Citation Nr: 18154955 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-52 366 DATE: December 4, 2018 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. A currently diagnosed left knee disability is etiologically related to service. 2. A currently diagnosed right knee disability is etiologically related to service. 3. A currently diagnosed right shoulder disability was not first manifested on active duty or within the first post service year, and is not otherwise related to military service. 4. A currently diagnosed left shoulder disability was not first manifested on active duty or within the first post service year, and is not otherwise related to military service. 5. Currently diagnosed depression and anxiety were not first manifested on active duty or within the first post service year, and are not otherwise related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 5. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1997 to March 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from January 2015 and October 2015 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Service connection for knee disabilities was denied in the former; the shoulders and psychiatric conditions were addressed in the latter. The Board notes that technically the Veteran failed to file a substantive appeal perfecting her second appeal, but the form filed in connection with the knees was timely for both appeals. Further, in October 2016 the RO sought a statement from the Veteran’s representative and indicated the shoulder and psychiatric claims were in fact still on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). “If VA treats an appeal as timely filed, [an appellant] is entitled to expect that VA means what it says.” Id. at 47. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed condition. Knees The Veteran contends that his knee disabilities are related to injuries sustained during Airborne training. Service treatment records document complaints of knee pain following his third parachute jump, and the Veteran competently and credibly reports that he has experienced knee pain and symptoms since that time. VA records reflect that he sought treatment in 2004 for knee pain that had been present, with swelling, for at least the prior four years and worsening. He has continued to report experiencing knee pain. Although a December 2014 VA examiner opined that the knee disabilities were less likely than not related to service, such opinion is not adequate. The examiner relied solely upon an absence of documentary treatment records, ignoring the Veteran’s competent and credible lay statements of continuous pain since service. No probative weight may be assigned it. The diagnostic finding of pain with impaired ability to walk or stand for prolonged periods, however, are supported by the record and may be considered. Therefore, the record reflects competent and credible evidence of an injury in service, bilateral knee pain since that time, and a current diagnosis of disabilities of both joints, based on the presence of pain with functional impairment. Service connection must be granted. Shoulders VA treatment and examination records show current left and right shoulder disabilities. Rotator cuff tendonitis and early degenerative changes have been diagnosed. However, review of service treatment records shows no complaints, treatments for, or diagnoses related to shoulder problems. The Veteran alleges that the strain of calisthenics, particularly push-ups, constituted in-service injuries which have caused his left and right shoulder disabilities. He states that some of his treating doctors have told him this. A VA examiner opined in October 2016 that such would not be sufficient to have caused the diagnosed problems, however. He noted the absence of medical science that showed these basic exercises were harmful or contributed to shoulder problems “unless there has been a direct insult.” In other words, in the absence of an actual injury, exercise is not sufficient to have caused the diagnosed conditions. Treatment records do not include statements similar to those reported by the veteran associating the shoulder problems with push-ups. Additionally, when describing his pain, the Veteran reported that it began approximately 6 years after separation from service. The sole competent and credible evidence of record regarding a nexus is negative. While the Veteran is competent to report what doctors state to him, his reports, unsupported by the record, carry no probative weight of their own, as he lacks personal training and knowledge to form an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Further, even though the Veteran certainly did push-ups in service, such does not constitute an injury. In the absence of two of the three elements of service connection, the claims must be denied. Acquired Psychiatric Disorder Current medical records show diagnoses of anxiety disorder and a depressive disorder. However, service treatment records are negative for both conditions, or any complaints or indicators of such. Moreover, the Veteran has made no report or allegation indicating how such might be related to service. At most, on his October 2016 Notice of Disagreement he reported that a doctor told him he had probably been dealing with depression and anxiety “while he was in the service” but offered no basis for this observation. There is, essentially, an absence of evidence. The record on this issue consists solely of the Veteran’s bald assertion. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between service, and any current psychiatric condition, entitlement to the benefit sought is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel