Citation Nr: 1807755 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-44 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to an initial rating in excess of 20 percent for right shoulder impingement with rotator cuff tear. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1991 to February 1993 and April 2004 to November 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2014, the Board remanded the case for additional development, which has been completed. During the pendency of the appeal, the RO granted an initial rating of 20 percent for the Veteran's service-connected right shoulder impingement with rotator cuff tear. Nevertheless, the increased rating matter remains in appellate status, as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The matters have since been returned to the Board for appellate review. In April 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. The issue of entitlement to an increased rating in excess of 20 percent for right shoulder impingement with rotator cuff tear is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's back disability manifested in service and is attributable to service. 2. The Veteran's bilateral knee disability did not manifest in service and is not attributable to service; degenerative arthritis of the bilateral knee did not manifest to a compensable degree within one year of discharge from service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. If chronicity during service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the evidence of record supports a grant of service connection for a back disability. However, the Board finds that service connection is not warranted for a bilateral knee disability. Back Disability As an initial matter, the Veteran has a current disability and was diagnosed with chronic lumbar strain in 2010. The Veteran testified that he hurt his back changing out and lifting 550-lb tires over a two and a half day period during service. He stated that his back had been hurting since he separated from his second tour of service in November 2005. The Board notes that the Veteran is competent to report events that are consistent with his service and the Board has no reason to question the credibility of her statements in this regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Board finds that the evidence is at least in equipoise as to whether the Veteran's back disability is related to service. Although there is evidence against the claim, the Veteran's private physician (Dr. J. D.) opined that the Veteran's back condition was the result of changing out 56 sets of tires. In support of this opinion, Dr. J. D. reviewed the Veteran's current medical condition and in-service history, and relied on his own medical expertise, knowledge, and training. Thus, the Board finds that, in addition to the evidence discussed above, the benefit-of-the-doubt rule applies and service connection for a back disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f ... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). Bilateral Knee Disability The Veteran was diagnosed with degenerative arthritis in both knees in 2012. The Veteran testified that his bilateral knee disability was due to PT runs during his first and second tours of service. He stated that his knees have been hurting since he separated from his second tour of service in November 2005. See Layno supra; Buchanan, supra. Additionally, service treatment records document that the Veteran was instructed to continue daily medication for the knee. In December 2009, Dr. J. D. noted that the Veteran was not certain whether his bilateral knee disability was connected to his military service or to the amount of off-road driving he did when employed as a miner. Pursuant to the Board's April 2014 remand, the Veteran was afforded a VA examination in June 2017. The examiner noted that although the Veteran was instructed to continue daily medicine for knee during service, the Veteran's knee disability was acute and self-limited. He opined that the Veteran's bilateral knee degenerative joint disease was more likely from his heavy-duty post-service occupation as a coal truck driver and as a part of generalized degeneration due to age. As indicated, there is no competent evidence of record otherwise linking the Veteran's bilateral knee disability to his active service. Additionally, there is no indication that arthritis occurred in service or manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Instead, the only medical opinion on the matter weighs against the Veteran's claim and there is no contrary medical opinion of record. The Board finds the June 2017 VA examiner's opinion significantly probative here, as the examiner reviewed the evidence of record, including the Veteran's lay statements, and relied on his own training, knowledge, and expertise as a medical professional in rendering his opinion. The Board acknowledges the lay statements and assertions of record, including the sincere belief that the Veteran's bilateral knee disability is related to in-service PT runs. However, the Veteran is not competent to provide an opinion as to whether his bilateral knee disability is related to service, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board finds that the Veteran's lack of a report of bilateral knee problems prior to 2010, in conjunction with the June 2017 VA examiner's opinion, weighs against a finding of continuity of symptomatology since service. But see Walker, 708 F.3d at 1336 (holding that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b)). Accordingly, and with consideration of the doctrine of reasonable doubt, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a bilateral knee disability. See 38 U.S.C. § 5107 (a)("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ORDER Entitlement to service connection for chronic lumbar strain is granted. Entitlement to service connection for bilateral arthritis of the knees is denied. REMAND The Board finds that a remand is required for another VA examination. The Board notes that the Veteran was afforded a VA examination in June 2017. However, there are insufficient findings in the examination report needed to properly evaluate the Veteran's service-connected right shoulder impingement with rotator cuff tear. The Court recently held that in order to be considered adequate, a VA medical examination must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA examiner did not test the Veteran's right shoulder impingement with rotator cuff tear for pain on both active and passive motion in both weight bearing and non-weight bearing positions and, if possible, with the range of the opposite undamaged joint. Therefore, the Board finds the prior VA examination inadequate for compensation purposes. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder impingement with rotator cuff tear. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, prior VA examination reports, and lay statements and assertions. All pertinent symptomatology and findings must be reported in detail. The examiner should specifically delineate all signs and symptoms associated with the Veteran's service-connected right shoulder impingement with rotator cuff tear. In particular, the examiner should test the Veteran's range of motion in active motion, passive motion, weight bearing, and non-weight bearing and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner must also comment on any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A clear and complete rationale for any opinions or conclusions expressed must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs