Citation Nr: 18126338 Decision Date: 08/14/18 Archive Date: 08/14/18 DOCKET NO. 14-10 101 DATE: August 14, 2018 ORDER Entitlement to service connection for bilateral shoulder degenerative joint disease (DJD) and right shoulder rotator cuff tear is denied. The application to reopen the claim for service connection for left knee arthritis based is denied. The application to reopen the claim for service connection for lumbosacral spine status post laminectomy for herniated nucleus pulposus is denied. FINDINGS OF FACT 1. Bilateral shoulder DJD with right shoulder rotator cuff tear not manifest in service, or within one year of separation, and is not otherwise attributable to service. 2. Bilateral shoulder DJD with right shoulder rotator cuff tear is unrelated (causation or aggravation) to a service-connected disease or injury. 3. In a January 2007 rating decision, the RO denied service connection for left knee arthritis and lumbosacral spine status post laminectomy for herniated nucleus pulposus. 4. Evidence submitted since the January 2007 rating decision is not new or material and does not relate to an unestablished fact necessary to substantiate the claim of service connection for either left knee arthritis or lumbosacral spine status post laminectomy for herniated nucleus pulposus. CONCLUSIONS OF LAW 1. Bilateral shoulder DJD with rotator cuff tear was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Bilateral shoulder DJD with rotator cuff tear is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 C.F.R. § 3.310 (2017). 3. The January 2007 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. Evidence received since the January 2007 rating decision is not new and material and the claim for service connection for left knee arthritis is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. Evidence received since the January 2007 rating decision is not new and material and the claim for service connection for lumbosacral spine status post laminectomy for herniated nucleus pulposus is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to July 1975. The Veteran appeared at a Board hearing in May 2017; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (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. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a 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). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Bilateral shoulder DJD with right shoulder rotator cuff tear The Veteran submitted a claim for right and left shoulder disability secondary to the right knee condition, dated in November 2012 and received in December 2012. He stated in his May 2017 Board hearing that he repeatedly falls due to his service-connected right knee and resulting instability, caused him to fall and land on his shoulders. The issue for the Board is whether the Veteran current disability that is proximately due to or the result of, or was aggravated by service-connected disease or injury. The Board concludes it is not. The Veteran complained of shoulder pain for the first time in a May 2012 VA treatment note. An X-ray that same month indicated left shoulder degenerative joint disease. An additional VA treatment note in July 2012 reported the Veteran complained of right shoulder pain. X-rays dated in September 2012 noted findings suggestive of rotator cuff tear and degenerative joint disease. A September 2012 VA orthopedic surgery consultation note reported long-standing right shoulder pain and that the Veteran “feels that the development of his right shoulder pain may coincide with using a cane in his dominant right hand to help.” The Veteran had an October 2013 VA examination. The examiner, a doctor, reviewed the Veteran’s VA claims file and conducted an in-person examination. The examiner reported the Veteran had DJD of the bilateral shoulders and right shoulder rotator cuff tear. The examiner reported the Veteran’s history of “[b]oth shoulders have been hurting for about 5 years. I keep falling because of my knees and keep landing on my shoulders and banging them.” The examiner “specifically asked if [the Veteran] tried to brace the falls with his hands, he said ‘no,’ that he lands on the shoulders.” The examiner found that the Veteran’s bilateral should DJD with right shoulder rotator cuff tear was “less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition.” The VA examiner determined that the Veteran’s shoulder disability was not likely related to the Veteran’s knees. The examiner stated “[r]eview of the claims file and Veteran’s history provide no history of specific traumas that would provide a nexus for the development of degenerative joint disease with rotator cuff tears.” Moreover, the Veteran’s “account of how he falls due to his knee problem is not consistent with a physiologic response to falling and/or knee instability and does not provide a medical basis for the development of degenerative joint disease with rotator cuff tears.” The Board concludes that the preponderance of the evidence is against finding that the Veteran’s bilateral shoulder DJD with right shoulder rotator cuff rear is not proximately due to or the result of, or aggravated beyond its natural progression by service-connected disease or injury. 38 C.F.R. § 3.310(a). The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran states his multiple falls caused his shoulder disability. During the Board hearing, he stated he had falls about twice a month. The Veteran is competent to report that he does fall. However, the Veteran is not competent to report that his falling caused DJD or a rotator cuff tear. The Veteran is not competent himself to state what caused DJD. A causal relationship between occasional falls caused by the knee and bilateral DJD is not a factual matter of which a lay person can have firsthand knowledge. The Veteran has not stated upon what basis such a statement has been made. The Veteran does not have the education, training, or experience to state what caused the Veteran's bilateral shoulder DJD with right shoulder rotator cuff tear. The medical record does not show a connection between repeated falls and the Veteran’s shoulder DJD – in fact, there is no mention of falls in VA medical records until after DJD was diagnosed – and there is no probative evidence showing that DJD was caused by falls. The Board finds that the VA medical opinion outlined above to be more probative then the Veteran’s statements. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. He determined that the Veteran’s shoulder DJD bilaterally was not consistent with his description of falls. The examiner had knowledge of the Veteran’s medical history and examined the Veteran, and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, while the Board has considered the Veteran’s lay statements, they do not outweigh the probative medical opinion. The Board has considered other theories. There is no evidence that bilateral shoulder DJD with right rotator cuff tear was directly due to service. Arthritis was not manifested during service or within one year of separation. In addition, the Veteran did not have the characteristic manifestations sufficient to identify the disease entity. Rather, the Veteran denied the relevant issues on his separation report of medical history dated in July 1975, including a “no” response for painful or trick shoulder or elbow. The Veteran did not report broken bones, but the physician’s summary reports these were for areas other than the shoulders. On examination at separation in July 1975, the Veteran’s shoulders were evaluated as normal, with full strength and range of motion in the upper extremities. There is no acceptable evidence of record of shoulder DJD with rotator cuff tear during service or within one year of separation. There is no accepted that the remote onset of shoulder DJD with rotator cuff tear– first reported multiple decades after service – is otherwise related to service. Consequently, the Board gives more probative weight to the VA opinion. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that evidence received by VA since the last final disallowance of the Veteran’s claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). 2. LEFT KNEE ARTHRITIS ASSOCIATED WITH RIGHT KNEE INJURY The Veteran’s claim for service connection for left knee arthritis secondary to a service-connected right knee disability was denied in a rating decision dated in January 2007. The Veteran had previously filed claims for left knee arthritis or “left knee condition” denied in June 2003 and April 1995, as medical evidence showed the knee had been injured at work in 1993. At the time of the January 2007 rating decision, the relevant evidence of record included VA medical records from 2005 and 2006, the Veteran’s lay statements stating the left knee arthritis was caused by his right knee disability, and a February 2006 statement from Dr. W.O. Dr. W.O.’s February 2006 statement reported, in the pertinent part, the following: Seems to be some question as to whether the left knee is secondary to the right knee and I would say that the mechanisms that caused the right knee to go bad were certainly present in the left knee at the same time and therefore both would be primary problems rather than one being secondary to the other. Certainly[,] your history is consistent with this. The RO denied the claim, as none of the above was new and material, as it did not relate to an unestablished fact, and “there is still no evidence that left knee arthritis was incurred in or caused by service or within any applicable presumptive period.” Further, Dr. W.O.’s opinion, while considered new, was not considered material to the claim, as the opinion did not note the 1993 injury and “[w]hile the physician does note mechanism affecting both knees, he does not indicate that he was aware of your knee injuries outside of service.” Therefore, Dr. W.O.’s opinion was not new and material regarding secondary service connection. Additionally, Dr. W.O.’s opinion stated that the left knee was not secondary to the right knee. The RO denied reopening the claim based on new and material evidence. The Veteran was notified of this by letter that same month. The Veteran did not file a notice of disagreement for the denial of service connection and no new and material evidence was not received within the one-year appeal period. Thus, the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. In essence, the Veteran had shown a post-service disability, there was no causal relationship, i.e. nexus, between the disability and service or between a disability and a service-connected disease or injury. The Veteran submitted a new claim in March 2012. Both the July 2012 rating decision and February 2014 Statement of the Case (SOC) denied reopening the claim, as no new and material evidence had been received. Review of the evidence of record submitted since the last final rating decision includes VA treatment records and a July 2012 VA examination of the knees. These documents note continued treatment for the disability and the Veteran’s reports of his medical history, in which the Veteran linked his left knee to service. For example, the July 2012 VA examination notes “[t]he [V]eteran has a history of an injury to the left knee, also, especially worse since 1978. He says he has had torn cartilage at that time . . . . He contends this is a result of his right knee condition.” The Veteran also resubmitted the Dr. W.O.’s February 2006 statement, quoted above. There are new statements contained in medical records which report the Veteran’s history as given by the Veteran to the medical professional preparing the record. However, these are not medical opinions providing nexus, but simply a transcription of what the Veteran told the examiner. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). After review of the evidence submitted by the Veteran, the Board finds that the Veteran has not submitted new and material evidence showing a nexus between the right knee and his left knee disabilities or between the left knee disability and service. The added documents include medical records showing a current disability. That the Veteran had a disability has been established, such evidence is cumulative. Therefore, these records are not new and material. There are also additional statements from the Veteran, including those transcribed by medical professionals, to the effect that his right knee disability caused his left knee disability. These are not new and do not establish nexus. There is also the medical opinion from Dr. W. O. It has been submitted before and considered in the prior January 2007 rating decision, such evidence is duplicative. There is no other relevant documents or information to consider. Although the threshold to reopen is low, such a threshold is not met in this case and the benefit-of-the-doubt doctrine is not for application. See Shade, 24 Vet. App. at 118. The application to reopen the claim is denied in the absence of new and material evidence. 3. DEGENERATIVE DISC DISEASE / DEGENERATIVE JOINT DISEASE, LUMBOSACRAL SPINE As with the left knee, the Veteran’s claim for service connection for a lumbosacral spine disability was denied in a rating decision dated in January 2007. At the time of the January 2007 rating decision, the relevant evidence of record for the claim for a lumbosacral spine disability included VA medical records from 2005 and 2006 and the Veteran’s lay statements stating the back disability was caused by his right knee disability. The RO denied the claim as none of the above was new and material, as these documents did not relate to an unestablished fact, and the Veteran had submitted “no medical evidence . . . to support your claim.” The Veteran did not file a notice of disagreement and no new and material evidence was received within the one-year appeal period. Thus, the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. In essence, the Veteran had shown a post-service disability, but had not submitted evidence to establish a causal relationship, i.e. nexus, between this disability and service or between this disability and a service-connected disease or injury. The Veteran submitted another claim in March 2012. Both the July 2012 rating decision and February 2014 Statement of the Case (SOC) denied reopening the claim, as no new and material evidence had been received. The relevant evidence submitted since the last rating decision include VA treatment records for lumbosacral spine status post laminectomy for herniated nucleus pulposus. None of these records concern or establish nexus. The only possibly relevant information concerning nexus is a statement from the Veteran’s representative during the Board hearing. The representative stated that Dr. W.O. had provided a statement reporting that the Veteran had “instability, where [the Veteran] was holding his weight up for so many years, and it kind of just weighed down on his lower back trying to lift his weight up.” The representative also stated that recent MRI findings somehow connected the disability to the right knee. However, the representative only submitted the same February 2006 opinion discussed above, which does not mention the back, and a report of MRI noting multilevel severe degenerative disc disease without any discussion of etiology. Therefore, this opinion is neither new (and had been submitted before) nor is it material (it is not relevant to the back). There is no other relevant information concerning the etiology of the lumbosacral spine disability.   Although the threshold to reopen is low, such a threshold is not met in this case and the benefit-of-the-doubt doctrine is not for application. See Shade, 24 Vet. App. at 118. The application to reopen the claim is denied in the absence of new and material evidence. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel