Citation Nr: 18158487 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-50 161 DATE: December 18, 2018 ORDER Service connection for a right shoulder disorder is denied. Service connection for a right knee disorder is denied. Service connection for a left hip disorder is denied. Service connection for glaucoma is denied. FINDINGS OF FACT 1. The Veteran has status post service dislocation right shoulder surgery. 2. The Veteran does not have arthritis in the right shoulder. 3. There was no in-service right shoulder injury, disease, or event. 4. A right shoulder disorder of impingement first manifested months after service separation. 5. The current right shoulder disorder did not have onset during service and is not otherwise related to active service. 6. The Veteran has arthritis in the right knee. 7. The Veteran did not sustain a right knee injury or disease during service. 8. Symptoms of right knee arthritis were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 9. The current right knee arthritis did not have onset during service and is not otherwise related to active duty service. 10. The Veteran does not have a current left hip disability. 11. The Veteran has glaucoma. 12. The current glaucoma did not have onset during service and is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.307, 3.309, 3.326. 3. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 4. The criteria for service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1979, June 1980 to July 1983, and August 2004 to November 2005. This matter is on appeal from a September 2015 rating decision issued by the Regional Office (RO) in Providence, Rhode Island. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). While the representative requests that the Board remand these issues for a compensation and pension examination (See October 2017 VA 646 Statement of Accredited Representative in Appealed Case), in this case, because the weight of the evidence is against finding any relevant injuries, diseases, or events in service that could serve as a basis for service connection for a right shoulder disorder, right knee disorder, left hip disorder, and glaucoma, there is no duty to provide a VA medical examination or nexus opinion. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As further discussed below, the Veteran has only generally contended that the four claims on appeal are related to service. Absent evidence at least suggestive of an in-service injury, disease, or event to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the claim for service connection for any of the Veteran’s claims without being speculative, and any such purported opinion would necessarily rely on an inaccurate history of in-service injury, disease, or event having occurred, so would be of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). For these reasons, the Board finds that VA’s duty to assist in obtaining additional evidence for these claims has not been triggered. See 38 U.S.C. § 5103A(a)(2) (VA “is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim”); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is “no reasonable possibility that further assistance would substantiate the claim”). For these reasons, the Board finds that a remand for VA medical opinions is not warranted. Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326. The duties to notify and assist have been met. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Arthritis is listed as a chronic disease under 38 C.F.R. § 3.303(b), and the presumptive service connection provisions are applicable to arthritis claims. The Veteran also claims that he has chronic pain in the right knee and left hip, but these claims are not listed as chronic diseases under 38 C.F.R. § 3.303(b), and the presumptive service connection provisions are not applicable to these claims. 1. Service Connection for a Right Shoulder Disorder The Veteran contends that the right shoulder disorder did not exist prior to entering service. The Veteran contends generally that the physical training exercises and the body armor worn in service caused the claimed right shoulder disorder. See March 2016 Notice of Disagreement. The Board finds that the Veteran has a current right shoulder disability. The evidence shows a post-service impingement, with later dislocation, status post surgery, with some scarring residuals. The evidence does not show arthritis in the right shoulder. Based on the lack of an arthritis diagnosis, the chronic disease presumptions do not apply. While the Veteran is competent to provide lay evidence about symptoms associated with the right shoulder disorder, under the facts of this case that include no in-service right shoulder injury or symptoms, no continuous right shoulder symptoms, and post-service onset of right shoulder symptoms, the etiology of such is outside the realm of common knowledge of a lay person, and he is not competent to diagnose arthritis or to relate the current disorder to service. Arthritis is too medically complex for a layperson to render diagnosis as it is not diagnosable on symptoms alone and requires an x-ray to make a diagnosis. See 38 C.F.R. § 4.71a. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is "medically complex" for lay diagnosis); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms). After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that there was no in-service injury, disease, or event in service. There is no complaint of or treatment for the right shoulder in the service treatment records. A right shoulder disorder, including impingement, dislocation, and arthritis, is a condition that would have ordinarily been recorded during service; therefore, the complete service treatment records, which were generated contemporaneous to service, are likely to accurately reflect the Veteran’s physical condition, are of significant probative value. See Kahana at 437; Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). The Veteran was examined several times during service for the purposes of serving in the military, and had several opportunities to present the medical history. The Veteran did not report any complaints associated with the right shoulder, specifically denied joint pain, and all the examinations found that the right shoulder was in normal condition. See March 1976 Service Enlistment Examination (for the first term of service), March 1979 Service Separation Examination (for the first term of service), May 1980 Service Enlistment Examination (for the second term of service), June 1983 Waiver of Service Separation Exam (for the second term of service), October 1999 Service Enlistment Examination (for the National Guard), September 2004 Pre-deployment Assessment, September 2005 Post-Deployment Assessment, and October 2005 Report of Medical Assessment (Veteran reported that he did not suffer from any injury or illness while on active duty service for which he did not seek medical care). The service treatment records, which are complete, show no indication of a right shoulder injury, disease, event, or even symptoms. Service treatment records show complaints and treatment for right knee injury and pain for which he was placed on a limited duty profile, hypertension, and high cholesterol. A right shoulder disorder is something that the Veteran similarly would have reported or sought treatment for during service had it occurred. Post-service treatment records indicate that the Veteran has a right shoulder disorder, which was sustained after service. January 2006 VA treatment records indicate that the Veteran’s reported pain in the right shoulder was consistent with impingement. The January 2006 VA treatment records are the first medical evidence of record, reported several months after service discharge, that documented symptoms of the right shoulder disorder. The Veteran continued to report right shoulder pain in February 2006, but not in March 2006. See March 2006 Functional Capacity Certificate (Veteran affirmative reported that he did not have any physical limitations that would affect his ability to serve), March 2006 VA report of Medical History (the Veteran reported that he did not have symptoms associated with the right shoulder), March 2006 VA Medical Examination. In May 2006, the Veteran reported right shoulder pain in the right shoulder joint and that there was no history of injury or trauma. See May 2006 VA Treatment Records. The VA examiner opined that the pain was due to hyperextension. In July 2006, the Veteran sought VA treatment for pain in the right shoulder, which was diagnosed as impingement. The Veteran presented a history of shoulder discomfort wearing a shoulder pack and weight lifting in service, but denied that there was a specific traumatic event. See July 2006 VA Treatment Records. This further supports the finding that there was no in-service injury to the right shoulder. In September 2006, a VA examiner assessed the right shoulder, noted that there might be a rotator cuff tear, and instructed the Veteran to bring a copy of the x-ray to the next appointment. There is no indication that the Veteran provided the x-ray. According to a December 2006 VA treatment records, the Veteran received surgery and was healing well. As the weight of the evidence shows no right shoulder in-service injury or disease, but rather shows post-service onset of symptoms, a preponderance of the evidence is against the claim for service connection for the right shoulder disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service Connection for a Right Knee Disorder The Veteran contends that he has right knee arthritis and that it did not exist prior to entering service. The Veteran claims that the physical training exercises and the body armor worn in service caused the claimed right knee disorder. See March 2016 Notice of Disagreement. After reviewing all the evidence, the Board finds that the weight of lay and medical evidence of record is at least in equipoise on the question of whether the Veteran has a current disability of right knee arthritis. While there is some indication of a current diagnosis of arthritis recorded as medical history in VA treatment records, it is unclear whether this is simply a medical history, and the treatment records do not demonstrate that the diagnosis was based on or confirmed by x-ray findings. Resolving reasonable doubt on this question, the Board finds that the Veteran has right knee arthritis, and will apply the chronic disease presumptions. The weight of the lay and medical evidence shows no in-service right knee injury or disease, or chronic symptoms of arthritis in the right knee in service. The Veteran was examined several times during service and did not report any subsequent complaints associated with the right knee, and subsequent examinations showed a normal right knee. See March 1976 Service Enlistment Examination (for the first term of service), March 1979 Service Separation Examination (for the first term of service), May 1980 Service Enlistment Examination (for the second term of service), June 1983 Waiver of Service Separation Exam (for the second term of service), October 1999 Service Enlistment Examination (for the National Guard), September 2004 Pre-deployment Assessment, September 2005 Post-Deployment Assessment, and October 2005 Report of Medical Assessment. There is no indication of symptoms, a diagnosis, or an event in service. The weight of the lay and medical evidence shows no continuous post-service symptoms of arthritis in the right knee following service separation, or arthritis manifesting to a degree of 10 percent within one year of service. According to post-service treatment records, the Veteran either reported no right knee symptoms immediately after discharge from service or denied such symptoms. See March 2006 Functional Capacity Certificate (the Veteran affirmatively reported that he did not have any physical limitations that would affect his ability to serve), March 2006 VA report of Medical History (the Veteran reported that he did not have symptoms of arthritis or knee trouble), March 2006 VA Medical Examination (lower extremities were in normal condition). The first report of symptoms of right knee arthritis of record was in December 2010, more than five years after service separation and five years before the instant claim was filed. The diagnosis was arthritis in the right knee. See December 210 VA Treatment Records. The record does not contain any x-rays associated with the diagnosis or even treatment records assessing the arthritis itself. The next medical report of right knee symptoms was in February 2012. These are the only two reports in medical evidence associated with right knee complaints and treatment. In these reports, the Veteran does not report any cause, injury, or event that related the knee arthritis to service. While these reports show the Veteran was placed on limited duty profile, there is no contention or showing that a right knee injury occurred during service, including Reserve service. The weight of the evidence is against a finding of nexus between the right knee arthritis and service. While the Veteran is competent to report his symptoms, he does not proffer any specific explanation of how the current right knee arthritis may be connected to service. The Veteran does not describe a specific in-service event or point to a relevant timeframe for service connection. Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). Based on the foregoing, the Veteran’s claim for service connection for arthritis in the right knee, under all theories of service connection, must be denied. 3. Service Connection for a Left Hip Disorder The Veteran contends that he now has a left hip disorder, that the left hip disorder did not exist prior to entering service, and that the physical training exercises and the body armor worn in service caused the claimed left hip disorder. See March 2016 Notice of Disagreement. After a review of all the evidence, lay and medical, the weight of the evidence shows no in-service left hip injury, disease, or event. According to service treatment records, the Veteran did not experience any left hip symptoms in service, and all the examinations found that the left hip was in normal condition. See March 1976 Service Enlistment Examination (for the first term of service), March 1979 Service Separation Examination (for the first term of service), May 1980 Service Enlistment Examination (for the second term of service), June 1983 Waiver of Service Separation Exam (for the second term of service), October 1999 Service Enlistment Examination (for the National Guard), September 2004 Pre-deployment Assessment, September 2005 Post-Deployment Assessment, and October 2005 Report of Medical Assessment (Veteran reported that he did not suffer from any injury or illness while on active duty service for which he did not seek medical care). Moreover, there are no post-service treatment records that contain complaints or treatment associated with the left hip. The weight of the evidence demonstrates that the Veteran does not have a left hip disability. There is no currently diagnosed left hip disability, and the reported left hip pain has not resulted in functional impairment. Treatment records relevant to the claim show subjective complaints in lay evidence of pain in the left hip, but show no impairment of normal functioning or reduction in earning capacity due to left hip pain. The medical and lay evidence does not show that the left hip pain amounts to functional impairment. The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Allen v. Brown, 7 Vet. App. 439 (1995). The term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018) (holding that, to establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity). For these reasons, service connection for a left hip disorder must be denied. 4. Service Connection for Glaucoma The Veteran generally contends that the glaucoma did not exist prior to his years of service and that service caused his current glaucoma. See March 2016 Notice of Disagreement. The Board finds that the Veteran has a current disability of glaucoma; however, the current glaucoma did not have onset during service and is not otherwise related to active duty service. The weight of the evidence shows no in-service injury, disease, or event or a nexus between the current glaucoma and service. There are no complaints of or treatment for symptoms of glaucoma in the medical evidence associated with the record in service and all in-service examinations noted no abnormalities or significant vision loss in either eye. See March 1976 Service Enlistment Examination (for the first term of service), March 1979 Service Separation Examination (for the first term of service), May 1980 Service Enlistment Examination (for the second term of service), June 1983 Waiver of Service Separation Exam (for the second term of service), October 1999 Service Enlistment Examination (for the National Guard), September 2004 Pre-deployment Assessment, September 2005 Post-Deployment Assessment, April 2005 Service Treatment Record (military examiner noted no current problems in either eye), and October 2005 Report of Medical Assessment (Veteran reported that he did not suffer from any injury or illness while on active duty service for which he did not seek medical care). Post-service treatment records indicate that the Veteran was being treated by a private examiner for glaucoma. The first medical report of record associated with glaucoma is a June 2008 VA treatment record, almost three years after separation from service. While the Veteran is competent to report symptoms associated with his vision and glaucoma, he is not competent to provide a nexus between the current diagnosis and service, especially in this case because there is no in-service injury, disease, or event to which a current eye disorder could be related. See generally Moray v. Brown, 5 Vet. App. 211 (1993) (regarding causation of retinitis pigmentosa, veteran’s testimony of aggravation of pre-existing disability in service was not competent evidence of aggravation, which was medical in nature). The etiology and risk factors associated with the glaucoma are too medically complex for a layperson to render a nexus opinion alone and it requires specialized testing administered by a medical professional. For these reasons, service connection for glaucoma must be denied. J. Parker Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel