Citation Nr: 18143931 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 10-37 837 DATE: October 22, 2018 ORDER Entitlement to service connection for bilateral shoulder strain is granted. Entitlement to service connection for clavicular pain is denied Entitlement to service connection for lumbosacral strain is granted. Entitlement to service connection for a right knee disability, to include right knee strain, right knee degenerative arthritis, and right knee medial compartment narrowing, is granted. Entitlement to service connection for left knee strain is granted. Entitlement to service connection for acne vulgaris is granted. FINDINGS OF FACT 1. The Veteran’s bilateral shoulder strain was incurred in service. 2. The Veteran does not have a current clavicle disability. 3. The Veteran’s lumbosacral strain was incurred in service. 4. The Veteran’s right knee disability was incurred in service. 5. Resolving reasonable doubt in his favor, the Veteran’s left knee disability was caused by his service-connected right knee disability. 6. There is no clear and unmistakable evidence demonstrating that the Veteran had acne vulgaris prior to service and that acne vulgaris was not aggravated by such service; chronic acne vulgaris has been shown during and after service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder strain have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for clavicular pain are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for a right knee disability, to include right knee strain, right knee degenerative arthritis, and right knee medial compartment narrowing, have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for left knee strain have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017). 6. The criteria for service connection for acne vulgaris have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2016.) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to April 1978, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2015, the Veteran presented sworn testimony during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a), such as arthritis, is “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Bilateral Shoulders The Veteran received a separation examination in January 1978, and the examiner noted that the Veteran had pain bilaterally at the base of the shoulder blade. There was no trauma involved, and there was no evaluation nor treatment. The pain lasted for three years and was intermittent. The Veteran submitted correspondence in August 2010 and stated that he had been dealing with shoulder issues for some time. He could press his back bone against a corner object and it would go away. The Veteran thought the pain came from lifting heavy objects in the military, such as 55-gallon drums, heavy tool boxes, and other mechanical equipment. Pursuant to the November 2015 Board remand, the Veteran received a VA examination in July 2017. The examiner noted a diagnosis of bilateral shoulder strain from the mid-1970s. The Veteran stated the pain began in service; while he did not recall a specific injury, he stated that he did a lot of heavy lifting. Based on a review of the medical evidence, the examiner concluded that the condition was noted in service on the January 1978 separation examination. As such, the bilateral shoulder strain was at least as likely as not incurred in or caused by service. The Board finds the July 2017 VA examination highly probative and concludes that service connection for bilateral shoulder strain is warranted. The examiner considered the Veteran’s history and in-service experiences, and provided a thorough rationale for her conclusions. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Clavicular Pain At the January 1978 separation examination, the examiner noted that the Veteran had pain in the right clavicular area. There was no trauma involved, and there was no evaluation nor treatment. The pain lasted for three years and was intermittent. The Veteran submitted correspondence in August 2010 and indicated that his clavicular pain was not an issue at this time. During the May 2015 Board hearing, the presiding judge noted that there did not appear to be any evidence of a current clavicle disability. The Veteran testified that his neck hurt and sometimes the pain radiated. However, he was not diagnosed with a condition because he was never seen by a doctor; “[y]ou won’t see a diagnosis from one of them underlings, see. They just see you; the doctor delegates his authority and you never really see a lot of doctors.” At the July 2017 VA shoulder and arm examination, the examiner did not note a current clavicle diagnosis. The Veteran did not recall any details of his clavicle pain, but the examiner noted that medical records confirmed that he had problems with his clavicles in the mid-1970s. The examiner further indicated that a clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition was suspected, but did not make a diagnosis. Based on the medical evidence, the examiner concluded that the clavicular condition noted on the January 1978 examination was related to service; it had resolved, however, and was not currently diagnosed. The Board finds the July 2017 VA examination highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a current disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for clavicular pain must be denied. 3. Back The Veteran received a VA examination in July 2017 and the examiner noted that the Veteran did not have a thoracolumbar spine condition. The Veteran recalled having mid and low back pain while in service, but denied a specific injury. He did a lot of heavy lifting and moved barrels of oil while in service, but was medically evaluated and told to do exercises. The examiner noted current symptoms of intermittent back pain, and indicated that the Veteran was taking medication. In light of the medical evidence, the examiner concluded that the Veteran’s back disability was as least as likely as not incurred in or caused by service, as the medical records show the condition was addressed on the January 1978 separation examination. However, the examiner found that the back condition had since resolved and was not currently diagnosed. The Veteran received another VA examination in February 2018, and the examiner noted a diagnosis of lumbosacral strain from July 2015. The Veteran exhibited symptoms of chronic low back pain, but the frequency was seldom. On a scale of 1 – 10, the pain was a 7. Bending forward and driving aggravated his pain, and it was relieved by doing stretching exercises. Based on a review of the evidence, the examiner concluded that the claimed condition was less likely than not incurred in or caused by service. She found that there was a 20-year gap (from 1980 to 2000) where no records exist to substantiate the claim of a back condition. At the outset, the Board finds the conclusion of the February 2018 examiner to be of diminished probative value, as she relied on a lack of documentation to support her conclusion that the Veteran’s back strain was not related to service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Board finds the July 2017 VA examination probative and concludes that service connection for lumbosacral strain is warranted. Even though that examiner did not find a current disability, the examiner still found that the Veteran did have a previous back disorder that was related to service. Therefore, the record contains a positive nexus opinion without the acknowledgement of a current disability and a second opinion that acknowledges the continued existence of lumbosacral strain but does not find a nexus. Therefore, examining the record in a light most favorable to the Veteran, and there being no evidence attributing the lumbosacral strain to post-service etiology, the Board finds that the opinions of record are essentially in equipoise, and that service connection for lumbosacral strain is therefore warranted. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 4. Bilateral Knees At the January 1978 separation examination, the examiner noted that the Veteran had recurrent back pain. There was no trauma involved, and there was no evaluation nor treatment. The pain lasted for three years and was intermittent. The Veteran received medical treatment in March 1978 and the examiner noted a right knee ligament strain. The Veteran’s major duty restrictions included no lifting more than 20 pounds, no standing for more than 20 minutes, no walking more than one block, and no squatting. The Veteran submitted correspondence in August 2010 and indicated that he injured his right knee in 1978 when he was stepping out of his line truck. His foot lodged in a hole and he spun “like a top on my knee, because the foot got locked in the hole.” He went to the hospital and was given exercises to complete after his knee heeled. The Veteran indicated that he did not continue treatment because he could not afford to do so. Pursuant to the November 2015 Board decision, the Veteran received an examination in July 2017 and the examiner noted a diagnosis of bilateral knee strain from 1977. The Veteran reiterated that he stepped into a hole with his right leg during service, and he had immediate pain and swelling. He stated that he started having left knee pain after being diagnosed with heel spurs. The examiner, however, did not offer a specific opinion with regards to the etiology of the Veteran’s right knee disability. With regards to the left knee disability, the examiner concluded that it was as least as likely as not proximately due to or the result of the Veteran’s right knee condition. She found that a right knee injury can cause change in gait leading to strain of the left knee. The Veteran received another VA examination in February 2018, and the examiner noted a diagnoses of a right knee ligament tear from March 1978, and right knee medial compartment narrowing, right knee strain and right knee arthritis from July 2017. After reviewing the medical evidence, the examiner concluded that the conditions were less likely than not incurred in or caused by service. She found that the evidence of record did not show ongoing medical care. There was a lack of medical records from the 1980s until 2007 when a right knee x-ray showed mild narrowing of the medial compartment without degenerative changes. As there was no evidence of chronicity of care, the examiner concluded that a nexus had not been established. At the outset, the Board finds the conclusion of the February 2018 examiner to be of diminished probative value, as she relied on a lack of documentation to support her conclusion that the Veteran’s right knee disabilities were not related to service. Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Board finds the Veteran’s lay statements with regards to the etiology of his right knee conditions highly credible. He has not alleged any other injury to his right knee since then, and the July 2017 VA examiner accepted the origin of his right knee issues as service related. Furthermore, she found that the condition was severe enough that it led to changes in the Veteran’s right knee. In light of the diminished probative value of the negative nexus opinion, the Board will give the Veteran the benefit of the doubt and conclude that service connection for his right knee disabilities is warranted. With regards to the left knee strain, the Board finds the July 2017 VA examination probative and concludes that service connection for left knee strain is warranted. The examiner considered the Veteran’s history and in-service experiences, and provided a thorough rationale for her conclusions. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 5. Acne Vulgaris The Veteran’s service treatment records show that he did not have acne at his entrance examination and he did not report a history of acne at that time. He was seen for acne on the face and back in September 1971. He was seen again for acne in August 1976. His January 1978 separation examination reflects that he had acne vulgaris and notes a 12-year history of intermittent acne of the face and back. Post service, a March 2009 VA Agent Orange examination found scarring on the back that was noted by the Veteran as being due to prior acne. In an August 2010 statement, the Veteran indicated that while he may have had a few pimples prior to service, he did not have severe acne. At the May 2015 hearing, he indicated that he did not have acne prior to active service. The Veteran was afforded a VA examination in March 2010 and diagnosed with acne. The examiner opined that the Veteran’s acne existed prior to active service and there is no objective evidence of aggravation beyond the normal progression of the condition. Pursuant to the November 2015 Board remand, the Veteran was afforded another VA examination in July 2017. The examiner opined that the Veteran’s acne clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by service. She found that there was no medical evidence that showed that the acne was worsened due to his time in service. At the outset, the Board finds that July 2017 examiner’s rationale does not rise to the clear and unmistakable level. Giving the Veteran the benefit of the doubt, the Board therefore finds that the Veteran did not have acne upon entry. As such, the Veteran is presumed sound with respect to this order. That presumption has not been rebutted, and the Veteran’s claim is one for direct service connection as to acne vulgaris. Therefore, the Board’s analysis must turn to the question of whether the Veteran currently suffers from acne, and, if so, whether this disorder began in or is otherwise due to his military service. In this regard, the Board finds that there is ample evidence that the Veteran sought treatment for acne during service. The record indicates that the Veteran sought treatment in 1971 and 1976, and acne was noted on the January 1978 separation examination. Furthermore, although the July 2017 examiner found that the Veteran’s acne had resolved, there was a competent diagnosis from March 2010. In light of the foregoing, and resolving any doubt in the Veteran’s favor, the Board concludes that the Veteran’s acne vulgaris had its onset in active service and that service connection for acne vulgaris is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel