Citation Nr: 18154786 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-47 773 DATE: November 30, 2018 ORDER Entitlement to service connection for a left shoulder disability, claimed as arthritis, is denied. Entitlement to service connection for a right shoulder disability, claimed as arthritis, is denied. Entitlement to service connection for a left knee disability, claimed as arthritis, is denied. Entitlement to service connection for a right knee disability, claimed as arthritis, is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have a left shoulder disability, to include arthritis, due to service or any incident therein, or that manifested within one year of service. 2. The preponderance of the evidence reflects that the Veteran does not have arthritis of the right shoulder due to service or any incident therein, or that manifested within one year of service. 3. The preponderance of the evidence reflects that the Veteran does not have arthritis of the left knee due to service or any incident therein, or that manifested within one year of service. 4. The preponderance of the evidence reflects that the Veteran does not have arthritis of the right knee due to service or any incident therein, or that manifested within one year of service. CONCLUSIONS OF LAW 1. The criteria for arthritis of the left shoulder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for arthritis of the right shoulder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 3. The criteria for arthritis of the left knee have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 4. The criteria for arthritis of the right knee have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1977 to January 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of April 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the benefits being sought. VA’s duty to notify was fulfilled by June 2011, January 2013, and February 2013 letters. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018). Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the Veteran’s service treatment records and VA medical treatment records have been obtained. Hurd v. West, 13 Vet. App. 449, 452 (2000). The Veteran was afforded VA examination in January 2013 for his bilateral shoulder and knee disabilities. The examinations also took into consideration the Veteran’s pertinent medical history, his lay assertions and complaints, and a review of the record. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Thus, the Board finds that the VA has complied with its duty to notify and assist in the development of a claim. Hence, no further notice or assistance is required to fulfill that duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff’d, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309 (a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 was incurred in service. 38 C.F.R. § 3.303 (d) (2018). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2018); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for arthritis of the knees and shoulders is denied The Veteran contends that he has arthritis of the bilateral shoulder and bilateral knee as a result of injuries he received from an accident at Dead Man’s Curve, while in service. The Veteran’s service treatment records (STRs) dated October 9, 1978 show complaints of left knee, left forearm and right thumb pain resulting from a motorcycle accident at Dead Man’s Curve. The clinician conducted an examination and noted that the Veteran’s left knee had a good range of motion (ROM), swelling and redness. His impression was “soft tissue injuries” and “No [prescription] needed.” The next day, October 10, 1978, the Veteran was again seen for complaints of left knee pain and swelling. The clinician diagnosed a contusion of the left knee. The Veteran was given Ace bandages and crutches. Treatment notes dated December 17, 1978, indicate the Veteran’s complaint of pain in the right foot. The Veteran told the attending physician that he “fell off motorcycle today and ran over the foot.” The Veteran was provided crutches and told to ice the foot. An examination was requested on the right foot. Notes dated on December 21, 1978, four days later during the right foot examination, the clinician noted that the right foot was “grossly swollen.” His assessment was a severe contusion of the right foot. The Veteran’s separation medical in May 1981 noted no complaints of shoulder or knee issues. The Veteran first began VA treatment in January 2011, when his family brought him to the emergency room at a VA medical facility because he fell after running into some lockers one and a half weeks earlier. At the emergency room, he reported head, knee, back, and shoulder pain that began one and a half weeks earlier. In March 2011 he was treated at a VA clinic for frostbite and pneumonia after having been found by his family. He was discharged with a diagnosis of “arthritis,” absent X-ray findings. In May 2011, a VA rheumatology consult note showed that the Veteran had been having joint pain mainly in his shoulders for the previous three weeks. In June 2011, at a VA regular checkup note, the physician reported that the Veteran had “a new complaint,” which was bilateral shoulder pain which had been present for about one month. Adhesive capsulitis was suspected. In July 2011, the Veteran’s shoulders were examined. The Veteran “[c]ould not recall any specific trigger nor h[istory]/o[f] trauma to the shoulder.” The physician noted that there had been no similar episode in the past, and that onset of pain was in January 2011. The Veteran had limited range of motion in both shoulders. The physician diagnosed adhesive capsulitis and noted that the majority of the time it was idiopathic though it had been associated with diabetes, ischemic heart disease, COPD, thyroid disorders, cervical disc disease, Parkinson’s disease, and hemiplegia. The record does not show that Veteran does not have these conditions. Notes dated in July 2011, indicate the Veteran’s return for a follow-up, and his complaints of arthralgias, especially his shoulders and knees, and muscle aches and pain. The attending physician noted that he was found to have frozen shoulders (earlier in the year) and “[h]e seems to work hard with manual labor.” She concluded that “at this point, we don’t consider him to have any connective tissue disease or inflammatory arthritis without more evidence physically or per laboratory results.” A January 2013 x-ray of the knees showed scattered calcifications in the popliteal region bilaterally which were vascular in nature. The report stated that no joint effusion or joint space narrowing was present in either knee. Arthritis was not diagnosed. The impression was “vascular calcifications. No acute pathology demonstrated.” The Veteran was afforded VA examinations in January 2013. The examiner provided negative nexus opinions for both bilateral knee and bilateral shoulder conditions. Regarding the shoulders, the examiner diagnosed adhesive capsulitis of both shoulders. He based his conclusion on the fact that the Veteran’s history was silent for many years post-service and more significantly, his post-service employment involved heavy and repetitive types of work. Regarding the knees, the VA examiner diagnosed bilateral tendonitis and cited as his rationale, that the Veteran had not had complaints for many years post-service. Additionally, his post-service occupations included physical labor such as working on oil rigs, construction, and marble granite installation. The examiner explained that the Veteran’s post-service occupations in construction are likely to be the cause. A February 2013 treatment record showed that after physical therapy for adhesive capsulitis in both shoulders, he still had some residual shoulder pain. VA treatment records from February 2013 through June 2016 do not contain reports of a knee problem or treatment for right knee symptoms. These records do contain references to bilateral shoulder pain. Upon review of the evidence presented above, the Board finds that the January 2013 opinions provide highly probative weight against the Veteran’s claims for service connection for bilateral shoulder and knee disabilities. The examiner reviewed the claims file and provided supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner explained that the Veteran’s post-service occupations were potential causes for the conditions. Further, there has not been any competent medical or lay evidence that contradicts the VA examiner’s findings. The examiner also noted that the lack of treatment for many years was a factor in his opinion. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran has not asserted that there has been continuity of symptomatology since service. In addition, it is significant that in the first instance of treatment for the shoulders and knees in January 2011, the Veteran reported onset of symptoms only a week and a half earlier, and stated that it began after running into a locker. This onset was consistently reported by the Veteran in conjunction with his subsequent treatment and is considered probative evidence in favor of a finding that the disabilities did not have their onset until approximately January 2011, which is many years after service. This is probative evidence against the claims. The Veteran has not submitted lay evidence indicating that he had shoulder or knee symptoms that have persisted since service. The Veteran contends that he has arthritis of the bilateral shoulder and bilateral knee as a result of his motorcycle accident in service. He is competent to report observable symptoms such as pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). He is also competent to report his observable symptoms such as pain and stiffness. However, because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The specific issue in this case, whether the Veteran has shoulder and knee disabilities that were caused by his in-service motorcycle accident, falls outside the realm of common knowledge of a lay person. Jandreau, 492 F .3d at 1377 n. 4. Determining the etiology of the Veteran’s bilateral shoulder and bilateral knee conditions requires medical inquiry into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Therefore, he is not competent to provide an etiology opinion or self-diagnose arthritis. Additionally, his assertions have been investigated by competent medical examination which found no arthritis, but rather adhesive capsulitis of the shoulders and tendonitis of the knees. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds the medical opinion and VA treatment records that show onset of symtpoms in January 2011 after running into a locker to be more persuasive. In July 2011, the Veteran’s mother submitted a letter to VA. She stated that the Veteran had been living with her since the beginning of February 2011, and that she noticed him having problems with his knees and shoulders. Her statements are competent and credible. She does not provide a lay theory of why these problems are related to service and therefore do not support a nexus. Also in July 2011, T. B., a relative of the Veteran, submitted a letter to VA. He described his observations of the Veteran having difficulty picking objects up and having limited mobility in his arms. His statements are competent and credible. However, he does not provide a lay theory as to why his arm symptoms are related to service and therefore do not support a nexus. The probative evidence of record does not show that the Veteran has arthritis of the knees or shoulders. A January 2013 knee x-ray was negative for arthritis bilaterally. Although “arthritis” of the shoulders was mentioned in March 2011, the subsequent diagnosis was adhesive capsulitis. Therefore, the presumption of service connection for arthritis as a chronic disease if manifested to a 10 percent degree or more within one year of separation from service is not for application. 38 C.F.R. § 3.309 (a) (2018). Based on the evidence of record, the Board concludes that the Veteran is not entitled to service connection for a bilateral shoulder disability. The Veteran’s STRs are absent diagnosis or treatment for any shoulder condition. The Board, however, notes a singular complaint of left forearm pain, but the clinician noted it as a soft tissue injury. Since the initial complaint in October 1978, there has not been any other complaint in-service or post-service of a forearm or shoulder issue until January 2011, when the Veteran went to the emergency room one and a half weeks after an injury. Later, the VA examiner did not find arthritis, but instead specifically diagnosed adhesive capsulitis, which he determined bears no nexus to service. As discussed above, the VA examiner’s opinion and VA treatment records are the most probative evidence. As for the Veteran’s claim for service connection for a bilateral knee disability, the Board also concludes that the Veteran is not entitled to service connection. Although the Veteran’s STRs show diagnoses of left knee contusion in October 1978 and right foot contusion in December 1978, there are no other documented complaints or treatment therefor, in service or post-service until approximately 30 years after service. As discussed above, the VA examiner’s opinion and VA treatment records are the most probative evidence. In summary, the Board finds that the preponderance of the probative evidence of record, especially the opinions provided by the January 2013 VA examiner and the VA treatment records, weighs against a finding that the Veteran has bilateral shoulder or knee disabilities that are related to service. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND 1. Service connection for hepatitis C is remanded The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1251. Under the M21-1, risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades and immunization with a jet air gun injector. The evidence of record shows that in January 2011, that the received a diagnosis of hepatitis C. He contends it is a result of service; specifically, from dental surgery, therein. Although exposure to unsterilized dental filling tools is not among the list of risk factor for the development of hepatitis C, the Veteran in an April 2013 correspondence indicated that his additional risk factors included giving blood during Basic Training, “probably” high-risk sexual activity, IV drug or internasal use, heavy alcohol use while stationed at MacDill Air Force Base and getting tattoos and earrings. As the Veteran has provided additional in-service risk factors for the possible cause of his hepatitis C, and he has a diagnosis of hepatitis C during the appeal period, the low threshold of McLendon is triggered, and an examination is required to resolve the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to a TDIU is remanded Regarding the claim for entitlement to a TDIU, the Veteran is not currently service connected for any disability. As such, this claim is dependent on the outcome of the service connection claim being remanded. Therefore, the Board also remands the TDIU issue as inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of his hepatitis C. Even if the examiner determines that hepatitis C has resolved, an etiology opinion must be provided because the disability was present during the appeal period. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran to include prior surgeries, IV drug use, giving blood during Basic Training, tattoos, body piercing (earrings) and high-risk sexual activity. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Although an independent review of the claims file is required, the examiner’s attention is drawn to the following: A. Dental surgery of September 1977 and hospital admission therefor, from September 14, 1977, to September 17, 1977. B. August 1978 BAT results. C. A September 1981 finding of the DAARP Rehabilitation Committee, that the Veteran be separated from the Air Force for failure to adhere to alcohol rehabilitation. D. A January 2011 treatment note, indicating the Veteran’s history of drug and alcohol abuse. E. Veteran’s lay statement of April 2013, stating that he gave blood during Basic Training, “probably” high-risk sexual activity, IV drug or internasal use, heavy alcohol use while stationed at MacDill Air Force Base, getting tattoos and earrings. F. A July 2014 medical note indicating that the Veteran’s “hepatitis C is no longer detected, LFT’s have normalized, and US of the abdomen is normal. As per GI note, he was exposed to the HCV, and it is possible he has cleared the virus.” The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis C either first manifested in service or resulted from an in-service risk factor. The examiner must identify all the Veteran’s potential risk factors for contracting hepatitis C, to include whether those risk factors occurred before, during, or after service. To the extent possible, the examiner must explain which of the reported hepatitis C risk factor is the most likely cause of the Veteran’s hepatitis C. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2 Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel