Citation Nr: 20009730 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 09-50 055 DATE: February 5, 2020 ORDER Entitlement to service connection for a left ankle condition, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a right ankle condition, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a right knee condition, to include as secondary to service-connected left patellofemoral syndrome (left knee condition), is denied. Entitlement to service connection for a right shoulder condition, to include as secondary to service-connected left shoulder rotator cuff tendonitis with arthritis (left shoulder condition), is denied. FINDINGS OF FACT 1. The Veteran’s left ankle condition is not etiologically related to service or secondarily related to or aggravated by his service-connected conditions. 2. The Veteran’s right ankle condition is not etiologically related to service or secondarily related to or aggravated by his service-connected conditions. 3. The Veteran’s right knee condition is not etiologically related to service or secondarily related to or aggravated by his service-connected left knee condition. 4. The Veteran’s right shoulder condition is not etiologically related to service or secondarily related to or aggravated by his service-connected left shoulder condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle condition, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right ankle condition, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right knee condition, to include as secondary to service-connected left knee condition, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a right shoulder condition, to include as secondary to service-connected left shoulder condition, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to September 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in August 2012 when it was remanded to the RO to obtain VA examinations and in December 2017 when it was remanded to obtain additional VA examinations, addendum opinions, and medical treatment records. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is service connected for left patellofemoral syndrome, left shoulder rotator cuff tendonitis with arthritis, tinnitus, and posttraumatic stress disorder. 1. Entitlement to service connection for a left and right ankle condition, to include as secondary to service-connected disabilities, is denied. The Veteran contends that his claimed right and left ankle conditions are due to his active service. The Veteran’s service treatment records (STRs) show an undated record which includes a complaint of left ankle pain due to twisting his ankle from running in sand. In his May 2004 final physical, he is noted to have his left shoulder, knee, and ankle findings on limited light duty. His STRs do not contain any notations of treatment for any right ankle condition. In his November 2008 VA Form 21-526 Application for Compensation (Application), the Veteran filed for entitlement to service connection for his right and left ankles and stated that he had irritation in the bones or tendons and that he was put on light duty at Camp Lejeune. In a February 2009 Statement in Support of Claim, the Veteran explained that his ankle problems were noted in his final physical and that he has not sought treatment for all of his issues post-service because he was told all issues would heal with time. In a March 2009 lay statement, the Veteran stated that his ankles click and pop, and he attributes those symptoms to marching with full gear and massive amounts of running in service. In his March 2009 Notice of Disagreement, the Veteran claimed bilateral ankle arthritis as a service-connected condition. In a January 2010 lay statement, the Veteran stated that he twisted his left ankle while training in sand and was denied medical attention. He further stated that he was forced to walk on the ankle for two days, including a night movement of about five miles. He explained that he went for medical treatment when he got back and was not given light duty or medication to help with the pain or with recovery. He stated that he still has decreased stability in the ankle, and it gives out. Regarding his right ankle, he contended that the stress incurred from constant running, marching, and maneuvering in full combat gear over four years led to clicking and popping in the ankle which is moderately painful. The Veteran underwent a July 2016 VA ankle conditions examination. The examiner stated that the Veteran has no current disability for either ankle. The Veteran reported that he had a left ankle sprain while in the service while at Camp Lejeune and was treated for this condition but had no particular in-service right ankle injury. The Veteran contended that he had issues with stiffness of the ankles during service, particularly as a result of the physical demand requirements, and he would notice issues when climbing up and down stairs. The Board notes that the December 2017 Board remand found this examination inadequate, due to inconsistent findings and the examiner’s failure to address why the Veteran’s statements and complaints were discounted. In April 2018, a VA examiner provided nexus opinions regarding the Veteran’s bilateral ankles after an in-person examination and review of the claims file. The examiner provided a negative direct service connection nexus opinion and rationalized that the Veteran’s symptoms are subjective only and objective examination was normal except for mildly-decreased active motion in both ankles. Further, the examiner stated that there was no objective evidence of a chronic condition and plain radiography of both ankles showed no pathology consistent with ongoing impairment, and thus, no nexus is established. The examiner provided a negative secondary service connection nexus opinion and rationalized that there was no evidence of any medical condition which would contribute to or cause problems with the ankles. The examiner provided a negative nexus opinion regarding aggravation of a nonservice-connected disability by a service-connected disability. The examiner’s rationale was that there was no evidence of ankle injury or any medical evaluation or treatment of the ankles during active duty. The examiner further noted that the separation examination does not appear to be available in the claims file, but a negative orthopedic examination is referred to in the February 2009 rating decision and the July 2016 VA examination indicated no objective evidence of ankle pathology including normal x-rays of both ankles. The examiner further explained that there is no associated medical condition which would produce an aggravation or precipitation of ankle symptoms. Addressing the Veteran’s ankle complaints, the examiner stated that there are no objective findings which correlate with the Veteran’s complaints. The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). However, the Veteran has presented no competent and persuasive evidence showing that any right or left ankle condition is related to his active service or to a service-connected disability. See Ledford, 3 Vet. App. at 89. The Veteran is competent to observe pain symptoms but, in the absence of medical training or credentials, is not competent to provide a competent opinion as to a diagnosis of a right or left ankle condition, or to ascertain whether current symptoms represent a continuation or sequelae of any right or left ankle condition. The Veteran is also not competent to find a secondary etiological relationship between two or more disabilities, be it causation or aggravation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds the April 2018 VA negative nexus opinions to be well-reasoned and affords these opinions significant probative value, given that they were based upon a claims file review and were supported by a detailed rationale. The preponderance of the evidence is against the claims of entitlement to service connection for any right or left ankle conditions, including on a secondary service connection basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claims are denied. 2. Entitlement to service connection for a right knee condition, to include as secondary to his service-connected left knee condition, is denied. The Veteran contends that his right knee condition is related to his active service, and due to his service-connected left knee patellofemoral syndrome. The Veteran’s service records do not contain any notations of treatment for a right knee condition. In his November 2008 application, the Veteran stated that he was claiming his right knee condition due to stress on the kneecap and indicated that he was put on light duty and treated with physical therapy. The Board notes that his STRs indicate that he was treated for a left knee condition and was put on limited duty for left knee issues but are silent for right knee issues. In his March 2009 Notice of Disagreement, the Veteran stated that he believes his right knee condition is due to his service-connected left knee condition and claimed that he had arthritis in both knees. In March 2009, the Veteran submitted a lay statement explaining that he was subjected to massive amounts of running practice for the physical fitness test. He stated that he did a minimum of 30 miles of forced marches with full gear and weapons, which led to the deterioration of his left knee and caused patellofemoral syndrome. He further stated that he started to favor his left knee and used his right knee to make up for it, but that he was told that physical therapy would help his left knee and that he would then stop favoring his right knee. He explained that he mentioned his right knee to the medical officer but was told that only the left knee needed treatment. He stated that he attributes the current right knee pain to the favoring his left knee. A May 2009 VA physician note listed the Veteran’s complaints of his knees hurting since around January 2004, with his right knee giving noise and pain. A June 2009 VA nursing note stated that the Veteran complained of bilateral knee pain and stated that a military doctor had told him it was from overuse. In a December 2009 VA physician note, the doctor noted the Veteran reported his knees have been hurting for the last three years. The Veteran submitted a January 2010 lay statement and explained that he had the same problems with his right knee as he did with his service-connected left knee. He stated that during squatting or picking up weight, he experiences popping, crunching, and sharp and extreme pain, and that his concerns were voiced to doctors and dismissed. He further stated that he was required to participate in daily runs of at least three miles, running in full gear, repelling, dropping to the ground, dismounting vehicles, and forced marches with full combat load. He explained that he cannot run or walk long distances without severe pain, cannot squat with or without extra weight, and cannot stand for extended periods without knee pain. In January 2013, the Veteran’s in-service roommate submitted a buddy statement attesting to the Veteran’s knee problems in service. He stated that the Veteran’s knees worsened over time and he was on limited duty due to pain and agony from his knee problems. He further stated that he has witnessed the Veteran doing at-home therapy at the barracks and also witnessed him numerous times walking with a limp and a stutter step after mandatory physical activities such as running and hikes. The Veteran submitted a Statement in Support of Claim in September 2015 and stated that he believes that his right knee should be compensated the same as the left knee because the examination testing was the same for both knees, yet he is not service connected for the right knee. In June 2016, the Veteran underwent a VA knee conditions examination. The examiner listed the Veteran’s diagnosis of bilateral patellofemoral pain syndrome with a date of diagnosis for the right knee as September 2015. The examiner provided a negative direct service connection nexus opinion based on a review of the claims file and an in-person examination. The examiner rationalized that STRs are silent regarding a right knee condition, and post-service treatment records are silent regarding a right knee condition until 2009. Further, the examiner stated that there was no evidence of in-service condition or chronic progressive complaints from 2004 to 2009. The examiner also provided a negative secondary service connection nexus opinion and rationalized that patellofemoral syndrome is not a compensatory condition caused by a contralateral joint condition. The June 2016 examiner further provided a negative aggravation of a nonservice connected condition by a service-connected disability opinion. The examiner stated that he could not determine a baseline level of severity based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by a service-connected condition. The examiner rationalized that a treatment record from 2009 indicates, right knee pain but there is no objective examination data available for comparison. The examiner stated that the Veteran’s left knee condition was not at least as likely as not aggravated beyond its natural progression by his service-connected left knee condition and rationalized that patellofemoral syndrome is not a compensatory condition, and it is caused by structural abnormalities of the affected knee involving tracking of the patella during flexion and extension. The Board notes that the December 2017 Board decision found the June 2016 examination inadequate to adjudicate the claim because the examiner failed to provide an adequate rationale for the negative nexus opinions addressing direct service connection and secondary service connection on an aggravation basis, including why the examiner discounted the Veteran’s lay statements. In April 2018, a VA examiner provided nexus opinions regarding the Veteran’s right knee condition based on a review of the claims file and an in-person examination. The examiner provided a negative direct service connection nexus opinion and rationalized that the symptoms are subjective only, and objective examination is normal, and that there is no objective evidence of a chronic condition, and thus, no nexus is established. The April 2018 examiner further provided a negative secondary service connection nexus opinion and rationalized that the two conditions are not medically related, and the claimed disorder is an entirely separate entity from the service-connected condition and is unrelated to it. Further, the examiner stated that the medical literature does not support a medical relationship, and a nexus is not established. The examiner also provided a negative aggravation of a nonservice connection condition by a service-connected condition nexus opinion. The examiner’s rationale was that continues to be no objective evidence of pathology. In September 2019 VA clarification opinion, the examiner addressed the Veteran’s knee complaints and stated the Veteran expressed that he believes his right knee is service connected because he was favoring his left knee. The examiner stated that his negative nexus opinion was unchanged after reviewing the Veteran’s lay statements. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The April 2018 and September 2019 VA opinions are based on a detailed and thorough examination of all private and VA medical evidence and took into consideration the Veteran’s lay statements. Accordingly, the April 2018 and September 2019 VA knee conditions examination and clarification reports are the most probative medical evidence of record, and the Board affords them significant probative value. In reaching its determination in this case, the Board has considered the Veteran’s lay statements, including his March 2009 lay statement, when he stated that he utilized his right leg to compensate for his left knee disability, which caused him to have right knee problems. The aforementioned buddy statement has also been considered. These lay individuals are certainly competent to describe lay observations of pain and injury but do not possess the training or credentials to competently diagnose a current condition or to ascertain the etiology of such condition, both in terms of direct service connection and secondary service connection (incurrence or aggravation). These lay contentions do not constitute competent evidence and thus lack probative weight in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the April 2018 and September 2019 VA opinions hold significant probative value. Accordingly, for the reasons described above, the preponderance of the evidence weighs against the Veteran’s claim, and the benefit-of-the-doubt rule does not apply. The claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a right shoulder condition, to include as secondary to his service-connected left shoulder condition, is denied. The Veteran contends that his right shoulder condition is related to his active service, including as secondary to his service-connected left shoulder condition. The Veteran’s service records do not contain any notations of treatment for a right shoulder condition. In a February 2009 Statement in Support of Claim, the Veteran explained that his shoulder problem was noted in his final physical and that he has not sought treatment for all of his issues post-service because he was told all issues would heal with time. The Board notes that the Veteran does not indicate which shoulder he was referring to and points out that the Veteran was not granted entitlement to service connection for his left shoulder until July 2016 with an effective date of November 2008. In the March 2009 lay statement, the Veteran stated that he completed fireman’s carries and massive amounts of pull-ups without proper time to rest the muscles. He further stated that he brought up his shoulder problems to the corpsman during his final physical, and that he believes that four years of carrying 100-pound packs and doing extreme amounts of pull-ups resulted in damage to both shoulders. He stated that he cannot lift his arms past horizontal while holding weight without pain and clicking. In May 2009, the Veteran had a VA follow up visit and complained of his shoulders having constant pain off and on and feeling like they will come out of the socket. In a December 2009 VA physician note, the physician recorded that the Veteran stated that his shoulders have been hurting five plus years. The Veteran reported that he cannot raise his shoulder above shoulder level with weight, and it clicks and hurts, mild to moderate at times. He was diagnosed with bilateral shoulder pain. Also, in December 2009, the Veteran underwent a VA orthopedic consultation and complained of bilateral shoulder pain since 2004 and was diagnosed with bilateral shoulder pain with probable rotator cuff tendinosis. In January 2010, the Veteran submitted a lay statement and stated that he has crepitus in the right shoulder and has popping and clicking when it is under any weight load. He stated that his shoulder catches and pops when lowering or lifting weight and is accompanied by sharp pain. In an April 2010 VA orthopedic surgery consultation, the Veteran was diagnosed with bilateral shoulder pain with right shoulder bursitis and tendinopathy. A October 2010 private physician MRI report reflects the Veteran’s contention that he has had chronic bilateral shoulder pain for the past 13 years. The Veteran was diagnosed with mild degenerative changes to the acromioclavicular joint and mild subacromial/subdeltoid bursitis. In a June 2013 VA orthopedic surgery consultation note, the Veteran complained of bilateral shoulder pain that started in December 2012. In a May 2014 VA annual outpatient clinical assessment note, the Veteran complained of bilateral shoulder pains that he has had for many years. A September 2015 private physician note stated that the Veteran reported having bilateral shoulder pain for 12 to 13 years, and, while he was in the Marines, he was doing pull-ups and had pain in both shoulders which has worsened over the years. In June 2016, the Veteran underwent a VA shoulder conditions examination. The examiner listed the Veteran’s diagnoses as right bicipital tendonitis with a date of diagnosis of October 2015; rotator cuff tendonitis with a date of diagnosis of December 2009; and acromioclavicular joint osteoarthritis with a date of diagnosis of October 2015. The Veteran reported issues with bilateral shoulders since military service. He stated that during deployment in Africa, he was doing pull-ups and developed popping or cracking sensation and pain to bilateral shoulders. He further stated that the stiffness eventually improved but he noticed issues with a catching sensation when raising bilateral arms above the level of the shoulder. The examiner provided a negative nexus opinion and rationalized that the STRs are silent regarding right shoulder complaints or a right shoulder condition, and post-service treatment records are silent regarding right shoulder complaints or a diagnosed right shoulder condition until 2009, and the Veteran separated in 2004. The Board notes that the December 2017 Board decision found this examination inadequate to adjudicate the claim because the examiner failed to address whether the Veteran’s left-shoulder disability aggravated his right shoulder condition, did not discuss why the Veteran’s lay accounts were discounted, and did not discuss the etiology of the Veteran’s diagnosed shoulder arthritis and tendinitis. An April 2018 VA examiner provided opinions regarding the Veteran’s right shoulder condition based on a review of the claims file and an in-person examination. The examiner provided a negative direct service connection opinion and rationalized that during service the Veteran’s condition was only acute and that there is no evidence of chronicity of care. For secondary service connection, the examiner provided a negative nexus opinion and stated that the two conditions are not medically related, and the claimed disorder is unrelated and an entirely separate entity from the service-connected condition. The examiner further stated that the medical literature does not support a medical relationship, and a nexus is not established. The April 2018 examiner provided a negative nexus opinion as to whether the Veteran’s service-connected conditions aggravated his nonservice-connected right shoulder condition. The examiner’s rationale was that none of the Veteran’s service-connected conditions would cause an aggravation of shoulder symptoms. In a September 2019 clarification opinion, the examiner addressed the Veteran’s lay statements and explained that though the Veteran stated that carrying heavy rucksacks and doing many push-ups and pull-ups caused his right shoulder condition, there is no evidence in literature that push-ups and pull-ups are damaging to the shoulder joints. The examiner pointed out that regular and even vigorous exercise routines are positive health factors. The examiner further reasoned that carrying a heavy pack or rucksack loads the upper back, lower back and lower extremities, but the shoulder joints are free and not subject to injury from this type of loading; thus, the examiner’s negative opinions were unchanged. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The April 2018 and September 2019 VA opinions are based on a detailed and thorough examination of all private and VA medical evidence and took into consideration the Veteran’s lay statements. Accordingly, the April 2018 and September 2019 VA shoulder conditions examination and clarification reports are the most probative medical evidence of record, and the Board affords them significant probative value. In reaching its determination in this case, the Board has considered the Veteran’s lay statements. In his September 2005 Notice of Disagreement, the Veteran stated that he believes his right shoulder injury began in service and was caused by doing many pull-ups without time to recover. The Veteran is certainly competent to describe lay observations of pain and injury, but he does not possess the training or credentials to competently diagnose a current condition or to ascertain the etiology of such condition, both in terms of direct and secondary service connection. His lay contentions do not constitute competent evidence and thus lack probative weight in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Arthritis is a chronic disease pursuant to 38 U.S.C. § 1101 and 38 C.F.R. §§ 3.307, 3.309(a). For arthritis, the presumptive period is one year. 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a)(3). Arthritis symptoms are first noted in the Veteran’s medical records in April 2016 and diagnosed in VA records in March 2010, over four years after separation from service. There is no documented evidence of arthritis in the one year following service. Therefore, the presumption that the Veteran incurred arthritis of his right shoulder in service is not for application. 38 C.F.R. §§ 3.307, 3.309(a). The Board finds that the April 2018 and September 2019 VA opinions hold significant probative value. Accordingly, for the reasons described above, the preponderance of the evidence weighs against the Veteran’s claim, and the benefit-of-the-doubt rule does not apply. The claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, Associate Counsel 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.