Citation Nr: 18142525 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 05-03 256 DATE: October 16, 2018 ORDER Entitlement to service connection for a bilateral shoulder disorder, secondary to service-connected splenomegaly is denied. Entitlement to service connection for a bilateral elbow disorder, secondary to service-connected splenomegaly is denied. Entitlement to service connection for a back disorder, secondary to service-connected splenomegaly is denied. Entitlement to service connection for a bilateral knee disorder, secondary to service-connected splenomegaly is denied. FINDINGS OF FACT 1. A bilateral shoulder disorder was not manifest during service and arthritis was not manifest within one year of separation. A bilateral shoulder disorder is unrelated to service. 2. A bilateral shoulder disorder is not caused or aggravated by a service-connected disease or injury. 3. A bilateral elbow disorder was not manifest during service and arthritis was not manifest within one year of separation. A bilateral elbow disorder is unrelated to service. 4. A bilateral elbow disorder is not caused or aggravated by a service-connected disease or injury. 5. A back disorder was not manifest during service and arthritis was not manifest within one year of separation. A back disorder is unrelated to service. 6. A back disorder is not caused or aggravated by a service-connected disease or injury. 7. A bilateral knee disorder was not manifest during service and arthritis was not manifest within one year of separation. A bilateral knee disorder is unrelated to service. 8. A bilateral knee disorder is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. A bilateral shoulder disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. A bilateral shoulder disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.310 (2017). 3. A bilateral elbow disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 4. A bilateral elbow disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.310 (2017). 5. A back disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 6. A back disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.310 (2017). 7. A bilateral knee disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 8. A bilateral knee disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to October 1967. This matter has an extensive procedural history, which the Board will not recite in full. It includes a September 2010 Memorandum Decision by the United States Court of Appeals for Veterans Claims and numerous remands. The matter was most recently remanded in March 2017. 1. Entitlement to service connection for a bilateral shoulder disorder, secondary to service-connected splenomegaly 2. Entitlement to service connection for a bilateral elbow disorder, secondary to service-connected splenomegaly 3. Entitlement to service connection for a back disorder, secondary to service-connected splenomegaly 4. Entitlement to service connection for a bilateral knee disorder, secondary to service-connected splenomegaly With respect to all four issues on appeal, the Veteran’s primary assertion is that they are secondary to his service-connected splenomegaly and a related blood disorder. The Veteran has not specifically asserted that his claimed disorders are directly related to active service. Regardless, the Board will address both direct and secondary theories of service connection. Direct Service Connection Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has been diagnosed with arthritis of the shoulders, elbows, back and knees. Arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations 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.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). The Veteran has not asserted that his disorders are directly related to service. Service treatment records document complaints of back pain and an initial assessment of spondylosis. However, May 1967 treatment records document a normal x-ray of the spine and an updated assessment of muscle spasm with some psychological overlay. Remaining treatment records do not document relevant complaints, symptoms, treatment or diagnoses. The August 1967 Medical Board examination upon separation revealed normal upper extremities, lower extremities, spine and musculoskeletal system. At a November 2013 VA examination, a VA examiner concluded that the Veteran’s osteoarthritis of the shoulders, elbows, knees and back were less likely than not directly related to his active service. The examiner cited service treatment records, the October 1967 Medical Board evaluation, post-service occupational wear and tear, the natural aging process, arthritis risk factors, an occupational injury in 1991 and a motor vehicle accident in 1997. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the November 2013 VA examiner’s opinion that the Veteran’s shoulder, elbow, back and knee disorders are less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered her opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician’s opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board has also considered the lay statements of record. To the degree that the Veteran has asserted his disorders are directly related to service or reported that he has experienced a continuity of symptoms since separation from service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a diagnosis of arthritis or any other relevant disorder during service or immediately thereafter. Id. The Veteran’s lay evidence of onset and continuity is far less probative than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the bare lay assertions are outweighed by the clinical evidence of record. In sum, there is no reliable evidence linking the Veteran’s shoulder, elbow, back or knee disorders to service. The shoulders, elbows, back and knees were physically normal upon separation, there were no manifestations of arthritis within one year of separation, and arthritis was first manifest many years after separation. With respect to the report in-service back pain, diagnostic testing revealed a normal spine and the Veteran was subsequently assessed with muscle spasm, an acute and transitory condition that was not noted upon separation. The Board finds the contemporaneous records to be far more probative than the bare assertions of the Veteran. Here, chronic disease of the shoulders, elbows, spine and knees was not “noted” during service or within one year of separation. 38 C.F.R. 3.303(b). Service treatment records do not show a combination of shoulder, elbow, spine and knee manifestations sufficient to identify a chronic disease entity, and sufficient observation to establish chronicity at the time. The evidence of record shows that the disorders were manifest years after service and are more likely related to a post-service event. Furthermore, there is no showing of continuity. The Veteran was not shown to have arthritis or any relevant chronic disorder in service and did not have characteristic manifestations of such a disorder until multiple years after discharge. In essence, the evidence establishes that the shoulders, elbows, spine and knees were normal upon separation from service and the onset of arthritis occurred many years after service. The Board finds that the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the general lay statements of the Veteran. The more probative evidence establishes that he did not have a chronic shoulder, elbow, spine or knee disorder during service or within one year of separation. Furthermore, the evidence establishes that the remote onset of shoulder, elbow, spine and knee disorders are unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied on a direct basis. Secondary Service Connection Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310 (b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. As noted, the Veteran’s primary assertion is that his claimed shoulder, elbow, back and knee disorders are secondary to his service-connected splenomegaly and a related blood disorder. A May 2013 independent medical opinion was obtained by VA. In a July 2014 Remand, the Board found that the examiner’s opinions that the claimed disorders were less likely than not secondary to his service-connected splenomegaly were conclusory and not based upon the entire record or physical examination. As a result, the previously referenced November 2013 VA examiner issued opinions specific to secondary to service connection. The examiner concluded that the Veteran’s shoulder, elbow, back and knee disorders (arthritis) were not caused or aggravated by service-connected splenomegaly. As with respect to direct service connection, the examiner opined that the Veteran’s orthopedic disorders were more likely related to occupational wear and tear, post-service accidents and the normal aging process. In essence, the examiner explained that medical literature shows that osteoarthritis is the result of a variety of risk factors, which does not include splenomegaly. The Board accepts the November 2013 VA examiner’s opinions that the Veteran’s shoulder, elbow, back and knee disorders are less likely than not caused or aggravated by his service-connected splenomegaly as highly probative medical evidence on this point. The Board notes that the examiner rendered her opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens, supra; Gabrielson, supra. The Board again acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau, supra. However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his currently diagnosed shoulder, elbow, back and knee disorders to his service-connected splenomegaly. The most probative medical opinions of record addressing the claimed relationships are negative. No competent medical opinions linking these disorders to his splenomegaly have been presented. The VA examiner considered the Veteran’s lay assertions, but ultimately found that the Veteran’s current shoulder, elbow, back and knee disorders were not caused by or aggravated by his service-connected splenomegaly. The Board finds that the Veteran’s lay statements are outweighed by the VA examiner’s medical opinions as they were based on consideration of the Veteran’s contentions, review of medical records and medical expertise. We also note that the Veteran is service connected for headaches. However, there is no proof or allegation that the shoulder, elbow, back and knee disorders are caused or aggravated by headaches. In the absence of some proof of a relationship, there can be no valid claim. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s currently diagnosed shoulder, elbow, back and knee disorders are directly related to service, or in the alternative, secondary to service-connected disease or injury, and the claims must be denied. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel