tear. The Veteran reported that he did not recall any incident leading to his shoulder discomfort. The assessment was right shoulder bursitis. A February 2001 treatment note from the VAMC in Amarillo shows the Veteran reported pain in both shoulders. A later February 2001 treatment note indicates that the assessment on follow-up was bilateral bursitis of the shoulders. An August 2002 treatment note from the VAMC in Amarillo shows the Veteran was assessed based on his complaints of bilateral shoulder pain. The assessment was tendonitis of the bilateral shoulders. A treatment record dated November 2009 notes the Veteran underwent right shoulder rotator cuff surgery 15 years ago. The treating physician noted that the Veteran reported no specific injury to the right shoulder prior to this surgery. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report observing symptoms of shoulder pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes that there is no evidence of an in-service injury or disease of the right or left shoulder. Further, the Veteran has not provided any lay statements that relate his arthritis of the shoulders to an in-service disease or injury, to include any disease or injury that may have occurred during combat. Additionally, there is no evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service aside from the Veteran's unsupported general assertions. Here, arthritis was not noted during service. In addition, there is no evidence of arthritis manifest within one year from the date of termination of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). To the extent that there are lay opinions from the Veteran linking any bilateral shoulder disabilities to an in-service injury, the Board finds that the probative value of the general lay assertions are outweighed by the clinical evidence showing a post-service onset. The Board finds any assertion of on-going symptoms since service is far less credible and probative than the service treatment record showing a lack of treatment for a bilateral shoulder disability and the Veteran's August 2000 report regarding the onset of right shoulder pain that was not related to his active service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Based upon the more probative evidence of record, the Board concludes that a bilateral shoulder disability was not manifest during service, or to a compensable degree within one year of service, and that such processes are unrelated to service. A preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Arthritis of the Elbows The Veteran contends that he developed a bilateral elbow disability in service. The Veteran's discharge from active duty lists several combat campaigns during World War II in the Western Pacific. As such, 38 U.S.C.A. § 1154(b) potentially applies to his claim. Here, the Veteran has simply claimed service connection for arthritis. The Veteran filed a claim in February 2011, noting arthritis as a disability incurred in service. The RO contacted the Veteran on April 2011, requesting he specify for which joints he was claiming service connection. The Veteran's son informed the RO that the Veteran had widespread arthritis and that the Veteran's claim for service connection related to his knees, shoulders, and elbows. Ultimately, the Veteran has not provided any lay statements that relate his arthritis of the elbows to an in-service disease or injury, to include any disease or injury that may have occurred during combat. Therefore, the Board finds that 38 U.S.C.A. § 1154(b) does not apply to his claim.. The service treatment records do not contain complaints of right or left elbow pain, treatment for a right or left knee elbow, or any other evidence of an in-service event, injury or disease of the right or left elbow, to include arthritis of the right or left elbow. A September 1945 separation examination indicated that there were no defects present and the Veteran was found physically qualified for discharge with no need for medical care or hospitalization. The Veteran reported receiving care from the Amarillo VAMC for his bilateral elbow disability in approximately 1994. Records from the January 1994 to September 1995 were not available according to a May 2013 response from the Amarillo VAMC. The Veteran was informed of this determination in June 2013. Records from the VAMC in Amarillo dated September 1995 do not contain any evidence of an in-service injury of the bilateral elbow, to include reports of an onset of arthritis in the right or left elbow in service or within one year of discharge. A July 1997 VA treatment note indicates that physical examination of the Veteran's musculoskeletal system revealed active and passive range of motion was good in all extremities and the spine is normal alignment. A May 1998 VA treatment from the VAMC in Amarillo notes that the Veteran had fluid on his left elbow. The Veteran reported that his left elbow was swollen and painful, the Veteran's left elbow was aspirated and he was instructed on home medication and an ACE wrap was applied to the left elbow. Records from the VAMC in Amarillo dated September 1998 show the Veteran was noted to normal elbows on an examination for osteoarthritis and inflammatory arthritis. A March 2003 from the VAMC in Amarillo shows a rheumatologic examination revealed no joint pain, swelling, lesions, decreased range of motion, numbness, or tingling. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report observing symptoms of bilateral elbow pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes that there is no objective clinical evidence of an in-service injury of disease of the right or left elbow. Further, the Veteran has not provided any lay statements that relate his arthritis of the elbows to an in-service disease or injury, to include any disease or injury that may have occurred during combat. Additionally, there is no evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service aside from the Veteran's unsupported general assertions. There is no evidence of arthritis manifest to a degree of 10 percent within one year from the date of termination of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). To the extent that there are lay opinions from the Veteran linking any bilateral elbow disabilities to an in-service injury, the Board finds that the probative value of the general lay assertions are outweighed by the clinical evidence showing a post-service onset of complaints of elbow pain. The Board finds any assertion of on-going symptoms since service is far less credible and probative than the service treatment record showing a lack of treatment for a bilateral elbow disability and the post-service clinical records showing a lack of treatment for many years after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Based upon the more probative evidence of record, the Board concludes that a bilateral elbow disability was not manifest during service, or to a compensable degree within one year of service, and that such processes are unrelated to service. A preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for arthritis of the knees is denied. Service connection for arthritis of the shoulders is denied. Service connection for arthritis of the elbows is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs