Citation Nr: 18115683 Decision Date: 07/03/18 Archive Date: 07/02/18 DOCKET NO. 10-16 471 DATE: July 3, 2018 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for a left shoulder disorder as secondary to service-connected degenerative joint disease (DJD) of the right knee is denied. Entitlement to service connection for a left hip disorder as secondary to service-connected DJD of the right knee is denied. Entitlement to service connection for a left knee disorder as secondary to service-connected DJD of the right knee is denied. FINDINGS OF FACT 1. Although sinusitis was not noted on entry into active duty service, clear and unmistakable evidence demonstrates that it pre-existed service, but it is not clear and unmistakable that the pre-existing sinusitis did not worsen in severity during service. 2. After affording the Veteran the benefit of the doubt, his current sinusitis is related to his active duty service. 3. The Veteran’s left shoulder disorder did not manifest in service or within one year of separation from active duty service, and it is not caused or aggravated by his service-connected DJD of the right knee. 4. The Veteran’s left hip disorder did not manifest in service or within one year of separation from active duty service, and it is not caused or aggravated by his service-connected DJD of the right knee. 5. The Veteran does not currently have a left knee disorder, and has not had such a disability at any point since filing his claim for service connection. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 2. The criteria for entitlement to service connection for a left shoulder disorder as secondary to service-connected DJD of the right knee have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for entitlement to service connection for a left hip disorder as secondary to service-connected DJD of the right knee have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a left knee disorder as secondary to service-connected DJD of the right knee have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1980 to August 1992. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference in April 2018. A transcript of the hearing is included in the claims file. VA’s duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded VA examinations in November 2017. While the Veteran’s representative has asserted on several occasions, including during the April 2018 Board hearing that the VA examinations for the left shoulder, left knee, and left hip disorders are inadequate because the examiner’s field of medical specialty was in obstetrician-gynecology, the Board, in reviewing the examination reports more closely, determines that these examination reports and medical opinions, when read as a whole, contain clear explanations in support of the VA examiner’s opinions and findings following a thorough review of the pertinent records, lay statements, and medical principles. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion”); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by a veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error.) These VA examinations and medical opinions are adequate to decide the Veteran’s left shoulder, left knee, and left hip disorders claims. Service Connection, Generally The Veteran asserts that his current sinusitis disability was aggravated beyond the natural progression of this disease by his active duty service. He also contends that his left shoulder, left hip, and left knee disorders were caused or aggravated by his service-connected right knee disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111. To rebut this presumption of soundness, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. A “lasting worsening of the condition” is one that existed not only at the time of separation, but that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). Furthermore, evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, if the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). Arthritis is a chronic disorder listed under 38 C.F.R. § 3.309; thus, 38 C.F.R. § 3.303(b) is applicable for the left shoulder and left hip claims. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1043. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. 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). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Sinusitis The Veteran contends that his current sinusitis disability was aggravated by his active duty service. Specifically, in numerous statements throughout the appeal, including in the April 2018 Board hearing, the Veteran and his representative contended that the Veteran has had sinusitis since 1967 and that he had frequent episodes of sinusitis during active duty service, which have continued since that time. Regarding the first element of service connection, evidence of a current disability, the November 2017 VA examiner determined that the Veteran did not have a chronic sinusitis disability because he reported that he had less than four episodes of sinusitis per year. However, the Board determines that the Veteran has a current sinusitis disability, as he has been noted to have symptoms of sinusitis and was diagnosed with this disability on many occasions during the appeal, including in March 2011 and December 2015 VA treatment records. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also 38 C.F.R. § 4.97, Diagnostic Code (DC) 6511 (2017) (noting that a noncompensable disability rating can be assigned for evidence of sinusitis that is detected by X-ray only). Thus, the first element of service connection is met. Regarding the second element of service connection, an in-service disease or injury, although the Veteran stated that he previously had sinusitis in his June 1979 service pre-induction report of medical history, the evaluator did not “note” the presence of any sinusitis disability in the report of medical examination and the evaluator indicated that the Veteran’s sinuses were normal. Therefore, the presumption of soundness attaches and VA must show by clear and unmistakable evidence both that the disease existed prior to service and that the disease was not aggravated by service to rebut the presumption of soundness. The Board finds that although sinusitis was not “noted” on entry into active duty service, clear and unmistakable evidence demonstrates that it pre-existed service. Specifically, the evaluator noted that the Veteran had sinusitis since 1967 to the present in the June 1992 service separation evaluation, and that he had one to two episodes of sinusitis per year during active duty service, which he treated with decongestants and antibiotics. Additionally, since separation from service, the Veteran has asserted on numerous occasions that this disability began prior to his active duty service. For example, he told the November 2017 VA examiner that his current sinusitis began in the late 1960s. He also testified during the April 2018 Board hearing that his multiple annual episodes of sinusitis started in 1967. The Veteran’s numerous statements to medical professionals and during the April 2018 Board hearing regarding the onset and manifestation of his sinusitis, as well as the June 1979 pre-induction report of medical history and June 1992 service separation evaluation that corroborate the Veteran’s statements, constitute clear and unmistakable evidence that this disability pre-existed his active duty service. See Doran v. Brown, 6 Vet. App. 283 (1994). However, the Board finds that the evidence does not clearly and unmistakably show that the Veteran’s pre-existing sinusitis was not worsened in severity during service. Specifically, his service treatment records show that he was treated for symptoms of sinus and nasal congestion, pressure headaches, prurient discharge, nasal drainage, and/or sinusitis in February 1980, July 1980, January 1981, June 1981, May 1982, September 1985, February 1986, February 1987, March 1987, February 1988, June 1988, December 1988, October 1989, February 1990, July 1991, and June 1992. Since service separation, the Veteran has endorsed multiple episodes of sinusitis per year since an October 1992 statement. In fact, he testified during the April 2018 Board hearing that he had more frequent episodes of sinusitis during his active duty service than is recorded in his service treatment records because he only attended sick call in instances when his sinusitis was exceptionally severe, to include sinus infections. The abovementioned evidence, including the Veteran’s service treatment records, his consistent contentions since October 1992, and his credible April 2018 Board hearing testimony, prevents a finding that there is clear and unmistakable evidence that the sinusitis disability was not aggravated during active duty service; therefore, the presumption of soundness at service entrance is not rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. After a review of all the evidence of record, both lay and medical, and after affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current sinusitis is related to his active duty service. As noted above, the Veteran has been diagnosed with and treated for sinusitis symptoms on many occasions during service, including in February 1980, July 1980, January 1981, June 1981, May 1982, September 1985, February 1986, February 1987, March 1987, February 1988, June 1988, December 1988, October 1989, February 1990, July 1991, and June 1992. He has consistently and credibly indicated since October 1992 that his sinusitis symptoms were related to his active duty service. The Board’s finding is buttressed by the fact that the claims file does not contain a medical opinion indicating that the Veteran’s current sinusitis is not related to his active duty service. Thus, the third element of service connection, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, is met. Accordingly, after affording the Veteran the benefit of the doubt, the evidence is in equipoise in showing that his current sinusitis is related to his active duty service, and the claim must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Left Shoulder and Left Hip Disorders The Veteran contends that his left shoulder and left hip disorders are caused or aggravated by his service-connected right knee disability. Because the evidence pertaining to these disorders is located in the same or similar documents, the Board shall analyze them together. The Veteran has current left shoulder and left hip disorders. Specifically, the November 2017 VA examination reports show that the Veteran has carried diagnoses of degenerative arthritis in the left shoulder since November 2008 and osteoarthritis of the left hip since February 2008. Accordingly, the first element of service connection is met. Initially, the Board concludes that, while the Veteran has current diagnoses of left shoulder and left hip disorders, the preponderance of the evidence is against findings that these disabilities began during active duty service or within one year of separation from active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. Particularly, a review of the Veteran’s service treatment and personnel records does not show that he complained of or was treated for any left shoulder or left hip disorder. Specifically, his June 1979 service pre-induction reports of medical examination and history do not show any complaints of or treatment for these disorders. Similarly, such evaluations from October 1983 and November 1988, as well as the Veteran’s June 1992 separation reports of medical examination and history, do not show any complaints, diagnoses, or treatment for abnormal left shoulder or left hip symptoms. The record does not show any complaints of or treatment for these disorders until a February 2008 VA progress note showing the Veteran’s complaint of left hip pain and a December 2008 VA physical therapy consultation note showing the Veteran’s complaints of left shoulder pain since July 2008. This evidence, as well as the overall record, shows that these disorders did not manifest in service or within one year of separation from service. Rather, the VA treatment records indicate that these disorders began in 2008, or approximately more than 20 years after the Veteran separated from active duty service. The Veteran also does not contend that his current left shoulder degenerative arthritis and left hip osteoarthritis manifested in service or within one year of separation from active duty service. Rather, in his April 2018 Board hearing testimony and additional statements throughout the appeal, he asserted that his current left shoulder and left hip disorders were caused by his service-connected right knee disability. In this regard, the claims file contains the lay opinions of the Veteran and his representative contending that the left shoulder and left hip disorders were caused by his service-connected DJD of the right knee, and medical opinions from an April 2011 private doctor and the November 2017 VA examiner discussing the causal connection between the current left shoulder and left hip disorders and the right knee disability. The Board acknowledges the Veteran’s contentions that his service-connected right knee disability caused his left shoulder and left hip disorders. The Veteran is competent to report symptoms that he perceived through his own senses. However, he is not competent to offer an opinion as to the cause of his current left shoulder and left hip disorders due to the medical complexity of the matters involved. Degenerative arthritis and osteoarthritis require specialized training for a determination as to diagnosis, causation, and progression, and are therefore not susceptible to lay opinions on causation or aggravation. Thus, the Veteran is not competent to render opinions or attempt to present lay assertions to establish the cause of his current left shoulder and left hip disorders. The claims file also contains the opinions of the April 2011 private doctor and the November 2017 VA examiner, which are competent on the issue of causation of medically complicated matters. In an April 2011 letter, a private doctor noted that the Veteran was concerned that his left hip pain may be due to the fact that he was required to use his left leg in preference to his right leg because his right leg has a service-connected disability in the right knee, which was painful. The private doctor further noted that right knee pain caused the Veteran to shift his weight to the left side and caused more wear and tear to the left side. The private doctor stated that there was more than 50 percent chance that the shift in weight to the left side was causing some problems with the Veteran’s left hip, which indicated progressive DJD changes. The Board has considered this doctor’s statements that the Veteran’s right knee disability caused him some problems in his left hip. However, the probative value of this doctor’s opinions is diminished by the fact that he was unable to review the Veteran’s claims file or any pertinent service department or VA treatment records prior to forming his opinions. His April 2011 letter indicates that his findings and opinions are based solely on the Veteran’s statements. See Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) (the presumption of credibility is not found to arise or apply to a statement of a physician based upon an inaccurate factual premise or history as related by a veteran). Of more probative value are the opinions of the November 2017 VA examiner, who indicated that she reviewed the Veteran’s pertinent records, conducted an in-person examination of the shoulders and hips, and noted the Veteran’s self-reported history and symptoms. The examiner opined that the Veteran’s left shoulder and left hip disorders were less likely than not (less than 50 percent probability) caused by, proximately due to, or the result of the Veteran’s DJD of the right knee. The examiner explained that the Veteran’s right knee did not cause the Veteran to have any significant physical deformity, ankylosis of the major joints (i.e., ankle, knees, or hips), septic arthritis, neurological impairment, or severe gait dysfunction, and, thus, the right knee disability was not a causative factor of the left shoulder and left hip disorders. The examiner further explained that current medical literature does not recognize DJD of the right knee, or other disorders of the knee, as causative factors in the development of left shoulder and left hip disorders. The examiner further determined it is less likely than not (less than 50 percent probability) that the Veteran’s left shoulder and left hip disorders were aggravated beyond their natural progression by his DJD of the right knee. She explained that current medical literature does not recognize osteoarthritis, or other disorders of the knee, as causative factors in developing or aggravating age-related degenerative changes of the left shoulder and left hip unless any significant physical deformity, ankylosis of the major joints, septic arthritis, neurological impairment, or severe gait dysfunction existed in the right knee. The examiner’s opinions are highly probative evidence regarding the cause of the left shoulder and left hip disorders because of the examiner’s expertise, training, education, proper support and explanations, and thorough review of the Veteran’s records and self-reported symptoms. Thus, the Board finds that the Veteran’s left shoulder and left hip disorders were not caused or aggravated by his service-connected DJD of the right knee. Accordingly, as the preponderance of the evidence is against findings that the Veteran’s left shoulder and left hip disorders began during active duty service or within one year of separation from active duty service, or were caused or aggravated by his service-connected DJD of the right knee, the benefit of the doubt doctrine does not apply, and the Veteran’s claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 3. Left Knee Disorder The Veteran contends that he has a current left knee disorder that is caused or aggravated by his service-connected DJD of the right knee. The Veteran filed a claim for service connection for a left knee disorder in January 2009. In a March 2010 substantive appeal (VA Form 9), the Veteran asserted that he had left hip, left shoulder, and left knee problems due to his service-connected right knee disability. He made similar assertions in a June 2013 statement. Likewise, during the April 2018 Board hearing, he testified that due to his left hip and knees, he cannot turn around or spin like a normal person. Contrary to the Veteran’s statements, the medical evidence since he filed the present claim for service connection does not show that he has any left knee disability for VA compensation purposes. Specifically, an April 2009 VA examination of the knees showed that while the Veteran had current symptoms in his right knee, his left knee was not symptomatic, including any abnormal limitation of motion, signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, guarding of movement, “locking” pain, genu recurvatum, or crepitus. A July 2016 VA X-ray showed that the Veteran’s left knee was within normal limits. A review of the Veteran’s many VA treatment records since 2006 does not indicate that he was ever diagnosed with a left knee disorder. Most recently, the November 2017 VA examiner noted the Veteran’s complaints that he had left knee pain if he lays or turns the wrong way or if something heavy is placed on his knee. However, after performing a physical examination, which did not show any initial or after repetitive-use limitation of motion, ankylosis, muscle weakness or atrophy, recurrent subluxation, lateral instability, or recurrent effusion, the examiner concluded that there was no objective evidence of a left knee disability. Given this evidence, the Board finds that the Veteran does not currently have a left knee disorder, and has not had such a disability at any point since filing his claim for service connection. The only evidence indicating the presence of this disability during the appeal period comes from the Veteran’s lay statements that he has pain in his left knee and that he cannot turn or spin due to his bilateral knee and left hip disorders. Additionally, the November 2017 VA examiner also noted the Veteran’s complaints of pain in the left knee if he turned the wrong way. As noted above, the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge, including pain. However, while the examiner acknowledged the Veteran’s subjective complaints of pain, this examination, as well as the April 2009 VA examination and July 2016 VA X-ray, showed that the Veteran’s left knee pain has not resulted in functional impairment or limitation of the left knee. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). Thus, where there is no disability, there can be no entitlement to compensation. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the evidence does not show a current disability at any time during the claim period, there is no separate and underlying left knee disorder that can be related to service or the service-connected DJD of the right knee. See McClain, 21 Vet. App. at 319; see also Romanowski v. Shinseki, 26 Vet. App. 289 (2013). The preponderance of the evidence is against the Veteran’s claim and the benefit-of-the-doubt rule does not apply. Absent a current disability, the claim of entitlement to service connection for a left knee disorder as secondary to service-connected DJD of the right knee must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel