Citation Nr: 21066550 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-08 960A DATE: November 1, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right shoulder disability, diagnosed as limitation of motion of the right shoulder, is granted. FINDINGS OF FACT 1. A current disability of the right knee was not incurred in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree within a year of service separation, and is not due to an in-service disease, injury, or other incident of service. 2. A current disability of the left knee was not incurred in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree within a year of service separation, and is not due to an in-service disease, injury, or other incident of service. 3. A current disability of the left hip was not incurred in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree within a year of service separation, and is not due to an in-service disease, injury, or other incident of service. 4. The Veteran has a current diagnosis of limitation of motion of the right upper extremity which is due to a service-connected degenerative disc disease with intervertebral disc syndrome of the cervical and radiculopathy of the right upper extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for limitation of motion of the right shoulder have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 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 July to December 1958 and May 1968 to September 1969, with additional periods of active duty for training (ACDUTA) and inactive duty for training (INACDUTRA) in the Idaho National Guard between May 1958 and September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2020, he testified before the undersigned Veterans Law Judge (VLJ) via videoconference. These issues were previously remanded by the Board in February 2021 for additional development. That development has been accomplished and these issues have been returned to the Board. Also remanded by the Board in February 2021 was the issue of entitlement to service connection for a neck disability. In an August 2021 rating decision, the Veteran was awarded service connection for degenerative disc disease with intervertebral disc syndrome of the cervical spine. Thus, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability The Veteran seeks service connection for disabilities of the bilateral knees. He asserts he initially injured his knees as a result of a motor vehicle accident in service, and service connection is therefore warranted. Specifically, the Veteran asserts he was involved in a motor vehicle accident in April 1958, while driving to military training. He has also asserted that his years of running and doing physical training in military boots caused chronic injuries to both knees. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a disability of either knee, or for residuals of a motor vehicle accident. Periodic medical examinations in December 1967, August 1969, June 1973, June 1977, and May 1981 are all negative for any abnormality of the knees. Likewise, an April 1985 service examination was without any noted abnormalities of the knees or lower extremities. Based on these findings, the Board finds that disabilities of the knees were not incurred in service. An October 2015 private x-ray of the right knee confirmed degenerative joint disease of the knee. 2017 VA clinical records also note the Veteran's complaints of bilateral knee pain. These post-service complaints and findings date to more than 25 years after the Veteran's last period of active duty service. During the hearing, the Veteran testified that he was unsure when his knee pain began. He speculated that it started while it was on active duty. However, as discussed above, knee abnormalities were not noted in his 1985 examination or in the prior in-service examinations. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). These in-service examinations suggest that the Veteran did not experience ongoing symptoms. If the Veteran had been experiencing such symptoms, they would have been documented at this time as the report of medical history documents the Veteran's complaints for other issues. For example, in an August 1969 self-report of medical history completed following his car accident, the Veteran reported a history of broken bones, but denied a trick or locked knee, swollen or painful joints, arthritis, and bone or joint deformities. Additionally, no competent evidence has been presented establishing a nexus between any in-service disease, injury, or other event of service, and a current knee disability. Nor has evidence been presented showing that the knee manifested to a compensable degree within one year of service. The Veteran has asserted, and has submitted lay statements from his wife and two friends as well, that his current bilateral knee disabilities are due to the rigors of service. As laypersons, however, the Veteran and his spouse are not capable of making medical conclusions; thus, their statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. Thus, in the absence of competent evidence establishing that current disabilities of the bilateral knees were incurred in service, have been chronic or continuous since service separation, manifested to a compensable degree within a year of service separation, or are due to an in-service disease, injury, or other incident of service, service connection for bilateral knee disabilities must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for a left hip disability The Veteran seeks service connection for a disability of the left hip. He asserts he injured his left hip while helping move a fellow soldier, and that injury has persisted to the present time. As a result, the Veteran asserts, service connection for a left hip disability is warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a left hip disability. The Veteran testified at his November 2020 hearing that he did not seek any formal treatment for this injury at the time it occurred, and no in-service record of this injury existed, to the best of his knowledge. Indeed, periodic medical examinations in December 1967, August 1969, June 1973, June 1977, and May 1981 are all negative for any abnormality of the hips. Likewise, an April 1985 examination was without any noted abnormalities of the hips or lower extremities. Based on these findings, the Board concludes that a disability of the left hip was not incurred in service. It is reasonable to assume that if the Veteran had been experiencing ongoing hip pain or a hip disability following his alleged in-service injury, even if it was not reported, such a disability would have been noted or identified during his in-service examinations. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). These in-service examinations suggest that the Veteran did not experience ongoing symptoms. VA clinical records from 2017 note the Veteran's complaints of left hip pain. An April 2017 x-ray study noted subtle degenerative changes of the left hip. This post-service complaint of left hip pain is more than 25 years after the Veteran's last period of active duty service. No competent evidence has been presented establishing a nexus between any in-service disease, injury, or other event of service, and a current left disability. Nor is there evidence indicating that the Veteran's hip manifested to a compensable degree within a year of service separation. The Veteran was afforded a VA medical examination and opinion in May 2015. His claims file was reviewed in conjunction with the examination. After examining the Veteran and reviewing the record, the examiner opined it was less likely than not any current disability of the left hip was incurred in or otherwise related to service. The examiner found no evidence in the record that degenerative arthritis or any other disability of the left hip first manifested in service, or was otherwise related to service. The Veteran has asserted, and has submitted lay statements from his wife and two friends as well, that his current left hip disability is due to the rigors of service. As laypersons, however, the Veteran and his spouse are not capable of making medical conclusions; thus, their statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. Thus, in the absence of competent evidence establishing that current disability of the left hip was incurred in service, have been chronic or continuous since service separation, manifested to a compensable degree within a year of service separation, or are due to an in-service disease, injury, or other incident of service, service connection for bilateral knee disabilities must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to service connection for a right shoulder disability The Veteran seeks service connection for a right shoulder disability. He asserts such a disability was initially incurred in service as the result of a motor vehicle accident. In the alternative, he asserts a right shoulder disability is due to or aggravated by a service-connected neck disability. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Subsequent to the Board's prior February 2021 remand order, the Veteran was granted service connection for a cervical spine disability, degenerative disc disease with intervertebral disc syndrome. He was also granted service connection for radiculopathy of the right upper extremity, as secondary to his cervical spine disability. After considering the totality of the record, the Board finds service connection is warranted for limitation of motion of the right shoulder as secondary to a service-connected cervical spine disability. Pursuant to the Board's prior remand, the Veteran was afforded April and May 2021 medical examinations and opinions. Upon examination of the Veteran, the April 2021 examiner determined the Veteran had radiculopathy of the cervical spine at C5-6. Moreover, this radiculopathy resulted in impairment of the right shoulder. Likewise, the May 2021 examiner also found limitation of motion of the Veteran's right shoulder resulting from his cervical spine disability. In considering the Veteran's claim, the Board acknowledges that the May 2021 VA examiner determined a right shoulder disability was not present. This same examiner, however, characterized the Veteran's range of motion of the right shoulder as "abnormal." Service connection may be awarded for functional impairment regardless of whether a formal diagnosis has been rendered by a competent examiner. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Based on these findings, and affording the Veteran the benefit of the doubt, the Board finds a grant of service connection for limitation of motion of the right upper extremity is warranted as secondary to the service-connected cervical disability. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.