Citation Nr: 1805110 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-18 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right knee disability. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected right knee disability. 3. Entitlement to service connection for a back disability, to include as secondary to service-connected right knee disability. 4. Entitlement to service connection for a right leg disorder, other than the right knee disorder. ORDER Service connection for a left shoulder disability, to include as secondary to service-connected right knee disability, is denied. Service connection for a right shoulder disability, to include as secondary to service-connected right knee disability, is denied. Service connection for a back disability, to include as secondary to service-connected right knee disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that a left shoulder disability was not manifested in service or until many years thereafter, and is not related to service or to the service-connected right knee disability. 2. The preponderance of the evidence shows that a right shoulder disability was not manifested in service or until many years thereafter, and is not related to service or to the service-connected right knee disability. 3. The preponderance of the evidence shows that a back disability was not manifested in service or until many years thereafter, and is not related to service or to the service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a right shoulder disability, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for a back disability, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before the undersigned. This matter was previously before the Board in July 2017. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (overruled on other grounds Walker, supra.) In this case, neither a bilateral shoulder disability nor a back disability was noted in service. Thus, further consideration of the concept known as a continuity of symptomatology is not warranted. Under C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's enlistment examination, dated in December 1969, was negative for any complaints or findings of a bilateral shoulder disability or a back disability. The service treatment records indicate that the Veteran was seen in orthopedic clinic on June 24, 1971 with a one month history of right knee pain, which began after an automobile accident, although he reported that he did not recall any injury to the knee. The Veteran's military separation examination, conducted in September 1971, was completely silent with respect to any complaints or findings of a bilateral shoulder or back disorder. Clinical evaluation was normal. The Veteran's claim for service connection for a back disability was received in January 2008. The Veteran reported injuring his right knee during military service. He stated that he was experiencing back problems which he believed were secondary to his right knee injury. The Veteran maintained that the injury to his right knee caused him to alter his normal way of walking, resulting in problems with his back over the years. The Veteran's claim for service connection for a bilateral shoulder disability was received in August 2014. The Veteran reported that he suffered from torn rotator cuffs as a result of a fall down a flight of stairs about two to three days prior. He maintained that he fell due to his service-connected right knee going limp as he was walking down the stairway. Post-service treatment records reflect diagnoses of left bicipital tendon tear, bilateral rotator cuff tear, bilateral glenohumeral joint osteoarthritis, bilateral acromioclavicular joint osteoarthritis, and lumbosacral degenerative joint disease (DJD). A February 2000 private treatment record, associated with the Veteran's Workman's Compensation claim, reflects the Veteran's complaints of bilateral low back pain. It was noted that "his symptoms developed as a direct result of performing his activities as a truck driver. He apparently hit a pothole in the road, which resulted in low back pain." The Veteran reported that he had not worked since his original injury 13 years ago. A VA primary care note, dated in August 2003, indicates that the Veteran was seen for a work-related back injury, sustained as a truck driver. It was noted that he hit a pothole with the front wheel, sustained a back injury and had surgery. It was noted that the Veteran had pain for six weeks after surgery. During a clinical visit in July 2006, it was noted that the Veteran complained of chronic back pain stemming from an old workman's compensation injury in which he fell into a pothole and injured his back. The assessment was chronic back pain. The Veteran was seen in August 2007 for evaluation of his medical conditions. At that time, he reported a history of chronic low back pain with ruptured L4-5, for which he had surgery in 1990. He reported having infrequent low back exacerbations since he moved. The assessment was chronic low back pain with history of L4-5 rupture and surgery. Following a review of the claims folder in November 2008, the VA examiner noted that the records indicate that the Veteran had a car accident in 1971; he had the shift kind of jam into his knee. It was noted that the Veteran subsequently developed some knee pain, retropatellar pain, and crepitation. The examiner further noted that the Veteran had reportedly been disabled since a truck accident in 1987. The examiner stated that the Veteran had another injury with a subsequent back injury and back surgery with left leg pain. Consequently, the examiner opined that the back and left leg were not related to the right knee; rather, he stated that they were related to a separate accident. In conjunction with his claim for service connection for a back disability, the Veteran was afforded a VA examination in January 2013. At that time, he reported being involved in a motor vehicle accident in 1987, with subsequent herniated nucleus pulposus at L4-L5 and subsequent partial discectomy in 1990. The Veteran complained of chronic pain with radiated down the left leg from his back, worse with bending, prolonged forward postures and twisting. He reported having this pain for years. Following an evaluation of the back, the Veteran was diagnosed with herniated nucleus pulposus, status post motor vehicle accident, discectomy, and low back strain. The examiner stated that it was less likely as not that the Veteran's current thoracolumbar spine disability was proximately due to (caused by) or the result of the Veteran's right knee/leg injury during military service and/or current right knee/leg disability. The examiner further stated that it was more likely that the Veteran's chronic back pain with radiculopathy was related to his back injury in 1987 and subsequent surgery in 2000. In conjunction with his claim for service connection for a bilateral shoulder disability, the Veteran was afforded a VA examination in October 2014. At that time, he reported that he fell due to his old right knee condition three years ago sustaining left shoulder injury; he stated that he fell again due to the same service-connected right knee condition three to four years ago and he sustained a right shoulder injury. The Veteran indicated that he was subsequently treated with shoulder injections and Percocet with little relief. He complained of bilateral shoulder pain which was aggravated by motion. The examiner stated that a right shoulder ultrasound on November 16, 2012 demonstrated partial thickness subscapularis tear. With respect to the left shoulder, he noted that an MRI in August 2008 demonstrated chronic left biceps tendon long head tear and partial thickness supraspinatus tear. The examiner related that the pertinent diagnoses were bicipital tendon tear, left shoulder; and rotator cuff tear of the left and right shoulders. The examiner opined that the Veteran's bilateral rotator cuff injuries were less likely as not due to the right knee condition. The examiner stated that there was no evidence that the old right knee injury/condition was the cause of the Veteran's falls; and, he stated that there was no evidence that the Veteran's falls caused his rotator cuff injuries. Subsequently, in June 2016, the Veteran submitted an examination report from Dr. S. N. Dr. S. N. noted that the Veteran reported that, in the last three to five years, his left knee gave out and caused him to fall down 13 steps landing on his back with the arms attempting to be extended resulting in bilateral shoulder pain. The Veteran reported subsequent chronic shoulder problems for which he had been receiving treatment. Following an examination of the Veteran, Dr. S. N. stated that the problems the Veteran presents in terms of shoulder girdles would definitely be consistent with the "jamming" of the head of the humeri into the osteoarthritic shoulder girdles. Pursuant to a July 2016 Board remand, the Veteran was afforded an August 2016 VA arm and shoulders examination. The examiner noted review of the Veteran's claims file. Following interview and examination of the Veteran, the examiner opined that the Veteran's left and right shoulder disabilities were less likely than not proximately due to or the result of the Veteran's service-connected right knee condition. The examiner reasoned that "there is no evidence that the right knee old injury or condition is the cause of his falls. There is no evidence that his falls caused his rotator cuff injuries. Hence, his right knee neither caused nor aggravated his right and left shoulder condition." Upon review, the Board found this opinion inadequate because it was unclear what the rationale was for the examiner's finding of "no evidence" that the right knee old injury or condition was the cause of his falls and that there was "no evidence" that his falls caused his rotator cuff injuries. Additionally, the Board found that an August 2016 VA opinion was inadequate as the examiner never addressed the Veteran's argument that his service-connected knee has altered his gait, which in turn has caused or aggravated his lumbar spine condition. Thus, he did not adequately address the Veteran's lay contentions regarding secondary service connection. Therefore, pursuant to the July 2017 Board remand, a July 2017 VA opinion was obtained regarding the etiology of any back disability. The VA examiner noted the Veteran's diagnosis of DJD of the lumbosacral spine. Following review of the Veteran's claims file, the examiner opined that it was less likely as not that the Veteran's DJD of the lumbar spine was etiologically related to his period of active service. The examiner explained that there was no evidence to show that the lumbar spine DJD was etiologically related to the Veteran's period of active service. The examiner further opined that it was less likely as not that the Veteran's service-connected right knee disability caused or aggravated any spine disorder. The examiner explained that although chronic altered gait due to knee pain can cause lumbar spine DJD, review of the Veteran's claims file revealed no record of chronic antalgic gait. The examiner acknowledged a March 1987 private treatment record evidencing self-limited right leg radiculopathic symptoms, which caused a limp, but indicated that this was not related to the in-service knee injury. The examiner further noted that at this time, the Veteran presented for treatment due to severe lower back pain with pain radiating to his right hip, thigh, and all the way down to his right foot. The pain was getting worse and he was unable to straighten up or bend due to severe pain, and also numbness and coldness to the right lower extremities. The Veteran reported that he began experiencing this pain after he was involved in an accident in March 1987 when he was the driver of a dump truck. Also, pursuant to the July 2017 Board remand, the Veteran was afforded an August 2017 VA arm and shoulders examination. The Veteran was diagnosed with left bicipital tendon tear, bilateral rotator cuff tear, bilateral glenohumeral joint osteoarthritis, and bilateral acromioclavicular joint osteoarthritis. Following interview and examination of the Veteran and review of the Veteran's claims file, the examiner opined that it was less likely as not that any right or left shoulder disability had their onset in service or were otherwise related to active duty. The examiner reasoned that there was no evidence of serious injury or chronic condition of the bilateral shoulders during service or in the civilian record immediately following service. Again, following interview and examination of the Veteran and review of the Veteran's claims file, to include the June 2016 examination report from Dr. S. N., the examiner opined that it was less likely as not that any diagnosis of the shoulders, to include left bicipital tendon tear, bilateral rotator cuff tear, bilateral glenohumeral joint osteoarthritis, and bilateral acromioclavicular joint osteoarthritis was caused or aggravated as a result of the Veteran's falling down due to his service-connected right knee disability. The examiner reasoned that osteoarthritis, a degenerative disease, is chronic and a part of the natural process of aging, which is appropriate for the Veteran's age. Therefore, bilateral glenohumeral joint osteoarthritis and bilateral acromioclavicular joint osteoarthritis are less likely as due to the fall described by the Veteran. Further, the Veteran's August 2008 MRI of his left shoulder and impression showed a chronic rupture and prior tendon abnormality of the past that was not acute, so it was less than likely due to a fall. Specifically, the findings were "chronic rupture of the long head of the biceps tendon. Bursal sided, partial thickness supraspinatus tear as described above. This is at the site of the prior tendon abnormality and very well may be chronic. Marked AC joint with degenerative changes, stable." The examiner also stated that there was no evidence that the Veteran's right knee old injury/condition is the cause of his falls as there are many reasons the Veteran may have fallen as he is also suffering from many non-service connected conditions, like glaucoma, presbyopia, severe back arthritis, peripheral vascular disorder, etc. Lastly, the examiner stated that there was no evidence of permanent aggravation of the Veteran's bilateral shoulders condition due to his fall. As noted above, the record shows no report or treatment for a bilateral shoulder or back disability during service, and in fact, the Veteran has not alleged that he has bilateral shoulder or back disabilities traceable to his period of military service. Rather, he has attributed his bilateral shoulder and back disabilities to his service-connected right knee disability. In fact, the Veteran has reported the onset of bilateral shoulder disability following a fall after his knee buckled in 2008. See August 2014 VA Form 21-4138. Therefore, the Board finds that service connection on a direct basis for a bilateral shoulder and back disability is not warranted. The Board also notes that the evidence does not show that any arthritis manifested to a compensable degree within a year of separation from service. Thus, service connection would not be warranted on a presumptive basis pertaining to chronic diseases. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regard to entitlement to service connection on a secondary basis, the record reflects that service connection has been granted for residuals of a right knee injury. What is missing from the record, however, is competent medical evidence showing that any current bilateral shoulder or back disability is related to the service-connected residuals of right knee injury, on either a causation or aggravation basis. 38 C.F.R. § 3.310. In this case, it cannot be said that there is competent evidence showing that a back disability is related to the service-connected right knee disorder, as claimed by the Veteran. The only medical opinions of record that address the etiological question regarding the Veteran's back disability presented in this case discount a medical nexus between the Veteran's diagnosed back disability and his service-connected knee disorder. The supplemental opinion of the July 2017 VA examiner followed a review of the record and physical examination conducted by VA in January 2013. Specifically, the July 2017 VA examiner stated that it was less likely as not that the Veteran's service-connected right knee disability caused or aggravated any spine disorder. The examiner explained that although chronic altered gait due to knee pain can cause lumbar spine DJD, review of the Veteran's claims file revealed no record of chronic antalgic gait. The examiner further acknowledged a March 1987 private treatment record evidencing self-limited right leg radiculopathic symptoms, which caused a limp, but stated that this was not related to the in-service knee injury. Instead, the Veteran's complaints of severe lower back pain began after he was involved in an accident in March 1987 when he was the driver of a dump truck. There is no other medical opinion in the record to refute the conclusions of the VA examiner. Thus, there is no favorable competent evidence showing that the Veteran's back disability is related to service or his service-connected right knee disability. Rather, the uncontroverted competent evidence, consisting of a VA medical opinion, opposes the claim. With respect to the medical opinions of record addressing the etiology of the Veteran's shoulder conditions, the Board finds the August 2017 VA examination report more probative than the June 2016 private opinion by Dr. S. N. Dr. S. N. indicated that the history provided was "obtained predominantly from the Veteran and his wife" as opposed to the Veteran's service and post-service medical records. The August 2017 VA opinion considers all the relevant facts and provides a rationale for finding that the Veteran's bilateral shoulder disabilities are less likely than not related to his service-connected right knee disability. As for the Veteran's statements, relating his bilateral shoulder disability and back disability to the service-connected right knee disability, although the Veteran is competent to describe symptoms pertaining to his claimed disability, whereas here, the question involved is one of medical causation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his statements are not competent evidence with respect to whether there is an etiological relationship between the Veteran's service-connected right knee and disabilities of the bilateral shoulder and back. The weight of the credible evidence demonstrates that the Veteran's bilateral shoulder and back disabilities have not been medically linked to the service-connected right knee disability, residuals of a right knee injury. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt standard of proof does not apply. 38 C.F.R. §38 U.S.C. § 5107(b). REMAND In August 2017, the Veteran appealed the Board's July 2016 determination, denying entitlement to service connection for a right leg disorder, to the United States Court of Appeals for Veterans Claims (Court) and in August 2017, the Veteran's representative and VA's General Counsel filed a Joint Motion for Partial Remand (JMPR) to Vacate and Remand the July 2016 decision. The Court granted the JMPR in August 2017. The basis for the JMPR included the Board's failure to provide adequate reasons and bases for its determination that the Veteran did not have a right leg disability distinct from his service-connected right knee disability and that symptoms in the right lower extremity had been attributed to the right knee disability or unrelated lower back disability. The parties stated that the Board did not address favorable VA medical treatment records from December 2014 and April 2015 that diagnosed the Veteran with right thigh neuropathy. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Forward the record to an appropriate VA examiner in order to offer an opinion addressing the nature and etiology of the Veteran's right leg disability, diagnosed as right leg neuropathy. After reviewing the record in full, the examiner should address the following: (a) Is the Veteran's diagnosed right leg neuropathy a disorder that is separate and distinct from his service-connected right knee disability, or is such a symptom, or part and parcel, of such disability? In offering such opinion, the examiner should consider the December 2014 and April 2015 VA treatment records that note a diagnosis of right leg neuropathy. (b) If the Veteran's diagnosed right leg neuropathy is a disability that is separate and distinct from his service-connected right knee disability, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise, related to the Veteran's military service? In offering such opinion, the examiner should consider the Veteran's in-service right knee injury in June 1971 and the December 2014 VA treatment record noting a diagnosis of right leg neuropathy. (c) If the Veteran's diagnosed right leg neuropathy is a disability that is separate and distinct from his service-connected right knee disability, is it at least as likely as not (i.e., a 50 percent or greater probability) that such is caused OR aggravated by the service-connected right knee disability? The term "aggravation" means a worsening of the underlying condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation is found, please attempt to establish a baseline level of severity of any right thigh neuropathy disability prior to aggravation by the service-connected right knee disability. 3. Readjudicate the Veteran's claim on appeal. If the benefits sought on appeal remain denied, furnish a supplemental statement of the case before the case is returned 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: The American Legion Department of Veterans Affairs