Citation Nr: 1807975 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-11 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left shoulder condition. 2. Entitlement to service connection for right shoulder condition. 3. Entitlement to service connection for left elbow condition. 4. Entitlement to an initial rating in excess of 10 percent for low back disability. 5. Entitlement to an initial rating in excess of 10 percent for right hip disability. 6. Entitlement to an initial rating in excess of 10 percent for left hip disability. 7. Entitlement to an initial rating in excess of 10 percent for right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from September 1986 to August 1990 and from September 2001 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of March 2008 and October 2008 issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. Regarding the issues of entitlement to service connection for foot condition and service connection for left knee condition, the Board observes that by rating action of October 2016, the RO granted service connection for bilateral pes planus and left shin splints (claimed as left knee) with corresponding evaluations. The Board finds the RO's decision for both issues constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the issues are no longer in appellate status. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The issues of entitlement to increased rating for back disability; increased rating for left and right hip conditions; increased rating for right hip bursitis; and increased rating for right knee disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A chronic left shoulder condition was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed osteoarthritis of the right shoulder is etiologically related to service. 2. A chronic right shoulder condition was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed osteoarthritis of the right shoulder is etiologically related to service. 3. A chronic left elbow condition was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed osteoarthritis of the left elbow is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for left elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with 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 the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection The Veteran seeks service connection for left shoulder, right shoulder, and left elbow conditions which he contends had onset in service or otherwise etiologically related to his active duty service. He filed his service connection claims in February 2008, which was denied by an October 2008 rating decision. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (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, 1167 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Turning to the evidence of record, the Veteran's service treatment records do not show any complaints, treatment, findings or diagnosis of any shoulder condition or left elbow condition. A September 2001 enlistment examination for the Air Force reflects normal clinical findings for upper extremities. He was deemed qualified and fit for active duty. See Report of Medical Examination of September 2001. The Veteran also denied having any shoulder problems or elbow issues in the corresponding medical reports on re-enlistment. A February 2002 orthopedic consultation report reflects findings for arthritis of both hips and torn meniscus of the right knee. But there was nothing noted by the examining orthopedic surgeon regarding the Veteran's shoulders or left elbow and no reports documented as to complaints made by the Veteran. A January 2002 line of duty determination report reflects the Veteran's report of an injury during the "452 AMW Rodeo in May of 2000" where he "knocked his hip out of socket" during his participation. There were no reports made by the Veteran of injuries to the shoulder or left elbow. A January 2003 report of investigation reflects findings that the Veteran's right knee and hip conditions pre-existed service and were not incurred in the line of duty. There were no findings regarding the shoulders or left elbow. See Line of Duty Determination of January 2003, Memorandums dated February 2003 and March 2003 on final line of duty determinations. Medical records after separation from service further fail to show persistent or recurrent symptoms regarding the shoulders or left elbow. In fact, private treatment records reflect that the Veteran sought continuous treatment for his hips, right knee conditions, and developed chronic low back and foot condition associated with his hips. See Statements from Dr. Fox dated September 2007 and Dr. Miller dated December 2007. Notably, an October 2009 statement from the Veteran's treating chiropractor describes a June 1999 on the job injury where the Veteran reported falling and sustaining injuries to his lower back, right knee, left elbow and both hips. The chiropractor explained that a physical examination was performed in September 2009 reflecting findings that the Veteran's "bilateral shoulder range of motion are less than normal". See Statement from chiropractor M.G. dated October 2009. In May 2010, VA received a statement dated December 2008 from the Veteran's treating physician reflecting a list of conditions identified by physician based on the Veteran's reported history. Among the list included "left elbow due to injury from fall in the military 6mm bone chip removed due to the trauma from his accident on Active Duty." The physician stated that the Veteran's conditions identified in the letter stemmed from historical injuries and are chronic in nature. See Statement from Dr. Paley from Summit Family Medicine received May 2010. In January 2016, VA received a statement from the Veteran's treating physician reflecting findings that the Veteran suffers from "pain in both hips, knees, feet, and lower back." The physician indicated that the Veteran was under his care since September 2014 and that he reviewed records dating back until 2006. The physician further stated that the "degenerative arthritis in [the Veteran's] lower extremities and lumbar spine are related to military injuries." See Statement from Dr. Roka dated January 2016. The Veteran was afforded VA examinations in March 2012 for his shoulder and arm conditions. After a thorough review of the claims file, conducting diagnostic testing and physical examination, the examiner found that the Veteran's osteoarthritis of the shoulder was not incurred in or related active duty service. The examiner found "no history of documented continuing complaints or treatment to indicate a chronic disabling condition" and pointed out that the Veteran's records were in fact silent for a period of approximately 8 years to documented continued complaints or treatment. Further, the examiner noted one previous worker's compensation injury but that no details were provided or records made available to the VA. Citing X-ray findings of arthritis and impingement syndrome of the shoulders, the examiner commented that the condition was "compatible with the Veteran's age and senescence" and related to service. A similar opinion was provided by the March 2012 examiner for the Veteran's left elbow condition. Citing to a comprehensive review of the Veteran's claims file, the examiner found no history for diagnosis or treatment of an injury to the left elbow during service, and no evidence of continued complaint or treatment to establish a chronic disabling left elbow condition. The examiner concluded that the claimed condition was less likely incurred in or related to service. Upon review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for bilateral shoulder and left elbow condition. In so finding, the Board acknowledges that the Veteran's treatment records confirm current diagnoses of osteoarthritis of the shoulders and left elbow. See March 2012 VA examination reports. But, concludes that there is no competent medical evidence relating the current disorders to service. As the determinative issue involves the etiological connection between service and the current disability, competent medical evidence is required. In this regard, the Board finds the March 2012 VA medical opinion constitutes the most probative medical evidence of record. As demonstrated above, the VA examiner provided a well-grounded and thorough analysis of the case to support the conclusion that there is no reliable evidence linking the Veteran's osteoarthritis of the shoulders to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). A similar opinion was rendered for the Veteran's left elbow with supporting rationale. Notably, the examiner provides an exhaustive recitation of the pertinent medical evidence of record and sufficiently addresses the Veteran's contentions. Accordingly, the Board finds the VA medical opinion highly probative in determining whether the Veteran has substantiated a claim for service connection. Next, the Board finds the October 2009 statement from the Veteran's chiropractor carries significantly less probative value as the chiropractor fails to indicate whether he reviewed the Veteran's claims file and presents no supporting rationale for such statements. See Prejean v. West, 13 Vet. App. 444 (2000). For instance, his one sentence statement that the Veteran's "bilateral shoulder range of motion are less than normal" is provided with no supporting contemporaneous medical documentation or range of motion measurements. He also does not mention any findings regarding the Veteran's left elbow. Absent a thorough analysis of the case, the Board assigns significantly less probative value to the chiropractor's letter. Likewise, the December 2008 statement from the Veteran's treating physician is afforded less probative value as the physician fails to indicate what evidence was used in rendering his opinion or whether he reviewed the Veteran's claims file. His opinion that the Veteran's left elbow is due to a fall in the military has no factual basis. As established above, there is no record during the Veteran's period of active service of falling and injuring his shoulder or left elbow. Rather, his participation in a rodeo during service aggravated pre-existing conditions of the knee and hips. There are no findings associated with the shoulders or left elbow. Accordingly, the Board finds Dr. Paley's statement is based on inaccurate factual premise, and therefore assigns less weight to his opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, there is simply no medical evidence of an etiological relationship between the Veteran's current osteoarthritis of the shoulders and left elbow to service. The Board observes that the 2012 VA medical opinion stands uncontradicted by any other evidence found in the record and is probative in determining whether the Veteran has substantiated his claims for service connection. As to the Veteran's reports of having onset of symptoms of shoulder and left elbow conditions since service, the Board observes that the Veteran's subjective complaints are not supported by objective medical evidence, as there are no medical records documenting any ongoing treatment for shoulder or left elbow conditions. The evidence contemporaneous to the Veteran's service and in the years immediately following his service show no physical findings, complaints, or treatment for any shoulder condition or left elbow condition. In fact, as noted in the VA opinion, the earliest report of elbow pain was not until 2007, approximately five years after separation from service, with shoulder pain indicated in 2008, approximately six years after separation. Significantly, the Veteran did not complain of any shoulder problems or left elbow issues on clinical evaluation in February 2002 for his line of duty investigation. Therefore, the Board ascribes heightened credibility to the statements made at the time before his separation in 2002 which indicate that he had no shoulder or left elbow condition, and finds the Veteran's recent recollections made in connection with his pending claim for VA benefits less probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board has also considered whether the presumption of service connection has been established under 38 C.F.R. § 3.303(b). Although osteoarthritis may be considered a chronic disease for VA purposes, arthritis was not clinically shown to a compensable degree within one year following the Veteran's discharge from service. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that osteoarthritis of the shoulders or left elbow manifested to a compensable degree within one year following the Veteran's discharge from service. Id. As discussed in detail above, medical records following service do not reflect any problems related to arthritis or affecting his bones or joints. There is further no evidence indicating chronic disabling conditions. Accordingly, service connection for bilateral shoulder conditions or left elbow condition on a presumptive basis has not been shown and therefore, not warranted. 38 C.F.R. §§ 3.303(b), 3.307. Lastly, the Board acknowledges the Veteran's contentions that his bilateral shoulder and left elbow conditions are related to service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between a current disability and service or onset in service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Board finds the Veteran's statements are not competent medical evidence. Therefore, his assertions, standing alone, have little probative value and the Board assigns more weight to the medical opinion provided by the VA examiner. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection of bilateral shoulder condition and service connection for left elbow condition. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. See 38 U.S.C § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for left shoulder condition is denied. Service connection for right shoulder condition is denied. Service connection for left elbow condition is denied. REMAND Based on the Veteran's recent testimony presented at his hearing in November 2017, the Board finds that remand is necessary before adjudication of the Veteran's increased rating claims for low back, right and left hip, and right knee disability. Although he was afforded VA examinations in March 2016 for his claimed conditions, the Veteran maintains that his conditions have since worsened and that the current evaluations of record are not reflective of his present level of severity. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the Board observes that since the Veteran's recent examination, the Court issued a decision finding that VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald 8 Vet.App. 158 (2016); 38 C.F.R. §4.59 (2016). Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Critically, this type of joint testing was not accomplished during the Veteran's March 2016 examinations. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Accordingly, additional VA examinations are warranted here. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records not evidenced by the current record and associate with the claims file. 2. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his low back, right and left hip, and right knee disabilities. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. 3. After completing the above actions and any other development deemed necessary, the claims must be readjudicated. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs