Citation Nr: 1756045 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 16-16 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from June 1947 to June 1950 and from March 1951 to January 1958. These claims come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in September 2016. A transcript of that hearing is of record. These issues were remanded in December 2016, with appeals for entitlement to service connection for bilateral hearing loss and tinnitus. Service connection for bilateral hearing loss and tinnitus was established in December 2016 and May 2017 rating decisions and those claims are no longer before the Board. FINDINGS OF FACT 1. The claimed bilateral knee disability is not shown to be due to, or etiologically related to, any event, disease, or injury incurred in service. 2. The claimed right shoulder disability is not shown to be due to, or etiologically related to, any event, disease, or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2017); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Generally, to prevail on a claim for service connection, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, are presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Knee and Right Shoulder Disabilities The Veteran has claimed that bilateral knee and right shoulder disabilities are due to an injury he incurred during active service. Specifically, the Veteran asserts that he incurred an injury to the right shoulder and knees during active service when he was tossed into a bulkhead and fell. The Board finds, that a review of all competent medical evidence, to include service medical record, VA treatment records, and a VA examination, shows that even considering the claimed in-service injuries, the current claimed disabilities are not the result of active service. Therefore, service connection is not warranted for the claimed bilateral knee or right shoulder disabilities, and the claims must be denied. At a February 2017 VA examination, the VA examiner noted review of the service medical records, post-service medical history, and the entire claims file. The examiner also documented the Veteran's claimed injury or incident during active service which the Veteran believed caused the current disabilities of the knees and right shoulder. Upon examination, the examiner noted a diagnosis of a right shoulder strain and bilateral osteoarthritis of both knees. In the VA examiner's report, the examiner checked the box for a left shoulder strain, versus the claimed right shoulder condition. However, a review of the remaining parts of the examination demonstrates no abnormalities with the Veteran's left shoulder, to include range of motion, and the Board finds the evidence indicates that was most likely as typographical error. The Veteran's right shoulder during range of motion testing demonstrated extensive decrease in every aspect of the range of motion, unlike the left shoulder. Therefore, Board must conclude that the diagnosis of a left shoulder disability, as opposed to a right shoulder condition was a typographical error, considering the remaining portions of the report. Acevado v. Shinseki, 25 Vet. App. 286 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As a result, the Board concludes that the February 2017 VA examinations report for the right shoulder indicates a current disability of a right shoulder strain. However, when providing an opinion, the VA examiner ultimately opined that neither of the claimed disabilities was etiologically connected to any aspect of the Veteran's active service, to include the claimed in-service injury. The examiner noted explicitly the lack of any notes in the service medical records or post-service medical records of any injury to the right shoulder or knees. The examiner opined that if the Veteran incurred the type of injury to the severity such that it was etiologically related to the current disabilities, that insurance or injury would have required medical attention, and therefore would have been recorded in the service medical records. Therefore, as there was no indication of medical treatment for any injuries during service relating to the right shoulder or bilateral knees, the examiner concluded that it was less likely than not that either of the claimed disabilities were etiologically related to active service. Additionally, the examiner noted that the Veteran's disabilities were consistent with aging, and quite prominent in the vast majority of people the Veteran's age. The Board finds that the VA examination of record to have high probative value and to be dispositive of the claims for service connection for a right shoulder and bilateral knee disabilities. The examination report demonstrates a complete review of the available medical evidence of record, and provides a comprehensive analysis of the Veteran's disabilities, with competent and adequate rationales from medical treatises and authorities. A further review of the evidence of record, to include the service medical records and post-service medical records shows no additional findings that speak to the specific etiology of the claimed disabilities. The examiner provided the opinion and supported the opinion with an adequate analysis the Veteran's medical history and medical literature. The Board acknowledges that the Veteran has consistently contended that his right shoulder and bilateral knees disabilities began when he hurt his shoulder and knees when he was tossed into a bulkhead and fell during service. He asserts that the pain has continued until the present since that injury. The Board finds that the Veteran's lay statement with regard to both his knees and right shoulder to be credible, however, not competent. The Board acknowledges the Veteran's assertions that his claimed in-service incident or injury caused the current disabilities. However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis or etiological opinion for complex disabilities dealing with orthopedic disabilities. Layno v. Brown, 6 Vet. App. 465 (1994). Here, while the Veteran may speak to the fact that he had some pain or loss of range of motion in and after service in the right shoulder or knees, he is not competent to speak to a diagnosis of a specific disability, or to the etiology of any disability. That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must place the most probative value on the opinion of the medical professional who has the appropriate training and education to diagnose and assess the etiology of the disabilities. The examiner found that if the injuries had been of the severity of cause a current disability, they would have required medical attention during service. Consequently, as no injuries were noted in the service medical records, in light of the medical evidence, the Board must find the medical analysis from the VA examiner more probative. Therefore, the Board finds that service connection is not warranted for any of the disabilities claimed by the Veteran, to include of the right shoulder or his bilateral knees. A review of the post-service medical records shows no complaint or treatment of the disabilities claimed for the right shoulder or bilateral knees, within one year after separation from service. While the Board acknowledges that arthritis is among the chronic disease identified under C.F.R. § 3.309 as subject to presumptive service connection and continuity of symptomatology, there is no competent evidence that the claimed disabilities arose within the one year presumptive period after separation from service. Therefore, establishing service connection presumptively is not warranted. 38 U.S.C.A. §§ 1101, 1112, (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for a right shoulder and bilateral knee disabilities, and the claims must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs