Citation Nr: 18149781 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-34 530 DATE: November 13, 2018 ORDER Entitlement to service connection for a bilateral shoulder condition is denied. Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD), is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for bilateral lower extremity radiculopathy as due to a lumbar spine disability is denied. REMANDED Entitlement to service connection for a dental condition is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral shoulder disability did not begin during active service and is not otherwise related to service. 2. The Veteran’s respiratory condition did not begin during active service and is not otherwise related to service. 3. The Veteran’s left knee disability did not begin during active service and is not otherwise related to service. 4. The Veteran’s lumbar spine disability did not begin during active service and is not otherwise related to service. 5. The Veteran’s bilateral lower extremity condition did not begin during active service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 5. The criteria for entitlement to service connection for a bilateral lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that additional records have been added to the claims file since the issuance of the July 2015 statement of the case (SOC). However, the Board finds such evidence not relevant to the issues of service connection for a bilateral shoulder disability, respiratory disability, left knee disability, lumbar spine disability and bilateral lower extremity disability. 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 April 2013 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 (2018). 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. To this point, in September 2013 the Veteran was notified that his service treatment records (STRs) are unavailable for review. When service records are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran’s medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Furthermore, the Board is satisfied that the June 2015 VA examination and opinion are adequate. The Board acknowledges the Veteran’s August 2015 statement and his assertions that the June 2015 opinion relied upon incorrect information with regard to his post service injuries. However, the Board finds that the June 2015 examiner relied not on these statements alone that the Veteran has asserted are incorrect, but instead on the fact that the Veteran did not seek treatment for his disabilities until many years following service and on the fact that the Veteran’s post service career, which he continued for decades after service, was a strenuous practice which was more likely to have caused his current arthritis in his joints. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA’s duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2018). There is a presumption of service connection for a chronic disease listed under 38 C.F.R. § 3.309(a), to include arthritis, that manifests during service or to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a bilateral shoulder condition, lumbar spine disability, left knee disability, and bilateral lower extremity radiculopathy. With regard to the issues on appeal, the existence of current disabilities is not at issue in these appeals. 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. The Veteran has been diagnosed with bilateral shoulder and lumbar spine degenerative arthritis, with associated radiating pain in his lower extremities, and with osteoarthritis of the left knee in his June 2015 VA examinations. The Board finds that Veteran’s arthritis of the bilateral shoulders, lumbar spine and left knee as well as radiculopathy of the lower extremities did not manifest in service, or within the first post-service year, and continuity of symptomatology of arthritis is not present. Accordingly, the Veteran’s arthritis is not entitled to service connection on a presumptive basis under § 38 C.F.R. §§ 3.307 and 3.309 or for continuity of symptomatology under 38 C.F.R. § 3.303(b). With regard to in service injury, the Veteran stated in correspondence that his shoulder condition began in service in October 1973 when his upper body was pinned between a rear door and an APC. Regarding his lumbar spine and associated bilateral lower extremity radiculopathy, the Veteran reported that in June 1975 he was slammed down on the back deck and also noted in the early 1970s he sustained three separate back injuries due to heavy lifting, being struck by a tree, and sustaining a dynamite blast which caused him to be airborne. Regarding the Veteran’s left knee disability, he stated that his injury happened at some undetermined time during service either when he sustained a blast off “Pork Chop Hill,” or when a door slammed on his leg, or when he was hit with a sledgehammer. The Board finds that the Veteran has inconsistently reported the nature of his in-service injuries. For example, in the January 2011 SSA Disability Evaluation, the Veteran asserted that he injured his back in the early 1970s during three separate events – heavy lifting, being struck by a tree while in transit on a military vehicle, and from a dynamite blast. He stated he never had x-rays and did not take time off while in the military because it was frowned upon. During his June 2015 VA examination, he reported that he was blown off a hill, was knocked out, and was taken for medical care, which is inconsistent with what was reported in the January 2011 SSA Disability Evaluation. The Board observes the August 2015 statement from the Veteran wherein he refutes how his disabilities were reported in various medical reports, to include by the June 2015 VA examiner. The Board finds that the most probative evidence of record is contained in medical records, as at the time of treatment, a patient will most likely accurately report the symptoms experienced, as well as their history, as the goal is to obtain accurate treatment from a medical provider. Moreover, the medical provider has the goal of effectively treating the patient, so the reports provided documenting the treatment visits will be accurate and reflective of the symptomatology and background of any injury or event provided by the patient. Thus, the Board finds the medical records more probative and ultimately more persuasive than the statements provided by the Veteran wherein he is attempting to correct what he stated to medical providers in the medical records. Further, the Board finds that even assuming without deciding that the Veteran sustained injuries as he describes during service, the most probative evidence of record reflects that he did not report continuing back, knee, bilateral shoulders, or bilateral lower extremity complaints until many years after his separation from service. Thus, to the extent the Veteran is asserting that he injured his back, knee, bilateral shoulders, and bilateral lower extremities during service and has had symptoms related to such since service, the Board does not find his assertions credible as they are outweighed by the contemporaneous evidence of record. For example, the Veteran began seeking treatment at VA in 1995. The Board finds it significant that the Veteran had annual physicals in June 2000, June 2002, and July 2003 but did not report any ongoing complaints related to his shoulders, left knee, back, or lower extremities. Moreover, with regard to the back condition the Veteran initially reported back problems in February 2004 when he reported hurting his back lifting a snowmobile. See February 2004 Iron Mountain VAMC record. With regard to his bilateral shoulder condition the Veteran reported in February 2009 that he hurt his shoulder while shoveling; similarly, in March 2012 he reported knee problems due to heavy lifting. See February 2009 Iron Mountain VAMC record. These records weigh against the Veteran’s credibility as to the assertions that he has had back, shoulder, knee, and lower extremity problems since service. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). The Board finds the lack of reports of any back, shoulder, left knee, and lower extremity disability, despite receiving treatment on a regular basis since at least 1995, until approximately 27 years after his separation from service to be more probative than his assertions of experiencing symptoms since service. In September 2013 the Veteran was afforded a VA examination for his back, bilateral lower extremity, bilateral shoulder and left knee disabilities. The examiner diagnosed the Veteran with arthritis of the lumbar spine and bilateral shoulder and left knee. At that examination the Veteran reported pain in his bilateral lower extremities due to radiculopathy from his back disability. Thereafter, in June 2015 the Veteran was afforded VA examinations for his back with associated bilateral radiculopathy of the lower extremities, bilateral shoulder and left knee disabilities and his reported bilateral lower extremity radiculopathy. The examiner opined that the Veteran’s claimed conditions were less likely than not caused by his claimed in service incidents. The examiner based his opinion on the fact that the Veteran’s statements regarding his claimed injuries have been inconsistent over the years. Specifically, the examiner noted that the Veteran started seeking VA treatment in 1990s, but did complain of his conditions until many years after service. Furthermore, following his discharge he worked as a mason for approximately 30 years, which is a strenuous occupation. The examiner took note that the Veteran failed to report a back condition until February 2004 related to lifting a snow mobile, failed to report a shoulder condition until February 2009 related to shoveling, and failed to report a knee condition until March 2012, related to heavy lifting. Therefore, the examiner concluded that, due to the inconsistencies in the Veteran’s testimony and the lack of medical evidence of any chronic injuries in service, it is less likely as not that the conditions are related to service and more likely related to other causes. The June 2015 VA examiner’s opinion is afforded probative value, as the examiner reviewed the claims file, provided sufficient rationale for her opinions, and based her opinions on examination of the Veteran, on review of the Veteran’s medical records and history. The June 2015 VA examiner also has the requisite medical training and expertise to determine the etiology of the Veteran’s back with associated radiculopathy, shoulder and knee disabilities. The Board takes note of the Veteran’s assertions to the contrary of this VA opinion, specifically the Veteran’s August 2015 statement in which he submitted that the June 2015 VA examiner failed to adequately opine on his disabilities. The Veteran stated that the examiner’s reliance on his back injury being related to moving a snowmobile and his shoulder injury being related to his shoveling specifically were in error and the treatment notations were taken out of context. The Veteran further detailed the work he did post service in construction and masonry, asserting in general that the work was not strenuous enough to have led to his current arthritis. As previously noted, the Board is not persuaded by the Veteran’s assertion that the June 2015 VA examiner misreported his symptomatology and history. Moreover, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding diagnosis or etiology. Thus, his opinion that his post-service work did not contribute to the etiology of his claimed disorders is afforded little probative value. Accordingly, for the reasons stated above, the claims are denied. 2. Entitlement to service connection for a respiratory condition, to include COPD. The Veteran has claimed that his current respiratory disorder is related to his service. Specifically, the Veteran asserts that in service in September 1974 he was taken to the hospital for respiratory distress and that it was very hard to breathe. He does not remember if he was hospitalized. The Board notes that the Veteran was diagnosed with COPD in September 2013. In September 2013 the Veteran was afforded a VA examination for his COPD to determine the etiology of such. The Veteran reported that he started smoking in 1975 and has smoked one half to one pack per day for nearly 40 years. The examiner opined that the Veteran’s COPD was less likely as not related to his service and more likely related to known deleterious effects of cigarette smoking. The Veteran was afforded another examination in June 2015, at which time the examiner opined that the Veteran’s condition was less likely as not related to service, finding that the Veteran’s first documented complaint of erratic breathing was in March 2012, with a diagnosis of COPD following six months later. The examiner found that due to the Veteran’s inconsistent statements and lack of medical evidence of any respiratory problems before 2012, it is less likely than not that the Veteran’s service caused his respiratory disorder. The Board observes the Veteran’s contentions in the August 2015 statement wherein he noted that he had reported respiratory problems prior to 2012. VA medical records do reflect that in November 2001 he complained of a two week history of various symptoms including a non-productive cough and difficulty breathing. The assessment was sinusitis, bronchitis, and fatigue. He was diagnosed with acute bronchitis in October 2002. Even discounting the June 2015 VA examiner’s opinion, the Board still finds probative the September 2013 VA examiner’s opinion that it was less likely than not that his COPD is related to service, but more likely related to his smoking history. This examination was based on a review of the medical evidence, evaluation of the Veteran, and contained a rationale for the conclusion reached. Thus, the Board finds it probative and persuasive. There is no evidence of a nexus between the Veteran’s current COPD and his service. As to the Veteran’s claim that his COPD is related to his service and not related to his smoking, the etiology of COPD falls outside the realm of common knowledge of a layperson and his assertion is afforded little probative value. See Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1733 n. 4. For the reasons stated above, the preponderance of the evidence is against the claim and it is denied. REASONS FOR REMAND Entitlement to service connection for a dental condition is remanded. The Board finds that more development is necessary prior to final adjudication of the claim on appeal. VA is obliged to provide an examination or an opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he has a current dental disability that is a result of an in service fall on a cactus. Notably, the RO scheduled the Veteran to undergo a VA examination for his claimed dental disability in May 2015. However, the examination was cancelled as the Veteran failed to appear. Thereafter, in a May 2015 statement and in subsequent emails to his Congressman, the Veteran informed the RO that he was not able to appear at the examination because he was unable to travel the distance to which the examination was scheduled due to his health and financial situation. The Veteran, however, is notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. The Board notes that “[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed dental condition. When scheduling the Veteran for the examination, attempts should be made to schedule such at the closest available facility. The examiner should furnish an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a current dental condition and if so, if the Veteran’s disability had its onset in service, or is related to his reported fall on a cactus in service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. The Veteran is advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel