Citation Nr: 21061804 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-02 040 DATE: October 5, 2021 ORDER Entitlement to service connection for dizziness or vertigo is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for residuals of shrapnel wounds is denied. FINDINGS OF FACT 1. The Veteran's dizziness is causally related to the Veteran's service-connected diabetic neuropathy and his service-connected cardiovascular disabilities. 2. The preponderance of the evidence indicates that the Veteran's right shoulder disability did not manifest during service and is not causally or etiologically related to service. 3. The preponderance of the evidence indicates that the Veteran's left knee disability did not manifest during service and is not causally or etiologically related to service 4. The preponderance of the evidence indicates that the Veteran's in-service shrapnel wounds did not result in any current scarring or other disability present during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for dizziness as secondary to the Veteran's service-connected cardiovascular disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a residuals of shrapnel wounds have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues for further development in November 2018 and July 2020. The claims have been returned to the Board for appellate review. The Board notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the Veteran has not submitted a claim for his diabetes mellitus. The Board unfortunately has no jurisdiction over this issue at this time. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). 1. Entitlement to service connection for dizziness or vertigo. The Veteran contends that he has dizziness or vertigo that is causally related to his active service or to a service-connected disability. The Veteran's treatment records show recurrent dizzy spells. In September 2020, VA treatment records show that the Veteran was seen by neurology to address his gait and balance issues, as well as his dizziness and vertigo. The examiner noted that the Veteran's issues were thought to be multifactorial, to include as due to his diabetic neuropathy. Additionally, the October 2019 VA examiner indicated that the Veteran's dizziness was a symptom of the Veteran's service-connected coronary artery disease (CAD) or hypertension. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current complaints of dizziness are proximately due to his cardiovascular disabilities. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for dizziness is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right shoulder disability. The Veteran contends that he has a right shoulder disability that is causally related to his active service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of right shoulder degenerative joint disease (DJD), the preponderance of the evidence weighs against finding that the Veteran's diagnosis of right shoulder DJD began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show no complaints, treatment, or diagnosis of a right shoulder disability. The Veteran was afforded a VA examination in August 2013. The examiner noted that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Claims file review of service treatment records including exit exam and history were negative for a report of any shoulder condition. After the military, in 2003, he reported bilateral shoulder pain to his primary care provider. X-rays revealed arthritis in the bilateral shoulders which was a span of 36 years since his inservice time; shrapnel to the face and neck cannot logically cause arthritis to the shoulders unless there were evidence of shrapnel scars or evidence of shrapnel to the shoulders. He does not have any scars of his shoulders nor has he had any evidence of shrapnel on multiple X-ray and right shoulder MRI. His diagnosis is advanced DJD, which is due to age-related conditions (his bilateral DJD was found at the age of 57). Without other evidence, the examined must conclude that it is related to age-related conditions. The VA obtained a nexus opinion in April 2020. The examiner found that the Veteran's right shoulder condition was less likely than not incurred in or due to infantry military occupational tasks such as carrying load-bearing equipment, weapons, and packs while marching, which occurred during his active military service. The Veteran's bilateral shoulder imaging diagnoses are at least as likely as not caused by the natural aging process. No objective medical record or reputable medical literature evidence to indicate otherwise was found. Strain is not the same as and neither does it cause or progress to the current diagnosis. No objective medical record evidence to indicate that the Veteran's claimed in-service injury, event, or illness to include infantry military occupational tasks such as carrying load-bearing equipment, weapons, and packs while marching, did not resolve without residual was found. The separation report of medical history and examination were normal. No immediate objective post-service medical record evidence to indicate treatment for chronic ongoing shoulder pain, condition, or pathology was found. The Veteran's greatest risk factor for his diagnosis is his age and not the claimed in-service injury, event, or illness. The Veteran was afforded another VA examination in March 2021. The examiner again noted that the claimed condition was less likely than not incurred in or caused by the clamed in-service injury, event, or illness. The examiner noted no documentation of the Veteran being treated for a right shoulder condition while in the military. He concluded that the Veteran' right shoulder gout and DJD were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiners' opinions were probative, because they were based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his right shoulder disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a right shoulder disability. As the preponderance of the evidence is against the claim for service connection for a right shoulder disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left knee disability. The Veteran contends that he has a left knee disability that is causally related to his active service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of total knee replacement due to DJD of the knee, the preponderance of the evidence weighs against finding that the Veteran's diagnosed left knee disability began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show no complaints, treatment, or diagnosis of a left knee disability. The Veteran was afforded a VA examination in August 2013. The examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. A claims file review showed no complaint of left knee pain. Exit examination and history was negative for a report of any knee condition. After the military, the Veteran reported bilateral knee pain in 2003 to his primary care provider. X-rays revealed arthritis in the bilateral knees, which was a span of 36 years after service. The Veteran's arthritis is due to age related conditions (his bilateral arthritis was found at the age of 57). Without other evidence, the examiner must conclude that his knee disability is related to age-related conditions. The VA obtained a nexus opinion in April 2020. The Veteran's left knee total knee arthroplasty (TKA) is less likely than not incurred in or caused by the claimed in-service injury, event, or illness to include infantry military occupational tasks such as carrying load-bearing equipment, weapons, and packs while marching which occurred in 1966 to 1968. The Veteran's left knee disability is at least as likely as not caused by DJD due to the natural aging process. The examiner noted no nexus between the Veteran's claimed in-service injury, event, or illness, and his knee disability. No objective medical record or reputable medical literature evidence to indicate otherwise was found. Strain is not the same as and neither does it cause or progress to the Veteran's DJD and TKA. The Veteran's left knee DJD and or TKA diagnoses were not found in service. Nevertheless, no objective medical record evidence to indicate that the Veteran's claimed in-service injury, event, or illness, did not resolve without residual was found. The Veteran specifically noted no complaints regarding the knee on his separation report of medical history and his separation examination showed a normal lower extremity. No immediate objective post-service medical record evidence to indicate treatment for chronic ongoing knee pain, condition, or pathology was found. The Veteran's greatest risk factor for his left knee DJD and TKA is his age and not the claimed in-service injury, event, or illness to include infantry military occupational tasks. The Veteran was afforded another VA examination in March 2021. The examiner again noted that the claimed condition was less likely than not incurred in or caused by the clamed in-service injury, event, or illness. The examiner found that the majority of evidence does not suggest a nexus link between the Veteran's left knee DJD and his military service. The examiner noted no documentation of him being treated for a left knee condition while in the military. The examiners' opinions were probative, because they were based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his left knee disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left knee disability. As the preponderance of the evidence is against the claim for service connection for a left knee disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for residuals of shrapnel wounds. The Veteran contends that he has residuals of shrapnel wounds incurred during active service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have current residuals of his shrapnel wounds and has not had any at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was afforded a VA examination in August 2013. At that time, the Veteran reported shrapnel wounds of the face and neck. The examiner noted that a letter dated May 29, 1967 stated that the went through a hail of shrapnel to help his comrades in Vietnam, however, the examiner found no record of any shrapnel removal or treatment in the service treatment records. Furthermore, the Veteran stated that he only received shrapnel to his face and neck. The examiner noted no definite shrapnel scars of the face or neck and none of the bilateral shoulders. He also found no evidence of shrapnel visible by X-ray. The Veteran did not have any scars of his shoulders nor has he had any evidence of shrapnel on multiple X-ray and right shoulder MRI. In March 2021, a VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted no visible scars to the Veteran's face during the examination or evidence of shrapnel to his face and neck. Therefore, the residuals of a shrapnel wound with scar are less likely than not incurred in or caused by his service in Vietnam. The examiner found no evidence of shrapnel wounds or care for shrapnel except for personnel records. The Veteran self-stated that he did have shrapnel on his face and neck. The shrapnel was superficial, and the medic dug it out on the field. He stated that he did not go see any other doctors regarding shrapnel. In April 2021, the Veteran was afforded a VA examination for scars and disfigurement. The examiner diagnosed only a scar of the right knee, residuals of shrapnel wound. The Veteran is currently service-connected for scar of the right knee. As such, the Veteran had no other scars noted related to residuals of shrapnel wounds. The Veteran has not specified any specific residuals of his shrapnel wounds. The medical records show no complaint, treatment, or diagnosis related to shrapnel wounds during the period on appeal. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had shrapnel wounds in service; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does not have any current residuals of shrapnel wounds. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). (Continued on the next page) Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for residuals of shrapnel wounds. As the preponderance of the evidence is against the claim for service connection for residuals of shrapnel wounds, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.