Citation Nr: 21063257 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-45 799 DATE: October 13, 2021 ORDER Entitlement to service connection for right knee disorder, diagnosed as chronic chondromalacia in the right knee, is granted. Entitlement to service connection for left shoulder disorder, diagnosed as recurrent strain of the trapezius, is granted. REMANDED Entitlement to service connection for right hip disorder is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's right knee disorder was incurred during her active duty military service. 2. Resolving all doubt in the Veteran's favor, the Veteran's left shoulder disorder was incurred during her active duty military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disorder have been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left shoulder disorder have been met. 38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to January 2008 and from February 2010 to December 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. These matters were previously remanded by the Board in March 2019 for further development, including obtaining clarifying medical opinions with regards to current diagnoses, and have now been returned to the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where a Veteran served for at least 90 days during a period of war or after December 31,1946, and manifests certain chronic diseases, like arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker, 708 F.3d 1331. Arthritis and hypertension are considered chronic diseases under 38 C.F.R. § 3.309(a). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. 38 U.S.C. § 1154(a). Lay evidence can be considered competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Right Knee Disorder 2. Left Shoulder Disorder The Veteran contends that her right knee and left shoulder disorders are related to her active duty military service and reports of ongoing pain stemming from her in-service documented treatment for knee, hip, and shoulder problems. See, June 2017 Knee and Lower Leg Conditions Disability Benefits Questionnaire. With regard to current diagnoses, the evidence of record reflects conflicting reports. During a July 2017 VA examination, the examiner reported that the Veteran has no diagnoses of a right knee disorder and of a left shoulder disorder. However, following a physical examination, also referencing prior 2015 diagnoses, a December 2017 private medical examiner made findings of current diagnoses of chronic chondromalacia in the right knee and recurrent trapezius strain of the left shoulder. The Board also notes that notwithstanding the July 2017 VA examiner's "no diagnosis" finding, he also referenced a left shoulder intermittent trapezius muscle strain (same diagnostic finding of the December 2017 private examiner), citing to the Veteran's subjective history. Furthermore, although the subsequent July 2020 addendum VA examiner's report also reflects findings of no current diagnoses, which he based on prior diagnoses that he deemed to be subjective in nature, and that there are no objective clinical documentation of right knee or left shoulder disorders, the Board finds this statement is both factually inaccurate and inadequate. This is because the December 2017 private examiner's current diagnoses, which were objective in nature (following a physical examination of the Veteran and a review of his medical history) were dismissed by this July 2020 examiner, and he did not provide an adequate explanation for doing so. Consequently, the Board finds that the current evidence is at least in equipoise with regards to whether the Veteran has current respective diagnoses of a right knee and a left shoulder disorder, and resolving reasonable doubt in the Veteran's favor, the Board finds that first element of service connection has been met for these claimed service connection claims. With regard to in-service occurrence, the evidence reflects several complaints and treatment for both disorders. For her claimed right knee disability, the Veteran's service treatment records (STRs) show an August 2004 complaint of right knee pain (in addition to the low back and hip), citing no improvement with physical therapy. A May 2007 in service X-ray/Labs report of the Veteran's right knee reflects a diagnosis of right knee chondromalacia patella, treatment with NSAID and modified activities. There were also several subsequent in-service complaints and treatment in 2010 for her right knee pain, including an August 2010 evaluation (joint pain localized in the knee) and an October 2010 (physical therapy evaluation, patellofemoral dysfunction noted) report. With regard to the Veteran's left shoulder disability claim, the Veteran's STRs also reflect an October 2005 diagnosis of trapezius strain and treatment, and a complaint of right shoulder pain in December 2005, which referenced her previous diagnosis. Also, in March 2007, the Veteran's "major complaint" of neck and shoulder pain was referenced, noting tightness and treatment, including motrin and chiropractic therapy. In May 2007 (following an x-ray), the Veteran was again diagnosed with left shoulder trapezius strain. Further, a March 2010 report of the Veteran's report of left shoulder pain after flag football, and treatment with NSAID is also noted. Based on these specifically referenced in service complaints, treatments and diagnoses of right knee disorder and left shoulder disorder, especially in light of the fact that they are consistent with her current diagnoses of same, the Board accepts the Veteran's assertions of in-service occurrence as consistent with the circumstances of her service. Thus, the second element of the Veteran's service connection claims have been satisfied. As to the final element of a nexus, relating the Veteran's current disabilities to her military service, the July 2017 VA examiner found that there is no nexus, notwithstanding the Veteran's numerous documented in-service complaints and treatment for same, based on his finding of a lack of current diagnoses. In contrast, the December 2017 Veteran's private examiner's report provided positive nexuses, relating the Veteran's in services diagnoses and treatments for his right knee and left shoulder disorders to his current diagnoses of same, citing that her pain never resolved, and are consistent with her reports throughout her military career. For her right knee disorder, the private examiner specifically cites to the chronic nature of chondromalacia, which he finds consistent with the Veteran's military service. The private examiner also found that this is true for the Veteran's left shoulder disorder, finding that her chronic left shoulder strain is related to her military service, because her pain has been intermittent since her military service and continues to present. Consequently, the Board assigns the December 2017 VA examiner's opinion, high probative value as the examiner's reasoning is persuasive, taking that into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). In summary, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current right knee and left shoulder disorders were incurred in service. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right hip disorder is remanded. Although the Veteran's service treatment records reflect complaints, a diagnosis, and treatment for right hip pain, the July 2017 VA examiner reported that the Veteran does not have a current diagnosis of such. A subsequent July 2020 addendum report also reflects the same findings, citing that there is no ongoing treatment for chronic right hip disorder reflected in the available medical records. Furthermore, notwithstanding the December 2017 private medical examiner's finding of a current right hip disorder, he cites to the Veteran's reported symptoms in service as his basis for this diagnosis, while also stating that the Veteran "likely suffers from degenerative osteoarthritis of the right hip." Given these inconsistent reports, and a lack of specific diagnostic findings confirming or ruling out an osteoarthritis diagnosis, the Board finds that a new VA examination is warranted to confirm or rule out any current right hip disorder before this issue can be adjudicated by the Board on its merits. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with the appropriate medical personnel (other than the July 2020 examiner) to determine the current nature and etiology of any right hip disability. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. All studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. Following the examination of the Veteran and a complete review of the record, the examiner is asked to provide the following opinions: a) Identify any right hip disability, including osteoarthritis, during the appeal period (which must be confirmed or ruled out by an x-ray). b) If a disability is identified, the examiner must state whether it is at least as likely as not (a 50 percent or better probability) that any currently or previously diagnosed right hip disability was incurred during the Veteran's active service. c) Also state whether the Veteran has any current or previously-diagnosed right hip disability that is (i) is proximately due to the Veteran's now service-connected right knee disorder or (ii) was aggravated by the Veteran's service-connected right knee disorder. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability, as contrasted to a temporary worsening of symptoms. d) Further, if the examiner determines that the Veteran does not have any current right hip disability, the examiner should also: i) state whether the Veteran's reported symptoms of chronic progressive pain on her right hip result in functional impairment that impacts the Veteran's earning capacity; and ii) provide an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's right hip symptoms that cause functional impairment with regards to her earning capacity were caused by the Veteran's active military service. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that her reports must be considered in formulating the requested opinion. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is reminded that "at least as likely as not" does not mean "within the realm of medical possibility", but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Following the above development, and any other action needed to ensure substantial compliance with this Remand, the Agency of Jurisdiction (AOJ) must then readjudicate the Veteran's right hip disability claim. If the benefits sought on appeal are not granted, issue a supplemental statement of the case, provide the Veteran with an appropriate time to respond, and thereafter return the matter to the Board for further appellate review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.