Citation Nr: 1723803 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 12-16 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for the claimed residuals of a right shoulder injury. 2. Entitlement to service connection for the claimed residuals of a left shoulder injury. 3. Entitlement to service connection for the claimed residuals of a right knee injury. 4. Entitlement to service connection for the claimed residuals of a left knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to March 1982. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In August 2014, the Veteran and his spouse testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting at VA's Central Office in Washington, DC. A transcript of his testimony is of record. In November 2014, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development of the record. As noted in the November 2014 remand, part of the Veteran's paper claims file had been converted into an electronic record at that time. Since then, the Veteran's entire paper claims file has been fully converted to an electronic record, and this appeal is now processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's bilateral shoulder pain is, more likely than not, due to age-related mild osteoarthritis of the bilateral shoulders and/or rheumatoid arthritis which were not manifested during service or to a compensable degree within the first post-service year, and are not shown to be related to any injury disease or other event in service, including an MVA in 1981. 2. The Veteran's bilateral knee pain is, more likely than not, due to nonservice-connected rheumatoid arthritis, and is not shown to be related to any injury, disease, or other event in service, including a motor vehicle accident (MVA) in 1981. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred in service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. A left shoulder disability was not incurred in service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 3. A right knee disability was not incurred in service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 4. A left knee disability was not incurred in service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). By correspondence dated in October 2009, VA notified the Veteran of the information needed to substantiate and complete his claim of service connection for disabilities of the knees and shoulders, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. It is not alleged that notice was less than adequate. See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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 relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The record reflects that following the Veteran's period of active duty, he served in the National Guard until 2000. The record contains various STRs from his service in the National Guard, but the majority of the Veteran's service treatment records from his period of active duty have not been located, and the RO has done everything possible to locate them. See May 2010 VA memorandum and formal finding of unavailability of STRs. Then, pursuant to the Board's November 2014 remand directives, the AOJ contacted additional potential sources, including specific air force bases at which the Veteran thought that his records might be stored, but no additional records were located. Nonetheless, the Veteran's other STRs suggest that the Veteran was involved in an MVA in 1981, and the Board has conceded that the accident took place. It is noted that in such situations in which STRs are missing, not only does the Board have a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule, but an enhanced duty to assist. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This enhanced duty to assist was fulfilled as outlined above, and the Board's analysis of the Veteran's claim below has been undertaken under this heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. The Veteran's hearing testimony has been reviewed, and pertinent private medical evidence has been obtained. Regarding the Veteran's August 2014 hearing, the VLJ who conducted the hearing noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support of his claims and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Veteran was afforded VA examination of his knees and shoulders in June 2015. The examiner's opinion was based on review of the entire record and an interview with the Veteran. This examination is adequate because the examiner discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, this case was previously remanded in November 2014 for further development. All development directed by the Board's prior remand in this case has, to the extent possible, been accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appellant has not identified any pertinent evidence that remains outstanding, and available, with respect to this claim. VA's duty to assist is met. II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1131; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2016). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). For purposes of establishing service connection, a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Traumatic arthritis may be presumed to have been incurred in, or aggravated by, service, if the disability is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran seeks service connection for the claimed residual injuries of both shoulders and both knees, suffered in a motor vehicle accident (MVA) in 1981. The Veteran's personnel records corroborate the Veteran's account of a back injury in the line of duty during basic training. A counseling record notes that the Veteran was injured when he fell out of a truck during the fourth week of basic training, in October 1981; however, there are no details of the claimed injuries and no treatment records from 1981 or 1982. The Counseling record also shows that the Veteran was obese and in poor physical shape. A February 1982 Report of Medical Examination indicates a normal examination except for defective vision (myopia) which was corrected. A March 1985 periodic examination report, prepared during a period of Army National Guard service, shows that the Veteran reported that he had stiffness in the right shoulder, and, back pain from a car accident in 1981. The Veteran reportedly self-treated the pain. On the corresponding Report of Medical History, the Veteran reported painful shoulder and recurrent back pain. A June 1993 periodic Army National Guard Report of Medical History reflects that the Veteran continued to report back pain, but the examination did not reflect a diagnosis of arthritis, or complaints of shoulder and/or knee pain. Annual Medical Certificates from October 1996 and April 1998 reflect the Veteran's self-reported history of treatment for back pain and schizophrenia. August and September 1997 memoranda from the Veteran's private mental health provider confirm that the Veteran had developed chronic severe paranoid schizophrenia and was being treated for the same. In February 1997, the Veteran submitted an affidavit asserting that he was injured at basic training in 1982 and has had complications ever since; however, he does not indicate the nature of any such complications. A September 1997 memorandum from the National Guard shows that the Veteran requested a physical profile board, asserting that he was unable to continue in the National Guard. The memorandum refers to a March 1995 medical certificate in which no problems were indicated, and a December 1995 medical certificate in which the Veteran reported that he had sarcoidosis, back rupture, panic disorder, depression and glaucoma. The Veteran did not provide and medical documentation concerning any of those conditions until 1997. An October 1996 medical certificate indicates that the Veteran was on Prozac, Zoloft, and had back problems. The September 1997 memorandum also reflects that the Veteran reported at that time that he was injured when he fell out of a truck during basic training in 1981; and, that several attempts had been made to obtain documentation without success, and the only evidence of the event come from the Veteran's self-reported history and a notation on a counseling form, as noted above. Another September 1997 memorandum indicates that the Veteran had demonstrated that he was capable of performing his physical work as a carpenter, but had a limited ability to remember a list of tasks, and could only be given one task at a time or he forgets his other assignments. The service treatment records do not show any complaints or treatment for knee pain; however, the Veteran testified at his video conference in August 2014 that he also injured his knees in the 1981 MVA. The Veteran also testified that he was treated at a hospital for his injuries, including a reported left shoulder tear. According to his testimony, the Veteran went to Kessler Air Force Base for knee and shoulder treatment for about three months during 1982 after the injuries, and currently sees a private physician, Dr. Bitar, who reportedly has diagnosed the Veteran with osteoarthritis. Private records obtained from Dr. Bitar reflect that the Veteran has rheumatoid arthritis. In January 2014, the Veteran continued to have diffuse joint pain and stiffness on most days, and his shoulders and knees were the most symptomatic at that time. In March 2014, the Veteran continued to have diffuse joint pain and stiffness on most days, with mild swelling and warmth of his knees. In February 2015, the Veteran reported that he continued to have significant arthralgias on most days, but had been stable since his last visit. A June 2015 VA examination report indicates that the Veteran was diagnosed with rheumatoid arthritis in 2006, and also had 2015 x-ray evidence of osteoarthritis of the bilateral shoulders, but no evidence of osteoarthritis of either knee. The Veteran reported injuring his knees and shoulders in an in-service MVA. The examiner opined that the Veteran's knee and shoulder pain was less likely than not incurred in service or caused by the claimed in-service injury. The examiner reasoned that the Veteran's pain in his shoulders and knees was part of the rheumatoid disease process, particularly given that the private treatment records note that most of the Veteran's pain comes from his knees and shoulders. The examiner also noted that the mild osteoarthritis found in the shoulders would be expected based on age. The examiner concluded, based on a review of the evidence, clinical examination, and clinical expertise, that the Veteran's current diagnosis related to his shoulders and knees is less likely than not related to the 1981 MVA or any other incident of service. While the Veteran is certainly competent to state when his knee and shoulder pain began, his statements have been inconsistent with the objective findings. The National Guard records from 1985 through 1997 note complaints of back pain in relation to the 1981 MVA, but the Veteran did not report knee and shoulder pain until 2009, several years after he was diagnosed with rheumatoid arthritis. Notably, in May 2004, the Veteran submitted a claim of service connection for residuals of an in-service MVA, and specifically indicated that he has been unable to work due to injuries to his back, legs, and feet. These claims were denied; and, moreover, his assertions are not consistent with the medical record which shows that the Veteran was found to be in poor physical shape and overweight prior to the MVA during basic training, and was ultimately found by the National Guard in 1998 to be incapable of working due to chronic severe schizophrenia, not residuals of an MVA. Then, in October 2009, the Veteran requested to reopen his previously denied claims, and also referenced bilateral knees and bilateral shoulders. In the August 2010 rating decision currently on appeal, the RO denied the claims for service connection with regard to the bilateral shoulders and knees; and, determined that new and material evidence had not been received to reopen the previously denied claims, including a claim of service connection for a back condition that was previously claimed as residuals of injuries to the legs, feet, back and hips. The Veteran only appealed the denials of service connection with respect to the knees and shoulders. At his hearing in August 2014, the Veteran reported that he had experienced pain in his knees and shoulders ever since the 1981 MVA; however, this is inconsistent with the other evidence of record which notes only that he complained of back pain contemporaneous in time to the accident, and did not complain of knee or shoulder pain until several years later, after he was diagnosed with rheumatoid arthritis. These inconsistencies raise questions as to the Veteran's credibility, particularly given that he developed schizophrenia during the time of his National Guard service. While the Veteran has claimed that he injured both shoulders and both knees in service, this contention is not corroborated by his National Guard records. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, silence in a medical record can sometimes be relied upon as contradictory evidence; specifically, the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid . 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In this regard, the Veteran was provided with numerous opportunities to report the injuries suffered in the 1981 MVA during his National Guard service, and consistently reported only back pain. Given that he requested to be relieved from his duties due to injuries suffered in the 1981 MVA, the Board finds that had he suffered injury to joints other than his spine, these additional complaints would have been made at that time and such complaints would have been recorded had they occurred. Even so, the Board finds more persuasive the June 2015 opinion of the VA examiner, who based that opinion on the objective findings during the Veteran's post-service period in the National Guard between 1985 and 1997, the current private treatment records showing a diagnosis of, and treatment for, rheumatoid arthritis, and his clinical expertise. In essence, the examiner explains that the diagnosis of rheumatoid arthritis, by its very nature, is likely to produce the exact shoulder and knee symptoms currently reported by the Veteran, as this is part of the disease process. Additionally, the first reports of knee and shoulder pain are more contemporaneous in time to the rheumatoid diagnosis than to the 1981 MVA. The examiner also explains that the Veteran's mild osteoarthritis in both shoulder joints is part of the normal aging process, and is not related to the MVA in 1981. Furthermore, the evidence shows that the Veteran's rheumatoid arthritis had its onset many years after active duty, and is not related to any disease, injury or other event in service; and, the Veteran has never asserted such. Finally, even if the Board finds that the Veteran's statements regarding the onset of his knee and shoulder pain to be competent and credible, he is not competent to provide a medical opinion on causation as he does not possess the requisite medical expertise to address this complicated medical question. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for disabilities of the bilateral shoulders and bilateral knees is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs