Citation Nr: 18151591 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 13-19 014 DATE: November 20, 2018 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for a bilateral hand disorder is denied. REMANDED Entitlement to service connection for a bilateral ankle disorder is remanded. FINDINGS OF FACT The Veteran’s current right shoulder disorder, bilateral knee and bilateral hand disorders were not incurred in, and are not otherwise related, to his active service; and arthritis of the right shoulder, bilateral knee and hands did not manifest to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral hand disorder have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1953 to December 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2015 hearing before a Veterans Law Judge (VLJ) that is no longer at the Board; a transcript is of record. In a May 2016 letter, VA notified the Veteran that the VLJ that he testified before was unavailable to decide the case and informed him that he could elect to have another hearing before a different VLJ. In September 2016, the Veteran indicated that he did not want another hearing. In June 2015, December 2016, and November 2017, the Board remanded the claims on appeal for further development. With regards to the issues of a bilateral knee disorder, bilateral hand disorder, and a right shoulder disorder, the Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). With regards to the issue of a bilateral ankle disorder, the Board’s directives have not been substantially completed and will be further discussed in the remand portion of the decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the diseases explicitly recognized as “chronic” under 38 C.F.R. § 3.309 (a), the provision of 38 C.F.R. § 3.303 (b) provide an alternative method of establishing the second and third elements through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The list of chronic diseases includes arthritis. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, 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. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 1. Entitlement to service connection for a right shoulder, bilateral knee, and bilateral hand disorder. The Veteran contends that his current disorders are related to his military service. Specifically, he contends that his current disorders are due to specific events in service and generally the stress and strain put on his body during service. See February 2012 Statement; April 2015 Transcript. For the reasons that follow, the Board finds that service connection for a right shoulder, bilateral knee, and bilateral hand disorder is not warranted. VA treatment records, private treatment records, and a January 2016 VA examination note a diagnosis of arthritis of the right shoulder, bilateral knees, and bilateral hands. As such, the requirement for a current disability is satisfied. Service treatment records are silent for any complaints, treatment, or diagnoses related to the Veteran’s right shoulder, knees, or hands. While an August 1954 treatment record notes a complaint of pain in the left suprascapular area, nothing was noted for the right side. The Report of Medical Examination at separation shows the upper extremities, lower extremities, and musculoskeletal system as normal. With regards to the right shoulder, the Veteran reported that during basic training, he shot an M1 rifle frequently and the recoil of the gun injured his right shoulder. See April 2015 Hearing Transcript. The Veteran’s DD 214 shows that his military occupational specialty (MOS) was military policeman. The Board finds that the Veteran’s contention is credible and is consistent with the circumstances, conditions, and hardships of his service. 38 U.S.C. § 1154(a) (2012). During the April 2015 hearing, the Veteran also testified that he injured his hands in service by doing push-ups on his fingertips during basic training. He also testified he injured his knees during rifle training during which suffered falls on his knees and was required to march and run. Again, the Board finds that the Veteran’s contentions are credible and are generally consistent with the circumstances, conditions, and hardships of his service. Id. Turning to the third requirement of service connection, a causal nexus, the Board finds this requirement is not established. The Veteran has a current diagnosis of arthritis in the right shoulder, bilateral knees, and bilateral hands, which is a chronic disease. See 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309(a). However, arthritis was not noted in service and there is insufficient evidence to identify or establish arthritis as a disease entity therein. Further, to the extent the Veteran’s lay assertion of continued symptomatology is intended to establish a link to service, it is outweighed by the May 2018 VA medical opinion. In that opinion, the examiner considered the Veteran’s reported continuity of pain but determined that it is less likely than not that arthritis had onset in service or is otherwise related to service. Therefore, service connection is not warranted pursuant to the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity and continuity of symptomatology. There also is no competent evidence showing arthritis manifested to a compensable degree within one year of separation from service. The evidence also does not reflect, nor does the Veteran contend, that a diagnosis of arthritis of the right shoulder, bilateral knees, or bilateral hands was provided within a year of service discharge in December 1954. Thus, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection. Service connection for the Veteran’s current disorders may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s current disorders and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran underwent VA examinations in July 2011, January 2016, and April 2017, from which negative nexus opinions were obtained. However, in the prior remands, the Board found each opinion to be inadequate. Thus, subsequent to the November 2017 remand, another VA medical opinion from a physician at the VA Appeals Resource Center was obtained in May 2018. The examiner opined that the Veteran’s current right shoulder disorder, bilateral knee disorder, and bilateral hand disorder are less likely than not related to his military service, and it is less likely than not that his arthritis began in service. The examiner provided a detailed rationale in which she considered and addressed all pertinent evidence of record, including the Veteran’s lay statements, service treatment records, post-service private and VA treatment records, nexus statements from the Veteran’s private physicians, and a lay statement from the Veteran’s sister, J.M. The Board finds this opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges a July 2013 statement from the Veteran’s VA treating physician, Dr. A.P., which reports that the Veteran’s statement of how he incurred osteoarthritis of his shoulder while in the Army is conceivable with reason. However, no rationale was provided for Dr. A.P.’s opinion. As such, it is afforded no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves, supra. The Veteran also submitted statements from his private physician, Dr. M.W., in July 2013, January 2015, and October 2015. Dr. M.W. generally indicates that the Veteran’s osteoarthritis is related to his military service. Dr. M.W. reports in the July 2013 statement that the Veteran suffers from severe degenerative arthritis of both knees, most likely related to military service. In the January 2015 statement, Dr. M.W. opines that the Veteran’s osteoarthritis of multiple joints is secondary to his military service. In the October 2015 statement, Dr. M.W. reported that the Veteran’s osteoarthritis of multiple joints, including both knees and shoulders, began during service. However, like Dr. A.P.’s opinion, Dr. M.W. provides no rationale for his conclusions. As such, they are afforded no probative weight. Id. Additionally, the Veteran’s sister, J.M., a retired nurse, provided a lay statement in July 2013. In the statement, J.M. reported that the Veteran’s statements as to how he incurred osteoarthritis while in Army service is high conceivable. J.M. explained that damage to cartilage of the joints by extreme physical activity can cause osteoarthritis to be set in effect at any age. She also explained that it is a degenerative and progressive condition. J.M. also reported that prior to service, the Veteran did not appear to have any physical problems or complaints, but after service, he appeared to walk with a slight limp and have constant body pain. The Board notes that, as a lay person, J.M. is competent to report observable symptomatology, such as the Veteran’s physical issues she observed after service, and the Board finds her statements credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). To the extent J.M. provides a favorable nexus opinion, she, as a nurse, is competent to offer a nexus opinion in this matter in light of her training and experience in the medical field. However, the Board finds the opinion is of minimal probative value because it is based solely on the Veteran’s reported history without review of the claims file and is not supported by clinical data or an adequate rationale. The Board finds the May 2018 VA opinion, provided by a physician who necessarily has more training and expertise than a nurse, more probative than J.M.’s opinion. While the Veteran believes his right shoulder, bilateral knee, and bilateral hand disorders are related to an in-service injury, event, or disease, including shooting an M1 rifle; doing push-ups on his fingertips; and marching, running, and falling during rifle training, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board also acknowledges the contention expressed in a September 2016 Written Brief Presentation -that the Veteran’s Report of Medical Examination at separation is not credible due to inconsistencies between it and the Veteran’s Report of Medical Examination at enlistment. While the Board does not make a finding regarding the credibility of the Veteran’s Report of Medical Examination at separation, it notes that its decision today, and the May 2018 examiner’s opinion, is not based solely on the Veteran’s Report of Medical Examination at separation, but rather on the cumulative evidence of record. Further, to the extent that the representative attempts to offer his lay interpretation of the contemporaneous clinical findings noted on either the entrance or separation examination reports, he is not competent to do so because he is not shown to possess any medical training, knowledge or expertise. Given the foregoing, the Board finds the most competent and probative evidence of record weighs against a finding of service connection for the Veteran’s right shoulder, bilateral knee, and bilateral hand disorders. As such, service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral ankle disorder is remanded. While the Board regrets further delay, a remand is required to obtain substantial compliance with a prior Board remand. Stegall v. West, 11 Vet. App. 268 (1998). During the April 2015 hearing, the Veteran testified that he injured his ankles during an incident in 1953 or 1954 where he dove out of a moving car. He further testified that a police report was created, but he had been unable to obtain it. The December 2016 remand instructed the RO to attempt to obtain the military police report, but the RO failed to do so. As such, the November 2017 remand again instructed the RO to attempt to obtain the military police report, to document all search results, and to document the non-existence or unavailability of the records if applicable. A review of the Veteran’s claim file shows that the RO has not attempted to obtain the 1953 or 1954 military police report. Thus, a remand is required to complete the requested development. The matter is REMANDED for the following action: Attempt to obtain the military police report dated in 1953 or 1954 regarding the reported incident that resulted in the Veteran’s ankle injury when he dove out of a moving car. If any additional information is needed from the Veteran to search for the record, the RO should contact him to obtain such information. If any requested records are not available, or the search for any records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record in a Formal Finding. Required notice must be provided to the Veteran. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel