Citation Nr: 1803221 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-13 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from December 1967 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge at the RO in August 2016. A transcript of that hearing has been associated with the claims file and has been considered in support of the Veteran's claim. The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. A left knee disorder is not etiologically related to his active service, and was not caused or aggravated by a service-connected disability. 2. A right shoulder disability is not etiologically related to the Veteran's active service, and a right shoulder disability was not shown to be present within one year after his separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §1101, 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). 2. A right shoulder disability was not incurred in or aggravated by active service and the incurrence or aggravation of a right shoulder disability during active service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112 (2017); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection for a Left Knee Disability The Veteran has asserted that he injured his left knee while on training, and subsequently re-aggravated it throughout his service. The Veteran's service treatment records (STRs) are silent for complaints of, or treatment for a left knee injury while in service. Indeed, at a March 1968 separation examination, the Veteran did not report any abnormalities noted with respect to his left knee. Upon clinical examination, the examiner also noted the Veteran's lower extremities to be normal. The examiner reported that the Veteran had no complaints. A review of the post-service medical evidence of record shows that the Veteran has received treatment at the VA Medical Center for a right knee and right shoulder disability. However, the medical evidence of record is completely silent with respect to complaints of, treatment for or symptoms of a left knee disability. At the Veteran's August 2016 hearing, he stated that he fell while in service and since then, his left knee would occasionally give way and swell up on him. He also reported a history of left knee, and surgical correction of an injury to the left knee. However, as discussed in further detail below, the only medical evidence of record indicates that the Veteran has had surgery for a medical cruciate ligament (MCL) tear in his right knee. The Board acknowledges the May 2011 lay statement from the Veteran's friend, G.L. who asserts that he has known the Veteran for 50 years; and, that the Veteran has complained about his legs and shoulders during that time. The Board also acknowledges the May 2011 lay statement from J.G., who equally states that he has known the Veteran for 30 years, and that the Veteran has exhibited problems with his knees and shoulder when he walks, or when raising his right arm over his head. However, the Board finds that these statements do not constitute probative evidence in support of the Veteran's claims that the current problem is connected to an event nearly 50 years ago. The service records and post-service records simply do not indicate such a chronic problem. Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In sum, there is no competent evidence of record indicating that the Veteran has ever received a diagnosis of a left knee disability that is related to his active service. The Board acknowledges the Veteran's contention that he has a left knee disability which was caused or aggravated by his right knee disability. To the extent that the Veteran is claiming a left knee disability, secondary to his right knee disability, such a theory of service connection on a secondary basis would be denied as a matter of law because service connection for a right knee disability has not been established. 38 C.F.R. § 3.310 (2017). On the above, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a left knee disability is not warranted. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990). II. Entitlement to Service Connection for a Right Shoulder Disability The Veteran asserts that he initially injured his right shoulder when he injured his knees. As with the Veteran's left knee, the Veteran's STRs are silent for complaints of, or treatment for a right shoulder injury while in service. Indeed, at a March 1968 separation examination, the Veteran did not report any abnormalities noted with respect to his right shoulder. He specifically denied painful or "trick" shoulders, or swollen or painful joints. Upon clinical examination, the examiner also noted the Veteran's upper extremities, spine, and musculoskeletal system to be normal. The examiner reported that the Veteran had no complaints. A review of the post-service medical evidence of record shows that the Veteran has received treatment at the VA Medical Center for a right shoulder disability. More specifically, a January 2010 radiological report indicated that the Veteran has suffered from a rotator cuff tear. A subsequent March 2011 magnetic resonance imaging (MRI) of the right shoulder noted findings consistent with mild degenerative changes in the acromio-clavicular (AC) joint. At the Veteran's August 2016 hearing, he stated that he fell while in service, landing on his outstretched arm. He acknowledged that he did not seek any treatment for the injury at the time. He stated that he was examined at some point and was told he had torn his rotator cuff. As noted above, the Veteran's VAMC are of record; and, the earliest report of a finding of injury to the right shoulder is the January 2010 radiology report, decades after service. The Board again notes the May 2011 lay statement from the Veteran's friend, J.G., who noted that the Veteran has had difficulty raising his arm over his head as far back as 30 years. Again, while the Veteran's friend is competent to observe symptoms of pain, he is not competent to make a diagnosis of a current disability affecting his shoulder that is related to his in-service left shoulder disability. Determining the etiology of the Veteran's current left shoulder disability requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have the needed expertise, medical training, or skills to diagnose the Veteran with a shoulder disability or to link any current symptoms of a shoulder disability, to any previous injury, including the a fall from over forty years prior. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Furthermore, as above, the disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, the service treatment records do not contain complaints of right 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 shoulder, to include arthritis of the right AC joint. The Veteran has not submitted any medical evidence supporting his contention that any current right shoulder disability is due to or the result of his service, to include the purported fall while in training. The Veteran's lay statement indicates the Veteran experienced one potential instance of an injury to his right shoulder, while in service which healed without complications or residuals. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right shoulder disability is not warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Assist VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C. § 5103(a) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds the Veteran was provided adequate notice in response to the claims. The record shows that the Veteran was mailed a letter in June 2011, advising what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The Board acknowledges that a VA medical examination or medical opinion has not been obtained in response to the claim. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159(c)(4) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. The Board finds that all medical records, which could be obtained to substantiate the claim, have been obtained. The Board is unaware of any additional outstanding evidence. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and a VA examination or medical opinion is unnecessary. The Board also finds the Veteran has been provided adequate assistance in response to the claims. The Veteran's service treatment records (STRs) are of record. To the extent that they exist, all VA and private treatment records have been obtained. At the Veteran's August 2016 hearing, he stated that he intended to provide additional medical records in support of his claims. The Board has provided sufficient time to allow for receipt of additional records. The Board therefore does not find any prejudice from adjudicating the Veteran's claims. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right shoulder disability is denied. REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. The Veteran has asserted that he injured his right knee while in service. More specifically, he asserted that while in training, he fell while carrying heavy military gear, and injured his knee. The record indicates that the Veteran served on active duty, as noted above, from December 1968 to April 1969, and in the Army Reserves until July 1971. At a November 1970 retention examination in the Army reserves, the Veteran reported swollen or painful joints, cramps in his legs, as well as trick or locked knees. More specifically, he noted that he had a history of right knee pain, with his knee frequently giving way for several months. Upon clinical examination, the Veteran's lower extremities were noted to be abnormal. The medical examiner specifically documented "pain" and "internal derangement" of the right knee. The examiner noted that the Veteran had undergone surgical repair of his right medial cruciate ligament in July 1970 with a resulting medial scar; and, that he had an unrepaired anterior cruciate ligament (ACL) tear. The examiner documented that the Veteran initially injured his right knee while playing football "one year ago". As a result of this examination, the Veteran was determined to be unfit for retention. However, based on the available evidence, as viewed in light of the Veteran's statement, it is not clear from the record whether the Veteran was injured while on a period of active duty, or active duty for training (ACDUTRA). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA/IDT is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. Id. Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty for training (INACDUTRA/IDT). 38 U.S.C. §§ 101(24), 106, 1131. When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA/IDT, there must be evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA/IDT. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA/IDT would not qualify as "active military, naval, or air service.," 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. In sum, the Veteran has reported that he first injured his knee while on active duty training, that he continued to re-injure it throughout service; and, that it has continued to hurt and frequently give out since then. The Board therefore remands the claim for entitlement to service connection for a right knee disability for attempts to be made to obtain the Veteran's Army Reserve personnel records and to verify the Veterans periods of ACDUTRA and INACDUTRA for training in the Army reserves. Accordingly, the case is REMANDED for the following actions: 1. Make arrangements to verify any periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). Please contact the NPRC and the Army Reserves, to verify the dates of the Veteran's active service, to include any service as an activated member of the Army Reserves or any period of active duty for training and provide a clearly enumerated list that indicates for each period whether the service was active duty, ACDUTRA, INACDUTRA, or unverified. Submission of the Veteran's retirement points does not constitute a sufficient response to this request. If possible, the Veteran himself should submit this evidence. 2. If personnel records show that the Veteran's injury occurred during a period of active military service, to include ACDUTRA and/or INACDUTRA, then the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed right knee disability. Based on the examination of the Veteran and the review of the record, the examiner(s) should opine as to whether it is at least as likely as not (50 percent or better probability) that any currently present right knee disability had its onset during the Veteran's active service or is otherwise etiologically related to the Veteran's active service. The clinician must provide a complete rationale for his or her opinion(s). 3. Confirm that the medical opinions comply with this remand. 4. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for a response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2017). JOHN J.CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs