Citation Nr: 21062967 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-21 180 DATE: October 12, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's bilateral shoulder disabilities began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for a left shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1970 to November 1972 and from February 1974 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014, March 2015, and July 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in May 2019, where, after reopening the claims for service connection for bilateral knee disabilities, all claims were remanded for additional development. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A transcript of the hearing is of record. Service Connection for Bilateral Shoulder Disabilities The Veteran asserts that his current right and left shoulder disabilities are the result of his active duty service. Specifically, the Veteran testified that the combined effects of his duties as a Boatswain and his participation in a weight management program contributed to the development of his shoulder and knee issues. See June 2015 VA Form 9; August 2018 Hearing Transcript. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has current shoulder disabilities, with right shoulder degenerative joint disease with a history of Bankart surgery, and a history of a left shoulder labral tear and tenodesis for which he is status post debridement. Thus, the remaining question is whether the current disabilities are related to service. For the reasons that follow, the Board finds that service connection is not warranted. Service treatment records (STRs) show the Veteran being treated for a bruised right shoulder in December 1971. An October 1975 STR notes treatment for pain and swelling of the left shoulder suggestive of acromioclavicular separation "due to trauma. Diagnostic testing would reveal tendinopathy but no evidence of a rotator cuff tear. The Board notes that the Veteran has consistently reported, including to treatment providers and the undersigned during his hearing, that this injury occurred during a football game. While the Board acknowledges that the Veteran also reported to the undersigned during his hearing that his shoulders continued to cause him trouble in the following years, his remaining STRs through his 1991 separation are negative for further complaints, diagnosis, or treatment related to a shoulder disability, including periodic medical examinations and contemporaneous reports of medical history. As the Veteran reported other ailments during service, such as elbow, knee, and finger injuries, and as shoulder problems are the type that a reasonable person would also report while in the military with access to healthcare, if the Veteran was experiencing additional problems with either shoulder during the remainder of his service the Board would expect that he would have reported these problems to medical professionals. Further, during his final physical examination at separation, evaluation of the upper extremities was normal. In a corresponding report of medical history, while the Veteran did mark "yes" as to having a history of a painful or "trick" shoulder or elbow, the physician's summary section of this report indicates that the Veteran's selection was related to his in-service history of elbow tendonitis, which is noted numerous times in his STRs. If an ongoing history of shoulder pain was present during service beyond 1975, the Board would expect the Veteran would have noted such at the time. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having the history of ongoing shoulder issues that he claimed during his hearing continued to be present after 1975. Post service, a shoulder disability is not shown by medical evidence until a 2008 complaint of shoulder pain to private medical providers, many years after the Veteran's separation from service. Notably, the Veteran presented at a VA examination immediately following service in February 1992 for "multiple medical concerns," including back, elbow, and wrist pain. The Veteran did not, however, note any issues with his shoulders. As a chronic shoulder disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of the Veteran's shoulder disabilities cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he did not report a history of shoulder pain nor was any shoulder disability noted upon physical examination at separation or upon VA examination the following February 1992. The Board finds these earlier records to be more reliable than more recent assertions as they were done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran first presented for a VA examination in February 2015, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. As the Board noted in its May 2019 remand, however, the examiner relied on the relied on the absence of evidence in the Veteran's STRs in providing the negative opinion that the Veterans shoulder disabilities were less likely than not related to his military service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). Further, the Veteran testified that he did not seek out medical attention for every instance of shoulder pain, stating he did not want to be considered a "sick bay commando." See August 2018 Hearing Transcript. As such, the claims were remanded for an additional examination and opinion, which were provided in December 2019. The examiner again interviewed the Veteran, reviewed the pertinent medical history, and performed a physical examination of the Veteran's shoulders. The examiner again opined in the negative, finding it less likely than not that the Veteran's shoulder disabilities are related to his military service. The examiner explained that, while the Veteran did have some periodic shoulder problems in service, his records reflecting any chronic shoulder problems suggests that these problems resolved. Despite his claim of ongoing shoulder problems in service, the examiner continued, his periodic physical examinations and his discharge examination note no shoulder issues, nor do his post-service treatment records note shoulder complaints until 2008, many years after discharge. It is more likely than not, the examiner opined, that his shoulder problems are related to his post-service civilian occupation. The Board finds the above opinions, as a whole, to be highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. The VA medical opinions are also supported by other evidence of record. For example, and while the Board acknowledges the Veteran's assertions that he had continued shoulder problems throughout service, his STRs are absent any complaints of such, including during periodic examinations and in contemporaneous reports of medical history. While the Veteran testified that he did not want to be seen as a "sick bay commando," as the Board has noted above the Veteran nevertheless reported other ailments during service, such as elbow, knee, and finger injuries, both during and outside of his periodic medical examinations when given the opportunity. His VA examination immediately following discharge in February 1992, while noting several other complaints, was also negative for any symptoms of a chronic shoulder disability. The Board has considered the Veteran's statements, to include his assertions that his shoulder disabilities are related to service, to include a football injury in the 1970s. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not, however, competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the Veteran's remaining claims must be remanded for additional development. 1. Service connection for right and left knee disabilities The Veteran seeks service connection for bilateral knee disabilities. His claim has been denied by the RO based on a determination that his disabilities are not directly related to an in-service event, injury, or disease. See 38 C.F.R. § 3.303. Recently, however, the Veteran, through his representative in an August 2021 Appellate Brief, asserted the additional theory of entitlement that his knee disabilities were caused or aggravated by his service-connected lumbar spine disability. See 38 C.F.R. § 3.310. While medical opinions of records have addressed the Veteran's claim on a direct service connection basis, no examiner has opined as to the etiology of the Veteran's knee disabilities on a secondary basis. The Board notes that the Veteran has not elaborated on how he believes his lumbar spine disability is related to his knee disabilities. However, in providing a negative opinion as to the etiology of the Veteran's knee disabilities, a VA examiner in December 2019 suggested that the Veteran's obesity may have been a factor. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service event for service connection purposes, obesity may indeed serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese, (2) the obesity was a substantial factor is causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities. Id. Thus, a VA examiner's addendum opinion should be obtained that addresses whether the Veteran's bilateral knee disabilities were caused or aggravated by his lumbar spine disability, to include addressing any interplay between the Veteran's lumbar spine disability, obesity, and his knee disabilities. 2. Entitlement to a TDIU The issue of entitlement to a TDIU is inextricably intertwined the above service connection claims. As such, appellate consideration of entitlement to a TDIU must be deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current knee disability was (a) caused, or (b) aggravated (i.e., worsened beyond natural progression), by his service-connected lumbar spine disability. The examiner should address (a) whether the Veteran's service-connected lumbar spine disability caused the Veteran to become obese or aggravated the Veteran's obesity, and if so, (b) whether the obesity or aggravation of obesity resulting from the lumbar spine disability was a substantial factor in causing any of the Veteran's knee disabilities such that they would not have occurred but for the obesity. The need for an additional physical examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, to include the claim for entitlement to a TDIU, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.