Citation Nr: 18156533 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 09-17 665 DATE: December 10, 2018 ORDER 1. Entitlement to service connection for bilateral shoulder disability, to include as secondary to service-connected right above the knee amputation is denied. 2. Entitlement to service connection for bilateral wrist disability, to include as secondary to service-connected right above the knee amputation is denied. 3. Entitlement to service connection for left hip disability, to include as secondary to service-connected right above the knee amputation is denied is denied. 4. Entitlement to service connection for left knee disability, to include as secondary to service-connected right above the knee amputation is denied. 5. Entitlement to service connection for left ankle disability, to include as secondary to service-connected right above the knee amputation is denied. FINDINGS OF FACT 1. A bilateral shoulder disability did not begin during active military service, and no such disability has been caused or made worse by service-connected right above the knee amputation. 2. A bilateral wrist disability did not begin during active military service, and no such disability has been caused or made worse by service-connected right above the knee amputation. 3. A left hip disability did not begin during active military service, and no such disability has been caused or made worse by service-connected right above the knee amputation. 4. A left knee disability did not begin during active military service, and no such disability has been caused or made worse by service-connected right above the knee amputation. 5. A left ankle disability did not begin during active military service, and no such disability has been caused or made worse by service-connected right above the knee amputation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral shoulder disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for bilateral wrist disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for left hip disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for left knee disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for left ankle disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of the Veteran who served on active duty from August 1979 to July 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland Ohio, which granted service connection for a psychiatric disorder and assigned a 10 percent disability rating effective May 2006. A February 2008 rating decision denied service connection for the issues currently. on appeal. Prior to his death, the Veteran perfected appeal for the issues indicated above. The Veteran died in January 2011. As a matter of law, claims do not survive the death of an appellant. The Veteran’s widow, however, subsequently and timely requested to be substituted as the appellant for purposes of processing the claim to completion. See 38 U.S.C.§ 5121A; 38 C.F.R. § 3.1010 (b). The RO found the appellant in this case is a properly substituted claimant. Therefore, the Veteran’s surviving spouse has been substituted for the Veteran. Prior to his death the Veteran had requested a hearing before a Veterans Law Judge at the local VA office. He was not afforded this hearing before his death. After the substitution of the Veteran’s widow as the appellant, she submitted a VA Form 9 in June 2016 which indicated that a Board hearing was not requested. Accordingly, the Board finds that the request for a hearing before the Board has been withdrawn. In April 2017, the Board remanded the issues on appeal. For the reasons discussed below, the Board finds there has been substantial compliance with the directives of the April 2017 remand. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, to include arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service connected disease or injury. Disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for bilateral shoulder, bilateral wrist, left hip, left knee, and left ankle conditions are denied. The appellant contends that the Veteran had bilateral shoulder, bilateral wrist, left hip, left knee, and left ankle disabilities related to service by way of his service-connected right leg above the knee amputation. There has been no contention, and the evidence does not show that the disabilities at issue had their onset in service or were aggravated during service. Rather the claim is one of entitlement to service connection on a secondary basis. Specifically, that these disabilities were caused, or aggravated, by service-connected right leg above the knee amputation. The question for the Board is whether the Veteran has current disability that was either proximately caused by or proximately aggravated by a service connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For the reasons discussed below, the Board concludes that, while the medical evidence shows diagnosed tendonitis of the bilateral shoulder, left hip strain with arthritis, left knee strain, and left ankle strain, the preponderance of the evidence is against finding that disability of the bilateral shoulder, bilateral wrist, left hip, left knee, and left ankle is proximately due to or the result of his service connected right leg above the knee amputation. As detailed in the prior remand, the January 2008 VA examination and November 2009 addendum medical opinion did not provide an opinion as to the relationship between the claimed disabilities and the Veteran’s service-connected amputation or provide adequate explanation why an opinion cannot be provided without resorting to speculation. The January 2008 VA examination report shows the examiner diagnosed tendonitis of the bilateral shoulder, left hip strain with arthritis, left knee strain, and left ankle strain finding that any relationships to all of these diagnoses to the Veteran’s amputation are purely speculative. The examination further indicates that x-ray of both shoulders and left hip identified arthritis; and left knee and left ankle identified old chip and spur. In this regard, coupled with the January 2008 VA medical examiners diagnoses (despite the availability of radiographs), the evidence of record does include the January 2008 x-ray reports of the bilateral shoulder, left hip, left knee, and left ankle. There reports were not unconsidered in the medical opinion. In this regard, in April 2017, the Board remanded the appeal to obtain another medical opinion clarifying the January 2008 and November 2009 VA examiner’s opinion regarding the relationship between the claimed disabilities and the Veteran’s service-connected amputation, and to obtain outstanding private records regarding the Veteran’s conditions. Following review of the claims file, the March 2018 medical professional provided an opinion that the claimed conditions were less likely than not (less than 50 percent probability) causally related to or aggravated by service connected disabilities, to include right above the knee amputation. In so finding, the practitioner cited to relevant medical evidence of record. The practitioner explained that review of the medical evidence does not reveal any objective evidence of deficits in range of motion or strength of bilateral shoulder, bilateral wrists, or left hip or left ankle. Additionally, radiographs were not available for review therefore the diagnoses of record are not supported by medical evidence. The medical professional noted deficits in the Veteran’s left hip and left knee motion. Her conclusion, however, was that the claimed disabilities were not caused or aggravated by the service-connected right knee disability. Finally, VA treatment records also show the Veteran reported with complaints of right shoulder pain reporting more than typical use of his upper extremities since the above the knee amputation. A March 2002 to September 2002 VA rheumatology note indicates examination revealed right shoulder with decreased range of motion to 90 degrees with abduction and left shoulder noted as full range of motion. There was no point tenderness. The assessment was right shoulder rotator cuff injury and right shoulder tendonitis treated with injections for pain and therapy to aid pain free use of the right shoulder. Subsequent records pertinent to the claims include the Veteran’s reported problems with his prosthesis. Specifically, a July 2007 VA treatment record indicates the Veteran reported ongoing problems with “ill-fitting prosthesis”, first reported on January 2007. The Veteran reported that the fit of the leg was not good and he now was having problems with his left ankle, left hip, and back. Reporting the inability to stand or walk without discomfort as a result of the prosthesis. With respect to the claims of service connection for bilateral shoulder, bilateral wrists, left hip, left knee or left ankle, secondary to above the knee amputation, the Board finds that service connection is not warranted. Specifically, the January 2008 VA examination report with November 2009 addendum opinion, coupled with the March 2018 medical opinion regarding the etiology of the Veteran’s bilateral shoulder, bilateral wrists, left hip, left knee and left ankle weighs against these claims. The examination reports and the March 2018 medical opinion indicates the practitioners reviewed the overall clinical data and concluded that the post-service treatment demonstrates the Veteran’s symptoms, which were not severe in nature to result in any chronic disability of the bilateral shoulder, bilateral wrist, left hip, left knee, and left ankle disability currently diagnosed. In so finding, the VA practitioners considered the Veteran’s symptoms in service referencing his reports of pain and treatment for these conditions. The Board therefore affords the March 2018 medical opinion significant probative weight unfavorable to the Veteran’s claim. Specifically, the examiner explained the reasons for the conclusion based on an accurate and comprehensive review of the relevant evidence of record, including the Veteran’s lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Post-service treatment records also document treatment for pain of the bilateral shoulder, bilateral wrists, left hip, left knee and left ankle. There is no associated medical opinion linking these conditions to service-connected above the right knee amputation. In this regard, the Board acknowledges the Veteran’s statements as noted on the VA examination reports and medical evidence of record and those of the appellant, the Veteran’s surviving spouse, but finds that they provide no insufficiently probative evidence to grant any of the claims. The Board has not ignored the statements of the Veteran and the appellant as to their belief of a relationship between his service-connected right above the knee amputation and his claimed disabilities. The statements with respect to his condition, antalgic gait, and pain, are considered to be competent evidence within his personal experience. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As for the statements, they are unsupported by the evidence of record. The Veteran was competent to report his symptoms. However, the statements are less probative than the medical evidence of record, which reflect no current disorder that has been caused or made worse by service-connected right knee amputation. The Board finds that the record does not show that the appellant, or the Veteran, possessed the necessary expertise to render a competent medical opinion in this case. These are complex medical questions that can only be answered by a health care professional with the requisite medical expertise to offer competent testimony on this question. Other than the lay statements, there is no indication of current bilateral shoulder, bilateral wrists, left hip, left knee or left ankle disability secondary service connected right knee amputation. Consequently, the Board gives more probative weight to the competent medical evidence. The competent evidence of record supports the conclusion that the claimed disabilities are not attributable to his right knee amputation, either on a direct basis or on the basis of aggravation. Moreover, there has been no showing that any disability related to the bilateral shoulder, bilateral wrist, left hip, left hip, left knee, and left ankle disability is traceable to a period of qualifying active military service. The Veteran had no problem during any period of active military service with these joints. Consequently, there is no basis to award service connection, either on a direct basis or secondary basis. For the above reasons, the Board concludes that the preponderance of the evidence is against granting the claim for service connection for a bilateral shoulder, bilateral wrist, left hip, left disability, and granting service connection for bilateral leg disability or hypertension on any theory of entitlement raised by the appellant or the record. Thus, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel