Citation Nr: 18157372 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-46 054 DATE: December 12, 2018 ORDER Whether new and material evidence has been received to reopen a claim for service connection for right knee disability is granted. Whether new and material evidence has been received to reopen a claim for service connection for left shoulder disability is granted. Entitlement to service connection for left shoulder disability, to include as secondary to service-connected right shoulder disability, is denied. REMANDED Entitlement to service connection for right knee disability is remanded. FINDINGS OF FACT 1. The May 1995 rating decision that denied service connection for right knee and left shoulder disability was final. 2. The evidence received since the May 1995 decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claims denied. 3. A left shoulder disability is not shown to be related to service or has been caused or aggravated by a service-connected right shoulder disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims for service for right knee and left shoulder disabilities. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for left shoulder disability, to include as secondary to service-connected right shoulder disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1974 to May 1987 and from February 1989 to August 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed several issues from the January 2015 rating decision; however, withdrew all issues except the ones currently before the Board. New and Material evidence The RO denied service connection for right knee and left shoulder in a May 1995 rating decision. This decision became final in May 1996. The evidence submitted after May 1995, including private and VA treatment records and lay statements, relates to unestablished facts necessary to substantiate these service connection claims. Therefore, the Board finds that the right knee and left shoulder claims should be reopened. Entitlement to service connection for left shoulder disability, to include as secondary to service-connected right shoulder disability Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year, respectively, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. 1101, 1112; 38 C.F.R. 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. The Veteran asserts that his current left shoulder disability is due to service or alternatively to his service-connected right shoulder disability. The service treatment records (STRs) show no complaints of, or treatment for a left shoulder disability. Post-service treatment records include a March 1995 VA examination report that documents range of motion to internal rotation was somewhat diminished; however, range of motion was still within normal limits. There was no left shoulder disability shown. During a December 2014 VA examination, the examiner documented an extensive review of the Veteran’s file. She indicated that the left shoulder was less likely than not due to or aggravated by the Veteran’s service or service-connected right shoulder, but was more likely due wear and tear, and aging. She reasoned that this theory is not supported by adequate clinical scientific evidence. She indicated that if such were true, one would expect that nearly everyone with pain in one extremity would develop pain in the opposite one, and that simply does not occur. She stated that the shoulder symptoms are in most cases the result of aging change which can occur simultaneously, in both sides, so that the symptoms are commonly bilateral. The examiner stated that symptoms usually begin in the dominant side. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for left shoulder disability. In this regard, the Board places great probative weight on the December 2014 VA examiner’s opinion that the disability was not caused or aggravated by his service or service-connected right shoulder disability. The Board observes that the VA examiner considered the Veteran’s record and medical history in rendering the opinion. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The examiner clearly reviewed the claims file and summarized pertinent clinical records, so she was fully aware of the extent of the Veteran’s claimed disorder. Additionally, she provided an etiological opinion, complete with the rationale described above. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board assigns great probative value to the VA examiner’s opinion. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with degenerative disease of the left shoulder and is therefore considered a chronic disease for VA purposes. 38 C.F.R. 3.309(a). As such, both theories are potentially applicable in this case. Walker, 708 F.3d 1331; 38 C.F.R. 3.303(b), 3.307, 3.309. The Board finds; however, the medical evidence does not show that the Veteran’s degenerative disease of the left shoulder manifested to a sufficient degree in-service to identify the disease entity or within the first post-service year. Indeed, during the March 1995 VA examination, although diminished internal rotation was found, there was no arthritis found, or any left shoulder disability. Further, as there was normal left shoulder range of motion, the left shoulder pain was not functionally limiting. Left shoulder arthritis was not shown until many years following service discharge. The Veteran has contended on his own behalf that his left shoulder is related to his service-connected right shoulder disability. In this regard, lay witnesses are competent to provide statements relating to symptoms or facts that are observable and within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, however, the questions relating to whether the left shoulder disability is related to military service or a service-connected disability are complex medical questions relating to internal medical processes that extend beyond an immediately observable cause-and-effect relationship of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4. Hence, the opinion of the Veteran in this regard is not competent in this case. For the foregoing reasons, the preponderance of the evidence is against the left shoulder claim. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for right knee disability is remanded. The STRs show that in October 1978 and August 1980, the Veteran was seen for history of right knee pain. He was afforded a VA examination of his knees in December 2014. The examiner noted diagnoses of degenerative arthritis in the bilateral knees. The examiner found that the right knee disability was not caused or aggravated by the service-connected left knee disability. The VA examiner did not address the in-service complaints of right knee pain. As such, remand is necessary to obtain an addendum opinion. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding treatment records. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the agency of original jurisdiction determines that the records sought do not exist or that further efforts to obtain those records would be futile. All attempts to obtain records should be documented in the claims folder. 2. Following completion of the above, forward the claims file to an appropriate VA examiner for an addendum opinion regarding the Veteran’s right knee disability. If the examiner determines an additional physical examination would be beneficial, one should be scheduled. Following review of the claims file, the examiner should address the following: For each right knee disability found, is it at least as likely as not (probability of at least 50 percent) that such disability had its onset or is otherwise etiologically related to the Veteran’s active service, to include the in-service right knee complaints documented in October 1978 and August 1980. In offering any opinion, the examiner must discuss the Veteran’s in-service complaints and treatment records, post service complaints, and all lay assertions. With respect to the Veteran’s lay reports, the examiner is instructed that the Veteran is competent to report symptoms observable to a layperson (e.g., pain), and such statements may not be dismissed solely due to lack of documentation in the medical record. A complete rationale/reasoning for any opinion must be provided, including a discussion of the evidence of record and medical principles which led to the conclusions reached. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. McPhaull, Counsel