Citation Nr: 21065960 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-11 433 DATE: October 28, 2021 ORDER Entitlement to service connection for a left elbow disorder is denied Entitlement to service connection for a right elbow disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran's left elbow disorder did not begin during active service, is not otherwise related to an in-service injury or disease and arthritis did not manifest to a compensable degree within one year of service discharge. 2. The Veteran's right elbow disorder did not begin during active service is not otherwise related to an in-service injury or disease and arthritis did not manifest to a compensable degree within one year of service discharge. 3. The Veteran's left knee disorder did not begin during active service, is not otherwise related to an in-service injury or disease and arthritis did not manifest to a compensable degree within one year of service discharge. 4. The Veteran's right knee disorder did not begin during active service, is not otherwise related to an in-service injury or disease and arthritis did not manifest to a compensable degree within one year of service discharge. 5. The Veteran's right shoulder disorder clearly and unmistakably did not preexist active service, did not begin during active service nor is otherwise related to an in-service injury or disease and arthritis did not manifest to a compensable degree within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a left elbow disorder are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right elbow disorder are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was most recently before the Board in May 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matters were remanded to obtain updated VA treatment records and to obtain VA etiology opinions. Updated VA treatment records have been associated with the record and a May 2021 letter requested that the Veteran complete appropriate authorization forms to allow VA to obtain records on his behalf. VA examinations and etiology opinions were obtained in August 2021. The Board therefore finds that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. Service Connection The Veteran seeks entitlement to service connection for left and right elbow disorders, right and left knee disorders, and a right shoulder disorder. As noted in the November 2020 and May 2021 Board remands, the Veteran asserts that his right and left elbows were injured due to physical activities and the rigors of his active service, to include attending Air Assault School. Board hearing transcript, June 1, 2020. Moreover, he asserts that when he injured his right shoulder, he also hit his right elbow; and that when he would seek treatment during service, he was sent away. Id. Further, the Veteran asserts he experiences left elbow symptoms, and has a diagnosis of right elbow pain and tendonitis. Id. The Veteran also asserts that he injured both elbows during a fall while stationed at Fort Campbell, Kentucky. See VA Form 21-4142 Authorization for Release of Information, April 24, 2014. With regard to his bilateral knees, the Veteran asserts that his bilateral knee pain began during active service, is attributable and secondary to his knee injuries, and that his symptoms began during active service and have continued since. Board hearing transcript, June 1, 2020; see also Notice of Disagreement, November 4, 2014. With regard to his right shoulder, the Veteran asserts that he injured his right shoulder during a fall, and as due to physical activities and the rigors of his active service. Board hearing transcript, June 1, 2020; see also VA Form 21-4142 Authorization for Release of Information, April 24, 2014. Moreover, he asserts that around April 1977 while on march orders, he tripped and fell and injured his shoulder, and was treated in the field by a medic; and that since that time, his shoulder pain had worsened and the symptoms have continued since. See Notice of Disagreement, November 4, 2014; see generally VA Form 9, March 12, 2016; Board hearing transcript, June 1, 2020. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A veteran is presumed to be in sound condition when entering military service except for conditions noted on the entrance examination. To rebut this presumption of soundness, VA must establish clear and unmistakable evidence that (1) an injury or disease existed before acceptance and enrollment into service, and (2) that the preexisting condition was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). With respect to preexisting disabilities, if a disorder was not noted on entering service, VA must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for service under 38 U.S.C. § 1111. Significantly, only such conditions recorded in examination reports are considered to be noted. 38 C.F.R. § 3.304(b). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence, service treatment records show that the Veteran reported right knee pain in August 1978, that he was treated for a left knee twisting injury in April 1977 and that he complained of cramps in legs due to running at his separation examination in January 1979. Additionally, service treatment records show that the Veteran had a childhood injury related to his right humerus as noted on his examination upon entrance to active service. Service Treatment Record, March 12, 1976. A January 1979 service discharge examination found the Veteran's upper and lower extremities to be normal. Post-service VA and private treatment records show knee pain. See January 2006 private treatment record; see also September 2015 VA treatment record. Additionally, the Veteran testified he had diagnoses of bilateral knee arthritis. Board hearing transcript, June 1, 2020. Post-service VA and private treatment records show a diagnosis of right shoulder joint arthritis and complaints of right shoulder pain. See e.g. September 2010 private treatment record; see also July 2014 VA treatment record. Additionally, the Veteran testified he had diagnoses of right shoulder rotator cuff tear and tendonitis. Board hearing transcript, June 1, 2020. The Board has first considered whether arthritis is warranted on a presumptive basis. The clinical evidence of record fails to show that arthritis of the elbows and knees manifested within one year after service discharge. The Veteran did not report symptoms of a knee or elbow disorder or other significant interval history in the January 1979 service discharge examination report. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for arthritis of the elbows and knees is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the question of whether there is an etiological relationship between the Veteran's left elbow, right elbow, left knee, right knee, and right shoulder disorders and his service, the Board notes that the record contains several separate etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. The Veteran was afforded VA examinations for his knee disorders in September 2014. At that time, the examiner diagnosed bilateral degenerative joint disease of the knees. The VA examiner opined that it was less likely than not that the Veteran's bilateral knee disorders were incurred in or caused by active service and noted that the Veteran had bilateral mild arthritis of the knees that was commensurate with his age, that the Veteran was diagnosed with bilateral knee strains during active service, and that there is no evidence in the medical literature that links soft tissue injuries to the development of arthritis. The VA examiner also noted that advanced age is one of the strongest risk factors associated with osteoarthritis, and that the findings were consistent with these studies. The Veteran was afforded a VA examination for his right shoulder in September 2014. At this time, the VA examiner found the Veteran did not have or ever had a shoulder condition, and noted that the Veteran believed he may have had arthritis in his right shoulder. The VA examiner opined that as there was no objective evidence of any right shoulder condition, no opinion as to the nature and etiology of such condition would be offered. The November 2020 Board remand found the September 2014 VA examination opinions inadequate to decide the claims. In this regard, the Board found that such opinions did not give appropriate consideration to the Veteran's statements regarding the onset and continuity of his symptoms, nor did the opinions adequately provide supporting rationale for the conclusions reached. Moreover, with regard to the Veteran's right shoulder disorder, the Board found that the September 2014 VA examination opinion relied on inaccurate facts, namely, that the Veteran did not have a right shoulder diagnosis and did not give appropriate consideration to the Veteran's statements regarding the onset and continuity of his symptoms. In addition, the examiner did not adequately address the impact of the Veteran's childhood humerus injury as noted upon entry into active service. This September 2014 opinion is therefore afforded little, if any, probative weight. The Veteran was afforded a VA examination for his elbows, knees, and right shoulder in February 2021. At that time, the examiner opined the Veteran's left elbow, right elbow, left knee, right knee, and right shoulder were less likely than not related to active service. Specifically, with regard to his bilateral elbows, bilateral knees, and right shoulder, the February 2021 examiner noted that there was no record of a significant, documented injury while in service, that there must be documented pathology to support the claim and that the Veteran did not have significant injuries related to his elbows, knees, or right shoulder in service. The examiner further opined that there was no nexus medical or scientific evidence linking the conditions to his time in service to a current condition, there must be documented evidence of an injury to support the claim and that the Veteran's condition was more likely than not rom a nonservice related injury or overuse syndrome. Therefore, the examiner found that without further evidence, the Veteran's claims could not be supported at that time. Additionally, with regard to the Veteran's right shoulder, the February 2021 examiner opined that the right shoulder disorder clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In that regard, the examiner noted that there was no significant evidence to support a pattern of exacerbation of the pre-service right shoulder condition, and without any further evidence, the Veteran's claim could not be supported at that time. The May 2021 Board remand found the February 2021 VA examination opinions inadequate to decide the claims. In this regard, the Board found that such opinions relied on the absence of documented in-service injuries to support of the opinions and did not consider the Veteran's reports of in-service injuries. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's reports of in-service injury and instead relied on the absence of evidence in a veteran's service treatment records to provide a negative opinion). Additionally, the February 2021 VA etiology opinions did not address the Veteran's statements and contentions regarding in-service injuries, as directed by the November 2020 Board remand directives; did not address the specified service treatment records as indicated in the November 2020 Board remand directives; and relied on inaccurate facts, namely, that the Veteran did not have documented in-service events or injuries. These opinions are therefore afforded little, if any, probative weight. The Veteran was afforded a VA examination for his elbows, knees, and right shoulder in August 2021. At that time, the examiner opined the Veteran's left elbow, right elbow, left knee, right knee, and right shoulder were less likely than not related to active service. Specifically, with regard to the Veteran's bilateral elbows, the August 2021 VA examiner noted that the Veteran's statements were considered, but unfortunately, such subjective reports were not congruent with nor did they supersede the objective medical evidence of record. In this regard, the examiner noted that the Veteran specifically denied having any previous or ongoing elbow conditions at the time of his separation examination or history and physical in January 1979. Additionally, the examiner noted the first instance of objective evidence showing an elbow condition of any kind was in June 2001. The Veteran's records were not remarkable for elbow care or diagnoses, and private medical records from 1992 to 2014 could not be obtained. However, the VA examiner noted that even a diagnosis or care for elbow conditions beginning in 1992 would not establish a nexus to an active duty period ending in 1979 regardless. The August 2021 VA examiner explained that acute injuries reported by the Veteran were noted and considered, but there was no evidence to substantiate any continuity or chronicity of such injuries during or since service. In this regard, the evidence showed that the Veteran did not develop[ chronic elbow issues until many years after separation from active service. With regard to his bilateral knees, the August 2021 VA examiner noted the medical records did reflect subjective reports of an acute injury, specifically an acute left knee twisting injury that occurred in April 1977, but that there was not objective evidence of continuity or chronicity from the injury beyond that point; the same was seen for his acute right knee pain reported in 1978. In this regard, the VA examiner noted that the Veteran denied ongoing or history of problems with either knee at the time of his separation physical examination from active duty in January 1979, and such physical examination was negative for any knee diagnoses. Additionally, the VA examiner found that the bilateral knee arthritis currently diagnosed appeared consistent for the Veteran's age, and that his bilateral knee strain would not alter the likelihood of his claim and would be a less severe issue as compared to arthritis. The August 2021 VA examiner explained that acute injuries reported by the Veteran were noted and considered, but there was no evidence to substantiate any continuity or chronicity of such injuries during or since service. In this regard, the evidence showed that the Veteran did not develop chronic knee issues until many years after separation from active service; his bilateral knee diagnoses were more consistent with his age. The examiner noted that aside from a subjective complaint of a cramp in his leg, there was no evidence to aid in establishing a nexus from the medical evidence provided. With regard to his right shoulder, the August 2021 VA examiner noted that the Veteran's right shoulder condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In this regard, the examiner noted that the Veteran's enlistment medical examination from March 1976 clearly indicated that the Veteran ad a childhood right humerus fracture without symptoms. The examiner found that the Veteran's right arm fracture would have likely healed rapidly and without complications, and noted that no sequalae were noted upon enlistment. Although the Veteran firmly denied any knowledge of a right arm fracture, the examiner found that a fracture of the humerus would only be considered to involve the shoulder joint if the fracture was through the humeral head or neck and a distal fracture of the humerus, closer to the elbow was more likely due to the sparing notes regarding the alleged injury in childhood. Therefore, the presumption of soundness attached. Additionally, the August 2021 VA examiner opined that the right shoulder disorder was not aggravated beyond its natural progression by an in-service injury, event, or illness, because there was no preexisting condition as shown in the medical records. In this regard, the examiner found that there was no apparent evidence of a true preexisting right shoulder condition prior to service for the rationale given above. The VA examiner noted that the Veteran firmly denied ever having a childhood right humerus injury, and found that the condition clearly and unmistakably did not preexist active service. However, the VA examiner opined that the right shoulder disorder, that did not preexist service, was less likely as not to have had its onset during service nor was etiologically related to service. In this regard, the examiner noted the Veteran's reports of a fall and injury in 1977, but that the Veteran denied having a painful or "trick" shoulder upon his separation examination dated in January 1979. Additionally, the VA examiner noted the Veteran's lay statements and considerations regarding the subjective reports, and found that such reports were incongruent with nor did they supersede the available objective medical evidence. Moreover, the August 2021 VA examiner noted that there were extensive rigors and acute injuries to the knees and other claimed joints, but that did not constitute evidence that might aid in establishing a nexus to his current health status particularly in light of his denials of ongoing knee, shoulder, or elbow issues at the time of his separation from active service. The August 2021 VA examiner noted the Veteran's statements and contentions of in-service injuries, pain, and treatment as shown in service treatment records, and the specific circumstances as they related to the Veteran. Notably, the August 2021 VA examiner noted the Veteran's reported rigors and activities during service, to include knee and elbow pain noted in service, and the indication of a childhood right humerus fracture, and addressed the lack of continuity and/or care thereafter. In this regard, the examiner noted the Veteran did not complain of continuing problems associated with his in-service incidents at his separation physical examination in January 1979, and found the Veteran's claimed disorders did not manifest until many decades after separation from active service. Significantly, with regard to the Veteran's right shoulder disorder, the August 2021 VA examiner noted the Veteran's vehement denials of a childhood injury, and found that regardless, such alleged childhood injury would have resolved without any complications and additionally, would not have involved the right shoulder. The examiner also noted the Veteran's reported fall injury during active service, and addressed the lack of continuity and/or care thereafter. In this regard, the examiner noted the Veteran did not complain of continuing problems associated with his in-service incidents at his separation physical examination in January 1979, and found the Veteran's claimed right shoulder disorder did not manifest until many decades after separation from active service. Further, the August 2021 VA examiner noted that there were extensive rigors and acute injuries to the knees elbows, and right shoulder, but that did not constitute evidence that might aid in establishing a nexus to his current health status particularly in light of his denials of ongoing knee, shoulder, or elbow issues at the time of his separation from active service. Thereafter, the August 2021 VA examiner opined that the Veteran's claimed left elbow, right elbow, left knee, right knee, and right shoulders were less likely than not etiologically related to his active service, and addressed the medical evidence demonstrating that there were no pathoanatomic correlation between the conditions, and therefore opined a nexus between the two were less likely. These opinions are therefore afforded great probative weight. The Board finds that the August 2021 VA medical opinions have clear conclusions and supporting data, as well as reasoned medical explanations when finding that the Veteran's left elbow, right elbow, left knee, right knee, and right shoulder disorders are not etiologically related to his active service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary probative opinion of record. The Board notes the Veteran's statements and contentions that his left elbow, right elbow, left knee, right knee, and right shoulder disorders were as a result of his active service, to include the injuries and/or treatment found in his service treatment records as related to the rigors of his service. However, as discussed above, the contemporary evidence contradicts this assertion, and there are no medical findings of record indicating that his left elbow, right elbow, left knee, right knee, and right shoulder disorders are etiologically related to his active service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's left elbow, right elbow, left knee, right knee, and right shoulder disorders and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran was competent to describe his current elbow, knee, and shoulder symptoms, the Board accords his statements regarding the etiology of such a disorder little probative value as he was not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Hence, the Board finds that they are not competent to provide a medical opinion to support this claim on the basis of his assertions alone. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. (Continued on the next page) The Board therefore finds the preponderance of the evidence is against the claims. Consequently, service connection for left elbow, right elbow, left knee, right knee, and right shoulder disorders is not warranted. As the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not applicable to these claims. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.