Citation Nr: 21000133 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-51 804 DATE: January 4, 2021 ORDER The claim of entitlement to service connection for a lumbar spine disorder is denied. The claim of entitlement to service connection for a left shoulder disorder is denied. The claim of entitlement to service connection for a right shoulder disorder is denied. The claim of entitlement to service connection for a left elbow disorder is denied. The claim of entitlement to service connection for a right elbow disorder is denied. The claim of entitlement to service connection for a left hip disorder is denied. The claim of entitlement to service connection for a right hip disorder is denied. The claim of entitlement to service connection for a right knee disorder is denied. The claim of entitlement to service connection for a left ankle disorder is denied. The claim of entitlement to service connection for a right ankle disorder is denied. The claim of entitlement to service connection for a left foot disorder is denied. The claim of entitlement to service connection for a right foot disorder is denied. The claim of entitlement to service connection for hypertension is denied. The claim of entitlement to service connection for a thyroid disorder is denied. The claim of entitlement to service connection for a prostate disorder is denied. REMANDED The claim of entitlement to special monthly compensation (SMC) based on a need for aid and attendance is remanded. The claim of entitlement to SMC based on a need for housebound status is remanded. The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 2. A left shoulder disorder has not been present during the period of the claim. 3. A right shoulder disorder has not been present during the period of the claim. 4. A left elbow disorder has not been present during the period of the claim. 5. A right elbow disorder has not been present during the period of the claim. 6. The Veteran’s left hip disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 7. The Veteran’s right hip disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 8. A right knee disorder has not been present during the period of the claim. 9. A left ankle disorder has not been present during the period of the claim. 10. A right ankle disorder has not been present during the period of the claim. 11. The Veteran’s left foot disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 12. The Veteran’s right foot disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 13. The Veteran’s hypertension did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 14. The Veteran’s prostate disorder did not originate in service and is not otherwise etiologically related to service. 15. The Veteran’s thyroid disorder did not originate in service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for establishing entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for establishing entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for establishing entitlement to service connection for a left elbow disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for establishing entitlement to service connection for a right elbow disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for establishing entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 7. The criteria for establishing entitlement to service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 8. The criteria for establishing entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 9. The criteria for establishing entitlement to service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 10. The criteria for establishing entitlement to service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 11. The criteria for establishing entitlement to service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 12. The criteria for establishing entitlement to service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 13. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 14. The criteria for establishing entitlement to service connection for a prostate disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 15. The criteria for establishing entitlement to service connection for a thyroid disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from August 1953 to August 1955. In March 2019, the Board remanded the case for additional development. Following the April 2020 supplemental statement of the case (SSOC), the Veteran opted into the Appeals Modernization Act (AMA) by submitted a VA Form 10182 as to the issues of entitlement to service connection for bilateral hearing loss, a respiratory disorder, a cervical spine disorder, a left knee disorder, an eye disorder, and rhinitis, withdrawing the pendency legacy appeal as to those issues. Therefore, such matters will be addressed in a separate AMA decision by the Board. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board finds there has been substantial compliance with its March 2019 remand directives. This claim was remanded to obtain VA examinations and opinions. The examinations and medical opinions were completed in September 2019. Accordingly, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied, “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 1. The claim of entitlement to service connection for a lumbar spine disorder is denied. Please see discussion in paragraph 15. 2. The claim of entitlement to service connection for a left shoulder disorder is denied. Please see discussion in paragraph 15. 3. The claim of entitlement to service connection for a right shoulder disorder is denied. Please see discussion in paragraph 15. 4. The claim of entitlement to service connection for a left elbow disorder is denied. Please see discussion in paragraph 15. 5. The claim of entitlement to service connection for a right elbow disorder is denied. Please see discussion in paragraph 15. 6. The claim of entitlement to service connection for a left hip disorder is denied. Please see discussion in paragraph 15. 7. The claim of entitlement to service connection for a right hip disorder is denied. Please see discussion in paragraph 15. 8. The claim of entitlement to service connection for a right knee disorder is denied. Please see discussion in paragraph 15. 9. The claim of entitlement to service connection for a left ankle disorder is denied. Please see discussion in paragraph 15. 10. The claim of entitlement to service connection for a right ankle disorder is denied. Please see discussion in paragraph 15. 11. The claim of entitlement to service connection for a left foot disorder is denied. Please see discussion in paragraph 15. 12. The claim of entitlement to service connection for a right foot disorder is denied. Please see discussion in paragraph 15. 13. The claim of entitlement to service connection for hypertension is denied. Please see discussion in paragraph 15. 14. The claim of entitlement to service connection for a thyroid disorder is denied. Please see discussion in paragraph 15. 15. The claim of entitlement to service connection for a prostate disorder is denied. The Veteran seeks service connection for a lumbar spine disorder, a bilateral shoulder disorder, a bilateral elbow disorder, a bilateral hip disorder, a right knee disorder, a bilateral ankle disorder, a bilateral foot disorder, hypertension, a thyroid disorder, and a prostate disorder. The Veteran’s service treatment records are silent as to any complaints, treatment, or diagnoses related to the claimed disorders. Post-service treatment records include VA treatment records and a May 2017 private medical record completed by C.M., M.D. A May 2012 VA treatment record noted diagnoses of hypertension and hypothyroidism. A June 2012 VA treatment record noted an enlarged prostate. A March 2013 VA primary care note showed that he was treated for benign prostatic hyperplasia. The May 2017 private medical record noted that the Veteran presented with high back pain with stiffness, numbness, tingling, sensory loss, cramps, and weakness of the cervical spine with radiation to the shoulders and elbows. Dr. M. also noted low back pain with lumbar spine muscle stiffness, numbness, tingling, sensory loss, cramps, weakness, and instability radiating to the hips, knees, and ankles. The Veteran reported multiple urinary symptoms, such as dysuria, urgency, and recurrent urinary tract infections. Dr. M. provided almost thirty diagnoses for the Veteran, including degenerative joint disease of the shoulders, elbows, hips, knees, ankles and feet, as well as chronic myositis of the lumbar muscles, hypothyroidism, and benign prostate hyperplasia. Dr. M. opined that the Veteran’s disorders were more probable than not secondary to his military service performance. The Veteran underwent multiple VA examinations in September 2019. With respect to the lumbar spine and hips, the examiner confirmed diagnoses of lumbar spondylosis and degenerative disc disease of the lumbar spine since 2015, as well as degenerative arthritis of the hips since 2017. The Veteran reported a fall that occurred eight years prior that resulted in severe lumbar spine and bilateral hip pain. The examiner opined that the Veteran’s lumbar spine and bilateral hip disorders were less likely than not incurred in or caused by service. In support of the opinion, the examiner explained that the lumbar spine and bilateral hip disorders were caused by normal progression of the aging process. The examiner noted the Veteran’s report that he fell in his backyard eight years prior with resultant pain at the lumbar and bilateral hip areas. The VA examiner considered the favorable private medical opinion and noted that Dr. M. did not write a complete musculoskeletal exam to support his opinion. Another VA examiner completed the Veteran’s shoulder examination. The examiner concluded that the Veteran did not have a shoulder disorder. The examination report showed that the Veteran denied shoulder pain and stated that he had neck pain. The physical examination revealed normal range of motion, no pain, and full muscle strength. The examiner also noted that the Veteran’s report of no shoulder pain correlated with the negative examination for a bilateral shoulder disorder. Based on the above, the examiner did not render an etiological opinion as to the claimed bilateral shoulder disorder. Another VA examiner completed the Veteran’s knee and elbow examinations. The Veteran denied functional loss, complaints, or pain regarding the right knee. He also denied any injury, event, trauma, treatment, complaints, and functional loss related to the elbows. The physical examination of the right knee and bilateral elbows revealed full range of motion, no pain, and full muscle strength. The VA examiner acknowledged Dr. M.’s findings of degenerative joint disease of the knees and elbows and found that the private report lacked clinical and objective evidence such as a physical examination and imaging studies to support the diagnoses. Moreover, the Veteran’s service treatment records were silent as to an injury or a complaint regarding the elbows and right knee. The VA examiner concluded that the Veteran did not have any pathology identified for his elbows and right knee. Another VA examiner completed the Veteran ankle and feet examinations. The VA examiner found that the Veteran did not have an ankle disorder and confirmed a diagnosis of degenerative joint disease of the feet from 2019. The VA examiner questioned the Veteran about past and present foot or ankle complaints, as well as whether he had any injury or condition of the feet or ankles. The Veteran denied any past injuries or conditions of the feet or ankle and did not have any complaints. He did not recall any injuries to his feet or ankles during service and denied twisting injuries or fractures to his feet or ankles. The physical examination of the ankles revealed normal range of motion, no pain, and full muscle strength. The Veteran denied feet pain. September 2019 x-rays of the ankle and feet showed mild osteopenia of the ankle joints and feet, enthesopathic changes at the calcaneal bone of the ankle, enthesopathic changes and calcification of the Achilles tendons, and arthropathic changes of the feet suggesting secondary degenerative joint disease. The VA examiner concluded that the physical examinations of the ankles and feet were unremarkable. The VA examiner provided opinions against the claims. The VA examiner reviewed the Veteran’s service treatment records and post-service medical records, including the private medical opinion. It was noted that Dr. M. did not support his/her findings with a medical evaluation, diagnostic studies, or specific complaints of the feet or ankles. Dr. M. also did not mention what service treatment records showed a musculoskeletal disorder. It was also noted that there was no evidence of any injury, condition, or complaint of the feet or ankles in the service treatment records. The Veteran’s feet and ankles were marked as normal on his September 1955 separation examination. Moreover, the Veteran was asked multiple times and given ample time to recall a foot or ankle injury during or after service, but he consistently denied any. The VA examiner also found that the Veteran’s feet degenerative joint disease was consistent with the natural aging process. Furthermore, the Veteran did not have any foot or ankle complaints and reported no injuries to his feet or ankles during his military service or after. Another VA examiner conducted the Veteran’s September 2019 thyroid examination. The VA examiner confirmed a diagnosis of hypothyroidism, first diagnosed in 2004 as per the Veteran. The Veteran denied thyroid problems during service. The VA examiner opined that the claimed disorder was less likely than not incurred in or caused by service. The rationale was that the service treatment records did not show that the Veteran had a thyroid disorder during service, or any sign or symptoms related to a thyroid disorder. Moreover, the Veteran denied that he had a thyroid problem and indicated that the disorder was diagnosed almost 50 years after his discharge from service. The VA examiner addressed Dr. M.’s report and noted that it only noted that the Veteran was under treatment for hypothyroidism. Another VA examiner conducted the Veteran’s September 2019 prostate examination. The VA examiner confirmed a diagnosis of benign prostatic hypertrophy since 2012. The Veteran reported that his prostate problems started several years ago. The VA examiner opined that the disorder was less likely than not incurred in or caused by service. The VA examiner reviewed all of the available medical records and concluded that there was no evidence of a diagnosis of any chronic prostate disorder, including benign prostatic hypertrophy, in the Veteran’s service treatment records, nor within a year of the Veteran’s separation from service. It was noted that the Veteran’s urinary complaints and diagnosis of an enlarged prostate occurred more than 50 years after the Veteran separated from service. Another VA examiner conducted the Veteran’s hypertension examination. The VA examiner confirmed that the Veteran initially received a diagnosis of hypertension in 2011. It was noted that the Veteran’s blood pressure was 110/84 at the time of his separation from service. The Veteran reported that he was found to have a diagnosis of hypertension is 2011. The VA examiner opined that the Veteran’s hypertension was less likely than not related to service. The rationale was that the available service treatment records and VA treatment records did not show any signs, symptoms, complaints, diagnosis, treatment, or any chronic disability pattern regarding hypertension during service or within a year of separation from service. Moreover, the Veteran stated that he received a diagnosis of hypertension in 2011. Therefore, the Veteran’s hypertension developed many years after service. The VA examiner noted Dr. M.’s private report and noted that Dr. M. did not state that the Veteran had high blood pressure during active service. Upon consideration of the evidence above, the Board finds that the preponderance of the evidence is against service connection for a lumbar spine disorder, a bilateral shoulder disorder, a bilateral elbow disorder, a bilateral hip disorder, a right knee disorder, a bilateral ankle disorder, a bilateral foot disorder, hypertension, a thyroid disorder, and a prostate disorder. Significantly the medical evidence shows diagnoses of a lumbar spine disorder in 2015, a bilateral hip disorder 2017, a bilateral foot disorder in 2019, hypertension in 2011, a prostate disorder in 2012, and a thyroid disorder in 2004. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The Board acknowledges Dr. M.’s opinion that the Veteran’s disorders were more probable than not secondary to his military service performance. The Board finds that the medical opinion is inadequate as it was not supported by any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from sound reasoning). The Board affords significant probative value to the opinions provided by the September 2019 VA medical examiners. The medical opinions were supported by adequate rationale, included a thorough review of the evidence, and addressed the conflicting medical opinion of record. Additionally, the preponderance of the evidence demonstrates that the Veteran has not had a bilateral shoulder disorder, bilateral elbow disorder, right knee disorder, or bilateral ankle disorder at any point during the period of the claim, or, an associated condition with symptoms resulting in functional impairment. The Board acknowledges Dr. M.’s May 2017 report that the Veteran had various diagnoses including degenerative joint disease of the shoulders, elbows, right knee, and bilateral ankle. However, as discussed by the VA examiners, Dr. M. did not support his diagnoses with objective evidence. Moreover, the September 2019 VA examination reports show that the Veteran denied pain and functional loss of the shoulders, elbows, right knee, and bilateral ankle. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability.) Accordingly, the Board finds that the weight of the evidence does not establish a diagnosis of a bilateral shoulder disorder, bilateral elbow disorder, right knee disorder, or bilateral ankle disorder at any time during the period on appeal. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty or on the basis of continuity of symptomology is not warranted in this case. The evidence demonstrates that the Veteran’s lumbar spine disorder, bilateral hip disorder, bilateral foot disorder, and hypertension were diagnosed more than one year after the Veteran’s discharge from service. 38 C.F.R. § 3.307 (a). Moreover, any allegation of a continuity of lumbar spine, bilateral hip, bilateral foot, and hypertension symptomatology since service is inconsistent with the evidence of record. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for his lumbar spine disorder, bilateral hip disorder, bilateral foot disorder, and hypertension. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. Therefore, service connection for a lumbar spine disorder, a bilateral shoulder disorder, a bilateral elbow disorder, a bilateral hip disorder, a right knee disorder, a bilateral ankle disorder, a bilateral foot disorder, hypertension, a thyroid disorder, and a prostate disorder is denied. REASONS FOR REMAND 1. The claim of entitlement to SMC based on a need for aid and attendance is remanded. Please see discussion in paragraph 4. 2. The claim of entitlement to SMC based on a need for housebound status is remanded. Please see discussion in paragraph 4. 3. The claim of entitlement to service connection for tinnitus is remanded. Please see discussion in paragraph 4. 4. The claim of entitlement to a TDIU is remanded. As discussed above, the issues of entitlement to service connection for bilateral hearing loss, a respiratory disorder, a cervical spine disorder, a left knee disorder, an eye disorder, and rhinitis will be the subject of a separate Board decision. The Veteran’s claim of entitlement to service connection for tinnitus is intertwined with the issue of entitlement to service connection for bilateral hearing loss. The issues of entitlement to SMC based on a need of aid and attendance, SMC based on a need for housebound status, and TDIU are intertwined with the issues of entitlement to service connection for bilateral hearing loss, a respiratory disorder, a cervical spine disorder, a left knee disorder, an eye disorder, and rhinitis. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claims of entitlement to SMC based on a need of aid and attendance, SMC based on a need for housebound status, tinnitus, and TDIU must be deferred. The matters are REMANDED for the following action: Following a final disposition of the Veteran’s appeal regarding the issue of entitlement to service connection for bilateral hearing loss, the RO or the AMC should readjudicate the issue of entitlement to service connection for tinnitus. Following a final disposition of the Veteran’s appeal regarding the issues of entitlement to service connection for bilateral hearing loss, a respiratory disorder, a cervical spine disorder, a left knee disorder, an eye disorder, and rhinitis, the RO or the AMC should readjudicate the issues of entitlement to SMC based on a need of aid and attendance, SMC based on a need for housebound status, and TDIU. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, 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.