Citation Nr: 20006167 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 14-28 835 DATE: January 24, 2020 ORDER Entitlement to service connection or right shoulder disorder is denied. Entitlement to service connection for left shoulder disorder is denied. Entitlement to service connection for right leg/knee disorder is denied. REMANDED Entitlement to service connection for left knee disorder is remanded. Entitlement to service connection for left leg disorder is remanded. FINDINGS OF FACT 1. The Veteran’s right shoulder degenerative arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a right shoulder disorder is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran has a left shoulder disability related to an in-service injury or disease. 3. The Veteran’s right knee degenerative arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a right leg/knee disorder is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection a right leg/knee disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1976. In October 2017, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is of record. In March 2018, the Board remanded the issues on appeal for further development. With respect to the issues decided herein, the Board finds substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) The Board also remanded the issue of entitlement to service connection for degenerative disc disease and articular facet change of the cervical spine (a neck disorder). However, in a November 2019 rating decision, the Agency of Original Jurisdiction awarded service connection for this disorder; representing a full grant of the benefit sought on appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Entitlement to service connection or right shoulder disorder The Veteran contends that he injured his right shoulder when he fell off a trampoline in service. The Veteran has a current diagnosis of right shoulder degenerative arthritis as evidenced by the July 2019 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Although service treatment records do document that the Veteran fell off a trampoline in March 1974, there is no mention of any injury to the right shoulder. The only mention of the shoulder in service is a June 1972 clinical record that shows muscle soreness in the shoulders due to viral bronchitis. There was no mention of any musculoskeletal disorder. Further, the June 1976 service examination prior to discharge showed that the Veteran’s upper extremities were clinically evaluated as normal. Private treatment records show the Veteran first reported right shoulder pain approximately in April 2004, decades after his separation from service and decades outside of the applicable presumptive period. October 2006 and June 2009 private MRIs noted that the supraspinatus was torn, and large granulation tissue of the acromioclavicular joint impinges upon the bursal surface of the supraspinatus and infraspinatus tendons, tendinopathy to the long head and slight fraying of the long head of the bicep’s tendons, and degenerative blunting of the glenoid labrum. However, there was no indication of arthritis of the joint. Importantly, x-rays of the right shoulder in October 2009 were normal. While the Veteran is competent to report experiencing symptoms of pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which showed that when he initially sought treatment in April 2004, he reported the onset of pain as two months ago when his neck flared up. Moreover, a June 2009 private clinical record showed that the Veteran reported that his right shoulder pain began in April 2001 when he suffered a right shoulder strain. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms were manifestations of arthritis, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms were instead attributable to an April 2001 work injury. Service connection for right shoulder disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right shoulder disorder and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Taken together, the October 2009 and July 2019 VA examiners’ opinions establish that the Veteran’s right shoulder disorder is not at least as likely as not related to an in-service injury, event, or disease. The October 2009 VA examiner opined that the Veteran’s right shoulder condition was not caused by or a result of active military service. The examiner rationalized that based on the evidence of record, the Veteran was seen only on one occasion while on active duty for myalgia related to flu-like syndrome of the right shoulder, and was obviously unrelated to the right shoulder joint. There was no indication of right shoulder injury or disease while on active duty. Importantly, previously in the report, the examiner noted that the Veteran claimed he strained his right shoulder in 1973, but could not recall the exact incident. However, besides the one instance of right shoulder soreness, experiencing flu-like syndrome myalgia, there were no other complaints or concerns involving the right shoulder, history of injury or hospitalization. The July 2019 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner rationalized that after performing physical examination and reviewing medical records dated July 2006, October 2006, March 2009 and June 2009, it is less likely than not that the Veteran's condition is related to military service. The examiner was unable to locate documentation for diagnosis or treatment of a right shoulder condition prior to July 2006 within current available medical records. The trampoline accident in March 1974 notes neck pain, but does not mention injury to the right shoulder. The current right shoulder condition is less likely than not incurred in or caused by service. A nexus has not been established. In December 2019, the Veteran’s representative appeared to argue that the July 2019 VA opinion was inadequate because while the examiner provided a medical history and discussed current symptomatology, the examiner failed to provide an opinion. However, as noted above, this statement is inaccurate as the VA examiner did provide an opinion with rationale. Moreover, the Board recognizes that the medical evidence shows that the Veteran reported right shoulder pain in 2004, but the examiner indicated that there was no treatment prior to July 2006. Nevertheless, the Board finds that this mistake is harmless given that the first medical evidence of any right shoulder symptoms was still many years after service, and that both opinions primarily base their rationales on the lack of inservice incident. Moreover, again, the Veterans statements of pertinent symptomatology have been found to not be credible. In conclusion, the examiners’ combined opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes that his right shoulder disorder is related to an in-service injury, event, or disease, including the fall of the trampoline, he is not competent to provide a nexus opinion in this case. Again, this issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for right shoulder disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to service connection for left shoulder disorder The Veteran also contends that he injured his left shoulder when he fell off the trampoline in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although it is unclear whether the Veteran has a current left shoulder diagnosis, the Veteran has reported left shoulder pain at various times throughout the course of the appeal. The Board finds that these reports of pain constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). The Board concludes that, while the Veteran has a current diagnosis of left shoulder disorder, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder disorder began during service or is otherwise related to an in-service injury, event, or disease. As with the right shoulder, with the exception of shoulder soreness in connection with viral bronchitis, service treatment records are silent with respect to any complaints, injuries or diagnosis of a left shoulder disorder. Private treatment records show the Veteran reported a painful left shoulder after moving a battery in July 2006, decades after his separation from service. He reported that while lifting the battery, he felt a sudden tearing sensation. The impression was severe shoulder strain, rule out rotator cuff tear. While the Veteran is competent to report having experienced symptoms of left shoulder pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a left shoulder disorder. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board finds that the Veteran’s reports of pertinent symptomatology are not credible as he first reported the onset of left shoulder pain following an injury in July 2006 while lifting a battery. Taken together, the October 2009 and July 2019 VA examiners’ opinions establish that the Veteran’s left shoulder disorder is not at least as likely as not related to an in-service injury, event, or disease. The October 2009 VA examiner opined that the Veteran’s left shoulder condition was not caused by or a result of active military service. The examiner rationalized that based on the evidence of record, the Veteran was never evaluated for complaints related to the left shoulder while on active duty. He was never evaluated or treated for a left shoulder condition. Importantly, previously in the report, the examiner noted that the Veteran claimed that he might have injured his left shoulder in 1973, but could not remember. He stated that he was not seen by any medical personnel and there was no evaluation or treatment. He stated that the pain totally resolved in 1973, but reappeared in 2001 after heavy lifting. The Veteran reported that he strained his left shoulder while working as an over-the-road truck driver, making deliveries. The Board notes that contemporaneous x-rays of the left shoulder were normal. Moreover, in private treatment records, the Veteran reported that the 2001 injury was to the right shoulder, not the left. The July 2019 VA examination showed a normal left shoulder. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner rationalized that the Veteran denied having a left shoulder disorder and stated that this left shoulder condition had resolved. In sum, the examiners’ combined opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Again, the Veteran believes his left shoulder disorder is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for left shoulder disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to service connection for right leg/knee disorder The Veteran also contends that he injured his right leg/knee when he fell off a trampoline in service. The Veteran has a current diagnosis of right knee degenerative arthritis as evidenced by the July 2019 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Although service treatment records do document that the Veteran fell off a trampoline in March 1974, there is no mention of any injury to the right knee. However, an August 1972 service treatment record does document that the Veteran reported swollen knees for two weeks; however, on examination, there was no edema and the knees were stable. Further, in June 1974, the Veteran reported with right knee pain and an abrasion on the right patella. The abrasion was superficial, and no musculoskeletal diagnosis was made. The Veteran again reported right leg pain in December 1975; however, a January x-ray was normal. The impression was shin splints. Importantly, the June 1976 service examination prior to discharge showed that the Veteran’s lower extremities were clinical evaluated as normal. Private treatment records show the Veteran first reported right knee pain in November 2007, decades after his separation from service and decades outside of the applicable presumptive period. Importantly, at the October 2009 VA examination, the Veteran denied any right leg condition as well as pain or discomfort of the right knee. While the Veteran is competent to report experiencing symptoms of pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which showed that he initially sought treatment for right knee pain in November 2007. Moreover, at the October 2009 VA examination, the Veteran expressly denied any right leg or knee problems. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms were manifestations of arthritis, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which does not show a diagnosis of arthritis until many years after service. Service connection for right leg/knee disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right leg/knee disorder and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Taken together, the October 2009 and July 2019 VA examiners’ opinions establish that the Veteran’s right leg/knee disorder is not at least as likely as not related to an in-service injury, event, or disease. The October 2009 VA examiner stated that the Veteran denied right leg disorder and there were no complaints pertaining to the right knee or areas below the right knee or skin around the right knee. There were no functional limitations. Importantly, previously in the report, the examiner noted that the Veteran claimed no such concern about the right leg and reported that he had no problems with his right knee or any problems below the right knee. He had no lumps that he knows of and he does not know where the claim came from. The Veteran believed this was an error. The July 2019 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner rationalized that after performing physical examination and reviewing medical records dated June 1974 and January 1976, it is less likely than not that the Veteran's condition is related to military service. The examiner noted documentation for an acute condition of skin abrasion to the right knee in June 1974. However, x-rays taken in January 1976 were within normal limits and diagnosis of shin splints was made. The current diagnosis of degenerative arthritis of the right knee is unrelated to a diagnosis of shin splints. The current right knee condition is less likely than not incurred in or caused by service. A nexus has not been established. Again, in December 2019, the Veteran’s representative appeared to argue that the July 2019 VA opinion was inadequate because while the examiner provided a medical history and discussed current symptomatology, the examiner failed to provide an opinion. However, as noted above, this statement is inaccurate as the VA examiner did provide an opinion with rationale. In sum, the examiners’ combined opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes that his right leg/knee disorder is related to an in-service injury, event, or disease, including the fall of the trampoline, he is not competent to provide a nexus opinion in this case. Again, this issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for right leg/knee disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for left knee disorder and left leg disorder are remanded. The July 2019 VA examiner also found that the Veteran’s left knee condition was not related to service. The examiner primarily relied on the fact that the trampoline injury only noted injury to the neck and there was no evidence of a left knee condition prior to April 2009. The examiner did not clearly address whether there was a separate left leg disorder. Unfortunately, the Board must find the examination with opinion is inadequate. In this regard, the examiner failed to address other service treatment records documenting left knee pain. Moreover, the first post service medical evidence concerning left leg pain and left knee pain is dated from 1997, over 20 years prior than what the examiner stated. At that time, it was noted that the left lower extremity problem was more likely than not related to previous injuries to his knee and left leg, which had resulted in swelling and soft tissue breaking down with infection, cellulitis and ulceration. As such, the Board finds that a new VA examination with opinion is necessary to address the Veteran’s claimed left knee and left leg disorder. In light of the need to remand, any additional VA clinical records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA clinical records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee and left leg disorder. Clearly determine whether the Veteran suffers from a left leg disorder, including venous stasis, cellulitis and ulceration, separate and apart from his left knee disorder. The examiner must opine whether any disability is at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including the documented inservice incidents. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.