Citation Nr: 21003564 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-18 784 DATE: January 22, 2021 ORDER 1. Entitlement to service connection for a left shoulder disability is denied. 2. Entitlement to service connection for a right shoulder disability is denied. 3. Entitlement to service connection for a left knee disability is denied. 4. Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The preponderance of the evidence shows that left and right shoulder as well as left and right knee disabilities were not present in service or until many years thereafter, are not caused by an injury while serving with a Reserve Component, and they are not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for left and right shoulder as well as left and right knee disabilities have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1970 to December 1971. The Veteran also had a subsequent period of service with a Reserve Component. In October 2018 a Veterans’ Law Judge other than the undersigned issued a Board of Veterans’ Appeal (Board) decision that denied the Veteran’s appeal. The Veteran appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 memorandum decision, the Court vacated and remanded the October 2018 Board decision. In April 2019 the Board remanded the appeal. In this regard, the Board finds that the post-Remand development complied with the April 2019 Remand. The Board has reached this conclusion because the record shows that the Veteran was provided VA examinations in November 2020 and those examiners provided diagnoses and opinions based on the record and controlling scientific and medical evidence as to the diagnoses and etiology of the left and right shoulder as well as left and right knee disabilities taking into account, among other things, the in-service records and the post-service records, including Dr. Zaroh Neth’s August 2014 opinion, as well as the Veteran’s lay claims regarding observable symptomatology. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Service Connection Claims The Veteran claims, in substance, that his current left and right shoulder as well as left and right knee disabilities are due to his military service to include as a result of a 1971 motor vehicle accident when he was thrown from a moving truck, about 50 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability 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.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the record shows the Veteran being diagnosed with left and right shoulder strain as well as right shoulder impingement syndrome, rotator cuff tendonitis, and arthritis as well as left and right knee arthritis and right knee strain and posterior cruciate ligament tear. See, e.g., VA examinations dated in November 2020. Next, the Board notes that service treatment records document the Veteran’s complaints or treatment following an October 1971 motor vehicle accident, a half a century ago. The Boards finds that the Veteran and his fellow soldiers are competent to report on the events they experienced and/or witnessed while on active duty like the appellant be thrown from a truck while in a motor vehicle accident and the appellant is competent to report on manifestations of his disabilities, such as (for example) shoulder and knee pain. See Davidson, supra. However, service records, including the those surrounding the October 1971 motor vehicle accident and the November 1971 examination, are otherwise negative for injuries, complaints of symptoms, and/or diagnoses left and right shoulder as well as left and right knee disabilities while on active duty or an injury while serving with a Reserve Component. In fact, while the medical records surrounding the October 1971 motor vehicle accident note that the Veteran had a laceration, they are negative for complaints, diagnoses, or treatment for left and right shoulder as well as left and right knee injuries or disabilities and his AP and elbow x-ray was negative. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Similarly, at the November 1971 examination one month after the October 1971 motor vehicle accident, the Veteran’s denied having a history of a painful or trick shoulder and a trick or locked knee and the examiner opined his upper and lower extremities examinations were normal. At this point, it is important for the Veteran to understand that he himself, at this point, provides highly probative factual evidence against these claims. The Board cannot ignore the fact that the Veteran himself failed to indicate a problem associated with the accident regarding these disabilities. The Board finds that the best evidence in this case does not support a finding that the Veteran injured his shoulders and knees during the accident in question. The Veteran’s recollection of events from 50 years ago, based on his prior statements, is found to be in error. In any event, even if the Board were to assume, notwithstanding the Veteran’s own prior statements, that he did, in fact, injure his shoulders and knees during this accident 50 years ago, the Board also finds, as the separation examiner must have found, that the most probative evidence of record shows that any problem the Veteran may have had with his shoulders and/or knees due to his October 1971 motor vehicle accident was, at best, transient in nature and resolved by the time he was examined in November 1971 and separated from this period of active duty service in December 1971. See Owens, supra. This finding is supported by the Veteran’s own prior statements, as noted above. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not develop left and right shoulder as well as left and right knee disabilities while on active duty despite the documented motor vehicle accident or left and right shoulder and knee disabilities due to an injury while serving with a Reserve Component. 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(a); Colvin, supra. In this regard, the Board must note that as the November 1971 examination shows that even the Veteran did not think he had left and right shoulder as well as left and right knee disabilities at the time he was examined just one month before he separated from service. As to service connection for left and right shoulder as well as left and right knee disabilities based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show that arthritis in any of these joints manifest in the first year following his separation from a period of active duty service. Therefore, the Board finds that these presumptions do not help the Veteran establish service connection for left and right shoulder as well as left and right knee disabilities. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will again consider whether the Veteran is entitled to service connection for left and right shoulder as well as left and right knee disabilities due to continuity of symptomatology under 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). In this regard, and as noted above, at the November 1971 examination the Veteran denied having a history of a painful or trick shoulder and a trick or locked knee and the examiner opined his upper and lower extremities examinations were normal. See Colvin, supra. Likewise, and more important than the above, the post-service record is negative for complaints, diagnoses, or treatment for the left shoulder until 2020 (see VA examination dated in November 2020), right shoulder until 2008 (see Dr. Kevin Harvey treatment records dated in February 2004), right knee until 2013 (see VA examination dated in June 2013), and left knee until 2014 (see Dr. Neth treatment records dated in October 2014); at least 30 plus years after his 1971 separation from active duty and almost a decade after his last period of Reserve Component service. Id. In this regard, the Board finds of particular significance the fact that Reserve Component examinations dated in October 1976, November 1981, September 1985, August 1989, and July 1995, covering a period of more than 20 years after the Veteran’s 1971 separation for active duty, the Veteran again specifically denied having a history of a painful or trick shoulder and a trick or locked knee and the examiners opined his upper and lower extremities examinations were normal despite the appellant in October 1976 also reporting that he had a history of a dislocated shoulder in May 1976 (i.e., not while on active duty, ACDUTRA, or INACDUTRA) with no recurrence or complication. See Colvin, supra. Once again, it is important for the Veteran to understand that notwithstanding any current claims that he has had shoulder and knee disabilities in, and since, his active duty service in 1971, he himself in these examinations provides highly probative evidence against his claims because not only did these examinations not diagnose any of the claimed disabilities but the appellant himself did not think he had them at the time of these examinations. See Owens, supra. We cannot ignore the Veteran’s own prior statements. While the Board is certain that the Veteran believes that his left and right shoulder as well as left and right knee disabilities started while on active duty 50 years ago in 1971 and continued to the current time, the Board nonetheless finds such claims incredulous given the July 1971 service examination, the October 1976, November 1981, September 1985, August 1989, and July 1995 Reserve Component examinations which found his upper and lower extremities to be normal, and the first problems with any of his disabilities not appearing in the record until 2008 (see Dr. Harvey treatment records dated in February 2004); at least 30 plus years after his 1971 separation from active duty and almost a decade after his last period of Reserve Component service. Id. The Veteran’s statements and recollections of events from so many years ago are simply not accurate based on the evidence, including the Veteran’s own prior statements (as noted above). The Board also finds it significant that the post-service record shows the Veteran was employed as a brick layer and the June 2013 VA examiner opinion that his left and right shoulder and right knee disabilities are due to his being a brick layer as well as the normal aging process. Clearly, not only do the facts of this case provide exceedingly probative evidence against these claims, the best medical opinion evidence provides evidence against this case. At this point, the Board finds that the service medical records, Reserve Component examinations, the post-active duty medical records, and the June 2013 VA examiner provide the most probative evidence of record and it is against finding continuity of symptomatology. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with left and right shoulder and left and right knee disabilities in and since his 1971 motor vehicle accident during his active duty service 50 years ago despite the claims to the contrary. See 38 U.S.C. § 101, 106, 1110; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran’s post-service left and right shoulder and left and right knee disabilities are not due to his military service. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, and as noted by the Court’s October 2019 memorandum decision, Dr. Neth in August 2014 provided a favorable medical evidence when he opined that “[o]ne cannot say exactly how long this condition existed prior to the date of diagnosis of definitively state it cause. However, it is as likely as not the [the Veteran’s] inservice motor vehicle accident contributed to cause his right shoulder, left shoulder, right knee, left knee …conditions.” The Board finds that Dr. Neth’s August 2014 opinion lacks a great deal of probative value because it merely stated a conclusion regarding the etiology of the left and right shoulder and left and right knee disabilities without any rationale and explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). The facts of this case, and the Veteran’s own prior statements, do not support this curious conclusion. There is simply nothing this health care provider cites that would support the conclusion that an accident 50 years ago contributed to cause his right shoulder, left shoulder, right knee, and left knee decades after service following a long career of brick laying (which would, to a lay observer, be the most obvious cause of the Veteran’s current problems). It is important for the note that the Board finds that the facts of this precise case, when reviewed closely, provide significant evidence against these claims. On the other hand, the June 2013 and/or November 2020 VA examiners opined that his left and right shoulder and/or left and right knee disabilities are not due to his military service. Moreover, the Board finds these opinions the most probative evidence of record because, unlike Dr. Neth’s opinion, they were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by ciation to evidence found in the record. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). The Board also finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current left and right shoulder and left and right knee disabilities). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for left and right shoulder and left and right knee disabilities. 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.