Citation Nr: 20054530 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 17-22 321 DATE: August 18, 2020 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder disability was not caused or aggravated by service, to include the in-service episode of meningitis; it did not manifest to a compensable degree within a year of service; and it was not caused or aggravated by the service-connected elbow disability. 2. The Veteran’s right shoulder disability was not caused or aggravated by service, to include the in-service episode of meningitis; it did not manifest to a compensable degree within a year of service; and it was not caused or aggravated by the service-connected elbow disability. 3. The Veteran’s left knee condition was not caused or aggravated by an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 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 August 1963 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107. In January 2019, the Board remanded this matter to the RO to obtain and associate with the claims file the Veteran’s VA treatment records and obtain addendum medical opinions. Specifically, the RO requested medical opinions addressing whether the Veteran’s bilateral shoulder disability is etiologically related to his in-service episode of meningitis; and whether the current bilateral shoulder disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected bilateral elbow disability. In addition, the RO requested a medical opinion addressing whether the Veteran’s current knee disability is etiologically related to his active duty service, to include his in-service episode of meningitis. The RO complied to the extent possible and service connection was denied in a supplemental statement of the case (SSOC) dated May 2020. [The claim for the right knee was granted.] The Board finds there has been substantial compliance with the January 2019 remand instructions, and the claims are ready for disposition on the merits. See Stegall v. West, 11 Vet. App. 268, 271(1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149(2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Generally, 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). Service connection may also be established for those “chronic diseases” listed in 38 C.F.R. § 3.309 (a) where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. See 38 C.F.R. §§ 3.303 (b), 3.307; Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. Service Connection 1. Entitlement to service connection for bilateral shoulder disability The Veteran maintains that his current bilateral shoulder disability, diagnosed as bilateral degenerative arthritis and rotator cuff tendonitis, is secondary to his service-connected bilateral elbow disability, or in the alternative, is etiologically related to his in-service episode of meningitis. As to the first element of service connection, the record is clear that the Veteran was diagnosed with rotator cuff tendonitis in 2002 and a June 2017 VA examination showed a diagnosis of bilateral shoulder degenerative arthritis. In addition, as to the Veteran’s claim that his bilateral shoulder disability is secondary to his service-connected elbow condition, he was granted service-connection for a bilateral elbow condition in August 2017 effective March 2014. Thus, the remaining question before the Board is whether there is medical evidence establishing a link between the Veteran’s military service and his current bilateral shoulder disability, and/or whether there is medical evidence establishing a link between the Veteran’s service-connected disability of the elbows and the current bilateral shoulder disability. The Veteran’s service treatment records document that the Veteran was treated for meningitis over a course of a month-long hospitalization from November 1963 to December 1963, after which he was discharged with the final diagnosis of “meningococcic meningitis, treated, cured.” The Veteran was released with a medical profile limiting physical activity for 30 days, and continued to serve until his discharge in August 1966 without further meningitis episodes. The Veteran’s July 1966 exit examination notes all body systems were clinically normal, with no suggestion of any active meningitis pathology. He is not service-connected for meningitis, as this was a single episode during service that was treated and resolved. The record indicates the Veteran first established treatment for his shoulders in January 2002 where he was given a diagnosis of bilateral rotator cuff tendonitis, right greater than left, after complaining of “severe pain in both shoulders” since his bypass procedure a year prior. See January 16, 2002 Dickson-Diveley Midwest Orthopaedic clinical records. Since then, the Veteran had x-rays in 2017 showing the Veteran had developed mild degenerative changes of the left shoulder and early osteoarthritis on the right shoulder. Aside from the VA exams, the Veteran has opted for conservative treatment and as such, treatment records are otherwise limited. See June 2015 VA treatment records (noting Veteran did not want to seek further evaluations for shoulder pain). The Board notes the Veteran’s 39-year gap between his in-service meningitis treatment, and his first complaint and treatment of shoulder pain. Further, the Board finds the Veteran was discharged with no complaints of shoulder pain from service; and he noted his shoulder pain started a year prior after his bypass procedure when he was treated in 2002. He has not alleged that he actually experienced any shoulder-related symptoms or injuries during service, nor that he had continuity of symptoms thereafter until he was treated in 2002. In November 2015, a nurse practitioner conducted a private medical review and exam, opining that “it is as likely as not (a 50%/50% probability) that the Veteran’s current bilateral shoulder condition is secondary to his bilateral elbow contractures related to his prolonged immobility due to his hospitalization for his service incurred bacterial meningitis.” The nurse practitioner cites to medical literature, indicating that “according to medical literature, shoulders can accommodate for a loss in range of motion in the elbows. This process is documented in the medical literature and often referred to as ‘overusage syndrome.’ Due to the veteran’s loss of range of motion in both elbows, his bilateral shoulders had to compensate with biomechanical and kinematic overusage of movement with both shoulder joints in order to compensate for the limited elbow extension movement.” Finally, she adds, that the “demand level of the patient must be carefully considered….for specific lifestyle and employment demands” and states that “the loss of flexion must be taken into account,” because it is more limiting than the loss of extension, noting that “a loss of pronation can be accommodated for by abducting the shoulder.” The Board notes the opinion is lacking in several aspects. First, it cites to medical literature, but it does not explain how the principles apply to the Veteran’s medical circumstances. Second, it does not address pertinent areas in the Veteran’s medical record, such as the gap between the Veteran’s first complaint and his single episode of in-service meningitis; the Veteran’s occupational history; or the examiner’s use of “loss of pronation” when medical records indicate the Veteran did not manifest such loss. As such, the Board finds this opinion conclusory in nature as it discusses the Veteran’s condition and medical literature without making the connection between why the medical literature applies to the Veteran’s condition, and it also does not provide an adequate rationale as it does not discuss pertinent facts such as the Veteran’s occupational history. Therefore, the Board gives it no probative weight. In June 2017, the Veteran underwent another examination at the VA. During the examination, the Veteran reported he had been getting injections in his shoulders since 2002, but no other treatment for shoulder issues. The examiner diagnosed the Veteran with bilateral shoulder degenerative arthritis and confirmed the 2002 diagnosis of bilateral rotator cuff tendonitis right greater than left. The examiner then opined the bilateral shoulder condition is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service connected condition. The rationale pointed to the Veteran’s records showing a diagnosis of bilateral rotator cuff tendonitis in 2002 after he reported “severe pain in both shoulders since bypass a year ago”; the lack of in-service treatment for shoulder conditions; the 39-year gap since his in-service meningitis diagnosis in 1963 and the development of bilateral shoulder complaints in 2002; and medical literature supporting higher risk of shoulder tendonitis in persons with repetitive overhead activity, and further medical literature supporting degenerative changes due to occupational history and age as a higher risk. The Board notes this opinion did not adequately address the Veteran’s contentions of aggravation, and it is an inadequate nexus opinion on the theory of secondary service connection. It does have some probative value with respect to the theory of direct service connection. In September 2019, an addendum opinion was issued by a VA examiner to address the Veteran’s contentions. First, as to the direct service contention, after a review of the Veteran’s complete file, the examiner opined “the condition claimed bilateral shoulder DJD/ tendonitis was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The rationale pointed to the Veteran’s bilateral rotator cuff tendonitis diagnosis in 2002; no treatment in service or post-service until 2002; and the gap between shoulder complaints and the service event. The examiner also found medical literature supports finding that his tendinopathy that began in 2002 was a result from his job requirements in different areas such as a farmer / aircraft radios/ environment control system/ electronic repair for 39 years post-service, and the examiner noted “[t]endinopathy usually develops as a consequence of repetitive activity, generally at or above shoulder height, which leads to tendon degeneration and microvascular insult.” With respect to degenerative changes of the shoulder joint, repetitive motion is associated with a higher risk of developing this condition, and the examiner concluded the Veteran’s degenerative changes of the shoulders are more likely than not caused by age and his occupational history. Furthermore, medical literature does not support a 39-year gap of a single instance of meningitis as an etiology of tendinopathy of shoulder or DJD of his shoulder, and, if there was a neurological-related deficit presenting itself “due to meningitis,” the examiner noted there is “no documented medical or neurology records to indicate the neurological deficits related to the single episode of meningitis during service or post service and it is unlikely to present 39 years post single episode of meningitis.” As this opinion is based on the entire claim file and medical history, and justified by an adequate rationale supported by medical literature, the Board gives this opinion great probative value. Therefore, service connection on a direct basis is not warranted. As for the secondary service connection theory, the September 2019 examiner opined that the shoulder conditions are less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service connected elbow conditions. The examiner supported this opinion by re-asserting the 2002 diagnosis; the lack of treatment in-service and post-service; the almost four decades long gap in treatment; and the medical literature supporting the Veteran’s occupational history, hobbies, and age as higher risks as noted supra. Additionally, the examiner addressed medical literature noting the service-connected elbow as a risk factor, noting “"the presence of a combination of risk factors produces the highest likelihood that a given person will develop DJD. Having a risk factor for osteoarthritis does not guarantee that the condition will develop.” The examiner notes that although the elbow may have caused “some compensation,” based on the medical literature and individual facts, “[d]egenerative changes of the shoulder joint / tendonitis is more likely than not (greater than 50%) caused by the presence of the combination of risk factors which includes age, and his occupational history for 39 yrs, all of which predispose [the Veteran] to developing degenerative changes / tendonitis of the shoulder joint as seen on x-ray in 2017 at the age of 72 and as noted in literature review.” Additionally, the examiner addressed the aggravation contention, and opined that “[t]he condition claimed is less likely than not (less than 50% probability) aggravated beyond its natural progression by his service-connected condition.” The examiner reasoned that based on medical records, the shoulder disability was established in 2002, and as such, that is the baseline. Although it has increased in severity, it has not been aggravated by the claimed condition for the same reasons already discussed in the secondary service connection contention. The Board notes that the September 2019 VA examiner’s addendum opinions were based on review of the Veteran’s entire claims file, to include the Veteran’s STRs, and medical history. Moreover, the examiner provided a rationale for the opinions rendered that is consistent with other evidence of record, as well as citing to medical literature, and provided an alternative etiology. Accordingly, the VA examiner’s opinion is entitled to great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges the Veteran’s has submitted statements regarding his bilateral shoulder disability and asserting his disability is due to his meningitis in service and/or was caused or aggravated by his service-connected elbow condition. While the Veteran is competent to report symptoms observable to a layperson, such as shoulder pain, the Board need not find a veteran’s lay statements competent to render opinions regarding the etiology of a medical condition such as bilateral shoulder degenerative arthritis/ rotator cuff tendonitis (claimed as bilateral shoulder disability), which requires specialized medical knowledge and equipment to diagnose. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The issue in this case is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Bilateral shoulder disabilities are not necessarily caused by meningitis/elbow conditions, as discussed in detail by the 2019 VA examiner. In addition, the relationship between an elbow condition and a shoulder condition is a complex question, not a simple one, and under the facts of this case, not a question that can be answered by a lay person. As such, the Veteran’s statements to this effect are lacking in probative value. Accordingly, the opinions from the Veteran are not competent medical evidence, and the Board finds the opinions of the September 2019 VA examiner to be significantly more probative than the 2015 nurse’s opinion for the reasons given above. The elements for service connection have not been met, and service connection for residuals of a bilateral shoulder disability on any basis is not warranted, to include as secondary to the service-connected elbow condition. 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 claim, that doctrine is not applicable. 2. Entitlement to service connection for a left knee disability The Veteran contends that he is entitled to service connection for his left knee arthritis condition (claimed as left knee disability), alleged in part, as due to his in-service episode of meningitis. Initially, the Board finds that the Veteran was first diagnosed with arthritis of the left knee in 2017. See January 13, 2017 VA C & P Exam (noting x-ray impression “degenerative changes, left knee”). Further, in January 2019 the Board found that because of the vague terms used by service examiners and the inconsistent evidence as to whether the Veteran experienced any knee injuries prior to service, a pre-existing defect was not noted at service entrance; therefore, the Veteran remains entitled to the presumption of soundness with regard to his left knee. 38 U.S.C. § 1111; see also Doran v. Brown, 6 Vet. App. 283, 286 (1994). Having noted the arthritis diagnosis of his left knee, the Board moves to discussion of whether the provisions relating to presumptive service connection for chronic diseases apply under 38 C.F.R. §§ 3.303 (b), 3.309(a). In this regard, the Board finds that the Veteran’s left knee arthritis was not chronic in service. The service treatment records indicate that the Veteran had a knee issue in the military and was treated in 1964 and 1966. Further, in the July 1966 separation exam, a “trick or locked knee” was noted. However, there is no evidence that the in-service incidents and records specifically affected the left knee. Indeed, the service records, and a June 2017 addendum VA medical opinion, stated the Veteran’s right knee was the one treated in service, and the Veteran has been granted service connection for his right knee based on these findings. For these reasons, the Board finds that symptoms of osteoarthritis of the left knee were not chronic - or factually shown - in service. The Board also finds that the evidence of record does not establish any clinical manifestations of left knee arthritis to a degree of 10 percent or more within the applicable time period. The first evidence on record of left knee arthritis was in 2003, see April 15, 2003 Dickson-Diveley Midwest Orthopaedic clinical record, diagnosing the Veteran with moderate degenerative joint disease (DJD). Applying that start date, the manifestation of left knee osteoarthritis began around 37 years following service separation. As such, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. See 38 C.F.R. § 3.307 (a)(3). Regarding whether service connection may be granted on the basis of continuity of symptomatology in conjunction with 38 C.F.R. § 3.303 (b), there is no evidence of continuous symptoms pertaining to a left knee condition since service separation. The objective evidence of record shows that the Veteran never reported any problems consistent with a knee condition for many years following service separation. He reported experiencing continuous knee symptoms during his January 2017 VA examination, indicating he “had lot of issues with his knees over the years.” For these reasons, the criteria for service connection on the basis of continuity of symptomatology in conjunction with 38 C.F.R. § 3.303 (b) have not been satisfied. Concerning direct service connection, for the reasons that will be set forth below, the Board finds that the Veteran's left knee condition was not related to service. In January 2017, a VA examiner diagnosed the Veteran with degenerative arthritis, and noted the Veteran’s range of motion was abnormal due to DJD. The examiner further noted that it was “not unusual to see degenerative (arthritis) changes in his age group,” but did not provide an opinion on whether his present arthritic condition was related to military or natural aging process. Considering there was no discussion as to whether the Veteran’s current bilateral knee arthritis was in any way associated with his in-service episode of meningitis, the Board finds this examination lacks probative value. In September 2015, a private medical opinion was rendered on behalf of the Veteran. The examiner noted that the Veteran had “a current formal diagnosis of bilateral knee conditions, to include degenerative joint disease,” and the Veteran had in-service treatment for meningitis in 1966. The examiner then noted that “current medical literature supports a nexus between meningitis and later arthritic conditions,” and although unclear whether it is due to septic arthritis or meningococcal infection, could induce “long term Arthritic Conditions, despite cure of the initial meningococcal insult.” Therefore, since the Veteran had a current diagnosis and a previous meningitis history, she opined, “it is at least as likely as not that the veteran’s current arthritis conditions are secondary, related to, and/or aggravated by his service incurred meningitis.” The Board notes this opinion relies on medical literature that is not relevant to the Veteran’s circumstances, as it refers to the effects on children. The second article does reference adults but does not support the theory presented other than a single mention of arthritis. If the examiner presented these articles to purport a general principle, she failed to explain how the principles apply to the Veteran’s medical circumstances. As such, the Board finds this opinion conclusory and inadequately supported and gives it no probative weight. In June 2017, an addendum medical opinion was requested to address direct service connection with the in-service meningitis infection. After a thorough review of the files, the examiner opined that “[t]he claimed Left knee condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness, but by aging process.” The rationale was that the Veteran first reported DJD at 58 years old in 2003. The service treatment records noted no reference to treatment for left knee, and the left knee was not part of meningococcal meningitis or recovery sequels. Although it seems the Board did not notice this opinion was on the record before the prior remand was issued, it finds this opinion probative as it reviewed the Veteran’s record, is based on sound medical principles, and provided alternate etiology. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Pursuant to the Board’s January 2019 remand, in September 2019, the June 2017 VA examiner issued another opinion reconsidering the question of direct service contention in accordance with the remand instructions. However, once again, the examiner opined that “[t]he claimed Left knee condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness.” She stated that “[i]n June 2017, [the] previously given opinion for R knee was positive and for the L knee was negative. It was noted that his knee condition was not related to his Meningitis. Meningitis is serious, but treatable condition that was resolved in 1963. The meningitis does not cause osteoarthritis, but age and injury do. Medical literature does not support etiology of knee condition to be related to meningitis; Therefore, the original given opinion in 2017 has not changed.” The Board notes that both the June 2017 and September 2019 VA examiner’s addendum opinions were based on review of the Veteran’s entire claims file, to include the Veteran’s STRs and medical history. Additionally, the examiner provided a rationale for the opinions rendered that is consistent with other evidence of record, provided an alternative etiology, and noted medical literature did not support the proposed nexus. Accordingly, the VA examiner’s opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, supra. The Board has also considered the Veteran’s statements regarding his belief that his left knee condition was related to his service. The Veteran was competent to report observable symptomatology and to relate a contemporaneous medical diagnosis. See Jandreau, 492 F.3d 1372, 1377; see also Layno, 6 Vet. App. 465 at 469. However, while the Veteran attempted to establish a nexus through his lay assertions, he was not competent to offer opinions as to the etiology of his left knee condition. See Jandreau, 492 F.3d 1372, 1377; see also Kahana, supra. Arthritis is a medically complex condition that requires medical knowledge and training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions. Thus, the Veteran was not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his diagnosis and the relationship to his service. Further, as noted supra, the Board finds the medical opinion provided by the Veteran indicating his left knee condition was related to his in-service to lack probative value. For these reasons, and based on the evidence of record, the Board finds that the most probative evidence is against a finding of relationship between the Veteran’s left knee condition and his service. The Board finds that a preponderance of the evidence is against the claim for service connection for a left knee condition, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.