Citation Nr: 1804365 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-48 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a back disability, other than spina bifida occulta. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty for training in the Army National Guard in August 1970 and active duty in the Air Force from May 1972 to May 1977. The Veteran was awarded the National Defense Service Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The case was subsequently transferred to the VA RO in New York, New York. In October 2013, the Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. The Veteran's case was remanded for additional development in March 2014, specifically to afford the Veteran a VA examination for his claimed orthopedic disabilities. An April 2015 Board decision denied the Veteran's service connection claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In an August 2016 Memorandum Decision, the Court vacated the April 2015 Board decision and remanded the case for further proceedings. The Veteran's case was remanded again in February 2017 for additional development, which has been completed. The issue of entitlement to service connection for a right knee disability was raised by the Veteran in May 2009, and referred by the Board to the AOJ in the March 2014 remand and April 2015 decision. Review of the record subsequent to the Board's April 2015 referral suggests no action has been taken on that matter. As noted in the Board's February 2017 remand, the Veteran's representative raised the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for spina bifida occulta; however, the AOJ has not adjudicated that petition. See January 2016 Appellant Brief, pp. 20-23. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017); see 79 Fed. Reg. 57,660 (Sept. 24, 2015) (codified in 38 C.F.R. Parts 3, 19, and 20 (2016)). FINDINGS OF FACT 1. The weight of the probative evidence is against a finding that the Veteran's back disability is related to military service. 2. The weight of the probative evidence is against a finding that the Veteran's neck disability is related to military service. 3. The weight of the probative evidence is against a finding that the Veteran's right shoulder disability is related to military service. 4. The weight of the probative evidence is against a finding that Veteran's left shoulder disability is related to military service. 5. The weight of the probative evidence is against a finding that the Veteran's left knee disability is related to military service. CONCLUSIONS OF LAW 1. A back disability was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. A neck back disability was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. A right shoulder disability was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. A left shoulder disability was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. A left knee disability was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This case was remanded by the Court in August 2016. The Court has held "that a remand by the Court confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1) (2012). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with Fletcher in mind. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in an October 2008 letter. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned VLJ in October 2013. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were remanded in February 2017 to obtain outstanding VA medical records, obtain outstanding private medical records, obtain personnel records, and afford the Veteran examinations for his claimed back, neck, shoulder, and knee disabilities. In April 2017, personnel records were associated with the claims file, and outstanding VA medical records were obtained. The Veteran also submitted another copy of Dr. W. G.'s October 2016 opinion. Additionally, in May 2017 the Veteran was provided VA examinations by orthopedic specialists. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria The Veteran seeks entitlement to service connection for a back disability, neck disability, right and left shoulder disabilities, and a left knee disability, which he asserts are due to his duties as a firefighter during his Air Force service. See October 2013 Hearing Transcript, pg. 7. However, for the reasons discussed below, the evidence is against the Veteran's claims. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the Veteran's arthritis did not manifest to a compensable degree within one year of separation from service. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 U.S.C. §§ 1110, 1131(2012); 38 C.F.R. § 3.303 (2017). Back Disability The Veteran has diagnoses of lumbar degenerative joint disease (DJD) and degenerative disc disease (DDD), satisfying the first Hickson element. Service treatment records are negative for reports of back trouble. The Veteran denied back trouble on his January 25, 1977 report of medical history, and the contemporaneous separation examination report indicated his spine was clinically normal. However, the Veteran has reported that the physical activities he performed as a firefighter during service put a strain on his back. See January 2008 claim. Personnel records indicate that from May 1972 to December 1973 the Veteran was a nozzle man on a variety of vehicles and was responsible for vehicle maintenance and extinguishment of fires. From December 1973 to January 1977 the Veteran worked as a communication control operator, and was responsible for receiving, recording, and transmitting all alarms, dispatching vehicles, personnel and other equipment to fire emergencies, and maintaining fire department logbooks and activities related to fire department operations. Given the duties performed by the Veteran during service, the second Hickson element is met. There are several nexus opinions regarding a relationship between the Veteran's back disability and service. In an October 2009 letter, Dr. G. K. opined that the Veteran's "ongoing issues may very well be related to his work as a firefighter," ostensibly referring to the Veteran's "chronic, moderate-severe and at times debilitating pain." Given the equivocal nature of this opinion, it is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (holding that a physician's statement framed in terms such as "may" or "could" is not probative). In a May 2013 report, A. E., FNP opined that the Veteran's back and neck disabilities were likely caused by his duties as a firefighter. She noted the Veteran's duties involved rigorous physical demands, including extracting pilots from planes and numerous training sessions performing similar drills. A September 2013 letter from D. P., PA-C opined that the Veteran's current orthopedic complaints were as likely as not caused or aggravated by his previous activity in the military. D. P. noted the Veteran's duties including lifting, climbing, and carrying heavy objects which affected his back, shoulders, and knees. In October 2016, Dr. W. G. opined that the Veteran's back disability was related to service. Dr. W. G. indicated he was a former fire department captain and was familiar with the risks and injuries associated with that position. He explained that the Veteran more likely than not sustained his neck, back, and shoulder injuries as a result of his duties as a firefighter, and that the Veteran's ability to work for the post office after service spoke to his pain tolerance and desire to continue gainful employment. A VA opinion was obtained in May 2017, from L. M., PA and Dr. J. H. of the Stratton VA Medical Center Orthopedic Department. The opinion noted the Veteran's duties as a firefighter, but found that there was insufficient evidence to conclude that those duties were the likely cause of the Veteran's back disability. The opinion noted that the absence of back complaints in the service treatment records and the denial or failure to document back complaints at separation nearly certainly ruled out significant acute injury, and likely excluded significant chronic injury. The opinion indicated that the June 2005 MRI showing mild DDD and foraminal stenosis was more consistent with the Veteran's multiple falls during his work as a postal employee as well as the normal aging process, and were less likely indicative of a service injury more than 28 years earlier. L. M. also considered the positive opinions of record, and observed that the opinions did not address the pertinent factors, including the lack of in-service orthopedic diagnoses, extensive gaps in the medical record, post-service factors including the Veteran's multiple falls, and normal aging. Based on the lack of discussion of those factors L. M. and Dr. J. H. found the positive opinions to be lacking in probative value. In evaluating the medical opinions, the Board also considered the post-service evidence of record. Notably, a June 2002 Vocational Rehabilitation report stated that the Veteran's back pain resulted from a fall, and August 2005 New York state disability records note that the Veteran sustained a series of falls on ice during his employment with the post office which resulted in a herniated disc that continued to trouble him, and that his back problems were exacerbated in 2005. Additionally, a December 2007 note from Dr. J. M. stated that the Veteran developed chronic lower back pain in 2005. In an August 2008 VA examination report, the Veteran indicated his back symptoms manifested in 1985. In statements received in January 2009 and May 2009, the Veteran and his wife wrote that the Veteran had back problems during service but did not go to sick call for fear of being transferred out of the fire service; the Veteran also said he reported his back problems at his separation physical. The Veteran reiterated this contention during his Board hearing, and his belief that his back disability was related to his firefighting duties and later aggravated by his postal service work. See October 2013 Hearing Transcript, pp. 9-10, 26. To the extent that the Veteran and his wife reported that the Veteran sustained back problems during service and did not seek treatment but reported them at separation, those statements are at odds with the objective contemporaneous evidence indicating the Veteran expressly denied back trouble. Those statements are also inconsistent with the 90 pages of service treatment records that document his treatment for a variety of ailments including upper respiratory infections and skin conditions. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Moreover, the Veteran's medical history, and the back injuries incurred during his time as a postal worker are significant to the inquiry of whether his current back disability is related to service. The lack of discussion of the Veteran's conflicting reports and medical history, as well as the falls sustained during his work for the post office, diminishes the probative value of the positive opinions. On the other hand, the May 2017 opinion is based on both due consideration to the Veteran's duties as a firefighter during service and a thorough analysis of his post-service medical history. The more complete discussion of the record by the May 2017 clinicians enhances the probative value of the opinion. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Moreover, to the extent that the Veteran says his current back difficulties were merely aggravated by his work for the postal service, the May 2017 opinion addressed that contention and found that the medical evidence, including a June 2005 MRI showing mild DDD and foraminal stenosis, was consistent with the Veteran's multiple falls during his work as a postal employee as well as the normal aging process, and were less likely indicative of a service injury at least 28 years earlier. Given the inconsistent statements regarding the onset of the Veteran's back symptoms and the limited supporting rationale of the positive nexus opinions, the Board finds the May 2017 VA opinion to be the most probative evidence on this question. In the absence of a probative nexus opinion linking the Veteran's back disability to service with at least equal weight as the May 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for a back disability must be denied. Neck Disability The Veteran has a diagnosis of cervical DDD, satisfying the first Hickson element. Service treatment records are negative for reports of neck trouble. The Veteran denied back trouble and swollen or painful joints on his January 25, 1977 report of medical history, and the contemporaneous separation examination report indicated his spine and neck were clinically normal. Given the duties performed by the Veteran during service, the second Hickson element is met. As noted above, there are several nexus opinions of record. The May 2013, September 2013, and October 2016 opinions are largely uniform of their discussion regarding the Veteran's neck disability, briefly recounting his recent medical history and attributing his cervical DDD to service. The May 2017 VA opinion from L. M., PA and Dr. J. H. opined that the Veteran's neck disability was less likely than not related to service. The opinion noted that a May 2002 record from Dr. T. indicated the Veteran reported his neck pain began in 1992. The opinion recounted that an October 2001 MRI showed mild DDD and DJD which was consistent with normal aging and less likely indicative of acute or chronic injury between 1972 and 1977, and that a neurological evaluation of a 2005 MRI indicated that the Veteran's 2001 and 2005 MRIs were essentially normal and that the Veteran's symptoms were likely myofascial, rather than bone / joint / nerve, in origin. As noted above, L. M. also considered the positive opinions of record, and observed that the opinions did not address the factors including the lack of in-service orthopedic diagnoses, extensive gaps in the medical record, post-service factors including the Veteran's multiple falls, and normal aging. Based on the lack of discussion of those factors L. M. and Dr. J. H. found the positive opinions to be lacking in probative value. Other pertinent evidence includes an October 2001 report from Dr. J. G. which noted the Veteran reported at least a 10 year history of chronic neck pain, and an October 2010 MRI which was interpreted as "completely and totally unremarkable for a 52 year old." A June 2002 Vocational Rehabilitation report stated that the Veteran's neck pain resulted from a fall. In August 2005, the Veteran reported that his neck pain dated to the early 1980s, and that he sustained falls while working for the post office. However, a December 2007 note from Dr. J. M. stated that the Veteran developed chronic upper back pain in 2005. In an August 2008 VA examination report, the Veteran indicated his neck symptoms manifested in 1985. The Board also reviewed the statements of the Veteran and his wife regarding his problems during service and self-treatment, but as noted above, those statements are inconsistent with the contemporaneous records indicating the Veteran denied back and neck difficulties at separation. Based on the foregoing, the Board finds the May 2017 VA opinion to be the most probative evidence on this question. The May 2013, September 2013, and October 2016 opinions attributed the Veteran's neck disability to his in-service duties without discussion of the Veteran's denial of joint symptoms on separation from service or relevant aspects of his post-service medical history, including his falls while working for the post office and the October 2010 MRI report. See June 2002 Vocational Rehabilitation report. The lack of discussion of the Veteran's medical history and the falls during his work for the post office diminishes the probative value of those opinions when compared to the May 2017 opinion, which provided a more thorough discussion of the Veteran's post-service medical history. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the absence of a probative nexus opinion linking the Veteran's neck disability to service with at least equal weight as the May 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for a neck disability must be denied. Right and Left Shoulder Disabilities The Veteran has diagnoses of right shoulder rotator cuff tear, rotator cuff tendonitis, and glenohumeral joint osteoarthritis, and left shoulder impingement syndrome, rotator cuff tendonitis and glenohumeral joint osteoarthritis, satisfying the first Hickson element. Service treatment records are negative for reports of shoulder trouble. The Veteran denied painful or trick shoulder trouble on his January 25, 1977 report of medical history, and the contemporaneous separation examination report indicated his upper extremities were clinically normal. Given the duties performed by the Veteran during service, the second Hickson element is met. The September 2013 and October 2016 opinions addressed the Veteran's shoulder disabilities in general terms as being related to his firefighting duties in service. The September 2013 opinion noted the Veteran was seen for left shoulder complaints beginning in April 2006 and right shoulder complaints in 2007, and was treated for impingement syndrome, rotator cuff pathology, and degenerative changes of the acromioclavicular joint. The May 2017 VA opinion from L. M., PA and Dr. J. H. opined that the Veteran's shoulder disabilities were less likely than not related to service. The opinion noted that during an August 2008 VA examination the Veteran reported his left shoulder symptoms began in 2001 while he performed overhead physical work as a canal operator, and that in 2006 the Veteran was diagnosed with mild to moderate rotator cuff tendinopathy, probable supraspinatus tendon partial tear, and acromioclavicular and glenohumeral joint degeneration. L. M. reasoned that these findings were more consistent with age and overhead physical work than a chronic injury sustained 30 years prior. With respect to the right shoulder, L. M. noted that a September 2013 examination by PA-C D. P. showed that the Veteran reported shoulder pain in 2007, and that the diagnosed partial tears and acromioclavicular joint degeneration were likely mild as they were treated conservatively without surgery. Similarly, L. M. opined that these findings were more consistent with age and overhead physical work than with chronic injury 30 years prior. Other pertinent evidence includes a May 2002 note in which the Veteran reported several years of chronic shoulder pain, a December 2005 VA medical record in which the Veteran reported his shoulder pain existed for years and that he had a lot of falls while working for the post office, the August 2008 VA examination report in which the Veteran reported his left shoulder began to hurt in 2001, and a September 2008 note from Dr. H. B. in which the Veteran said he began to have shoulder pain while working for the post office. Additionally, in a January 2009 statement the Veteran's wife reported that the Veteran had shoulder problems during active duty, and the Veteran reiterated that assertion during the October 2013 hearing. However, the statements from the Veteran and his wife are inconsistent with the contemporaneous records indicating the Veteran denied shoulder difficulties at separation, or later statements that he began having shoulder pain while working for the post office. Consequently, the Board finds the May 2017 VA opinion to be the most probative evidence on this question. The September 2013 and October 2016 opinions attributed the Veteran's shoulder disabilities to his in-service duties without discussion of contrary evidence including the Veteran's denial of joint symptoms on separation from service and his post-service medical history including evidence of intervening injuries, most notably the Veteran's reports of falls while working for the post office and his September 2008 statement that he began to have shoulder pain while working for the post office. The May 2017 opinion is based on consideration to the Veteran's duties as a firefighter during service and a thorough analysis of his post-service medical history, rendering it more probative than the other opinions. In the absence of a probative nexus opinion linking the Veteran's shoulder disabilities to service with at least equal weight as the May 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for right and left shoulder disabilities must be denied. Left Knee Disability The Veteran has diagnoses of left knee synovitis and knee osteoarthritis, satisfying the first Hickson element. Service treatment records are negative for reports of knee trouble. The Veteran denied trick or locked knee and swollen or painful joints on his January 25, 1977 report of medical history, and the contemporaneous separation examination report indicated his lower extremities were clinically normal. However, the Veteran has reported that the physical activities he performed as a firefighter during service put a strain on his knee. See January 2008 claim. Given the duties performed by the Veteran during service, the second Hickson element is met. The September 2013 opinion addressed the Veteran's knee disability in general terms as being related to his firefighting duties in service. It noted that the Veteran reported discomfort in his knees in 2007 and was found to have degenerative changes, and had had an arthroscopy performed several years prior. The report also noted the Veteran was treated conservatively with quad strengthening exercises and seemed to have improved. The May 2013 and October 2016 reports did not address the Veteran's knee disability. The May 2017 VA opinion from L. M., PA and Dr. J. H. opined that the Veteran's left knee disability was less likely than not related to service. The opinion noted that the Veteran underwent knee arthroscopy for reasons he could not specify, and that the surgery occurred 8 years after service and several years into the Veteran's postal service carrier. In September 2013 the Veteran reported the onset of knee pain as 2007, and findings of knee degeneration consistent with normal aging were documented. Given these facts, a relationship to service was not found. As noted above, L. M. considered the positive opinions of record, and found the opinions did not address the factors including the lack of in-service orthopedic diagnoses, extensive gaps in the medical record, post-service factors, and normal aging. Based on the lack of discussion of those factors L. M. and Dr. J. H. found the positive opinions to be unpersuasive. The Board considered the Veteran's statements that he had knee problems during service and self-medicated for them. However, in May 2014 the Veteran reported his knee pain began while he worked as a city carrier for the post office. See May 2014 VA knee examination report. These conflicting accounts limit the probative value of the Veteran's statements regarding the history of his knee difficulties. Accordingly, the Board finds the May 2017 VA opinion to be the most probative evidence on this question. The September 2013 opinion attributed the Veteran's knee disability to his in-service duties without discussion of the Veteran's denial of joint symptoms at his separation from service, and concluded that the Veteran's firefighting activities affected his knees but did not cite any objective evidence for that conclusion. However, the May 2017 opinion supported negative conclusion with reference to 2007 findings of knee degeneration consistent with normal aging. Thus, the May 2017 opinion is based on both due consideration to the Veteran's duties as a firefighter during service and his pertinent post-service medical history, rendering it more probative than the September 2013 opinion. In the absence of a probative nexus opinion linking the Veteran's knee disability to service with at least equal weight as the May 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for a left knee disability must be denied. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs