Citation Nr: 21068281 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-46 712 DATE: November 9, 2021 ORDER Service connection for left knee disability is denied. Service connection for right knee disability is denied. Service connection for right shoulder disability is denied. FINDINGS OF FACT 1. The Veteran's left knee disability did not manifest in service and arthritis of the knee did not manifest within one year of separation from a qualified period of service. The disability is not otherwise related to service. 2. The Veteran's right knee disability did not manifest in service and arthritis of the knee did not manifest within one year of separation from a qualified period of service. The disability is not otherwise related to service. 3. The Veteran's right shoulder disability did not manifest in service and arthritis of the right shoulder did not manifest within one year of separation from a qualified period of service. The disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to January 1965, with additional reported and unverified periods of active duty for training and inactive duty for training. He appeals a June 2008 rating decision. The Board denied these claims in a September 2015 decision, and the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). The Court affirmed the decision in a September 2017 single judge decision and then in an October 2017 panel decision. The Veteran appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit), and in a February 14, 2019 decision, the Federal Circuit vacated the Court's decision and remanded the matters to the Court. Thereafter, the Court remanded the matter to the Board in an April 2019 Memorandum Decision. The April 2019 Memorandum Decision directed the Board to address whether it met its duty to assist in light of its failure to obtain private orthopedic records from Western Orthopedics that the Veteran identified for VA in 2013. It was noted that the Veteran had stated he was treated for the knees and right shoulder at Western Orthopedics & Sports Medicine, P.C. by Dr. K., who opined that a common or primary cause for his large number of painful orthopedic issues appears to be a very reasonable deduction. The Board remanded the claims to the agency of original jurisdiction (AOJ) in June 2020 consistent with the April 2019 Memorandum Decision, specifically to seek treatment records from Western Orthopedics, and again in October 2020 for examination and to seek additional potential records. The requested development has been completed, Western Orthopedics records have been added to the record, and the matters have been returned to the Board. Regarding the directives in the second remand, we note that a specific attempt was made to secure service personnel records to include a reported line of duty investigation from 1964 in Germany which yielded negative results. Also, VA treatment records from the 1970's were sought, again with negative results. Finally, we again note that the Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a Board hearing in October 2012 and a transcript of the proceeding is of record. During the Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim; inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with duties owed during a hearing set forth in 38 C.F.R. § 3.103. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases such as arthritis will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Service connection for left knee disability is denied. 2. Service connection for right knee disability is denied. 3. Service connection for right shoulder disability is denied. The Veteran urges that he has bilateral knee and right shoulder disability as the result of an artillery piece misfiring and causing him to be thrown into a truck, injuring his right shoulder and left knee on impact. As there is current disability as demonstrated in the August 2021 VA examination reports, the question for the Board is whether the disability manifested in service or within the applicable presumptive period or whether bilateral knee or right shoulder disability is otherwise related to service. We find that the preponderance of the evidence is against finding in-service incurrence or aggravation of a disease or injury and is also against finding a nexus between the current disabilities and service. As explained herein, the current disabilities first manifested many years following service and the weight of the competent and credible evidence is against finding they are related to the alleged events in service. The service treatment (STRs) records are silent for shoulder or knee complaints. At separation, he denied a history of shoulder or knee issues. The December 1964 separation examination disclosed that the musculoskeletal system, upper extremities and lower extremities were normal. He denied painful or 'trick' shoulder, 'trick' or locked knee, and arthritis. He also denied having had any illness or injury other than those already noted. Private treatment records show the Veteran was seen for impingement syndrome and right rotator cuff tear in February 1990. An April 1996 X-ray of the right shoulder from Valley View Hospital showed no rotator cuff tear. In January 2009, the Veteran expressed his belief that the incident which led to his shoulder and bilateral knee injuries occurred in May 1964, after being treated for eye irritation from dust particles. Notably, his STRs show a similar complaint of eye irritation in June 1964, but no shoulder, knee, head or ear injury. The Veteran has been granted service connection for hearing loss and tinnitus, and he alleges these issues stemmed from the same event in which he injured his shoulder and knees. The Veteran testified that when he got out of service, he worked construction. He first sought medical treatment in the early 1970s when he went to the VA Medical Center in Ann Arbor, Michigan, once. The Veteran did not receive a diagnosis for either of the claimed shoulder or knee disabilities until at least 1990. As for the claimed treatment in the 1970's, such have not been located at VA treatment facilities. Also, Valley View Hospital was contacted in connection with the October 2020 remand and reported no additional records for the Veteran. Western Orthopedics and Sports Medicine records date from 2012 to 2020. A February 2013 VA examination reflects the VA examiner's opinion that the Veteran's right shoulder, right knee, and left knee disabilities were less likely than not incurred in or caused by the Veteran's claimed in-service injury. The VA examiner diagnosed a medial meniscus tear of the left knee, degenerative arthritis of the right knee, right shoulder impingement, and a right shoulder rotator cuff tear. They elaborated that the Veteran's in-service injury resulted in a head injury and bleeding from the ear for which the Veteran was observed for several hours. The Veteran's separation examination was negative for joint problems related to the shoulders and knees. During the examination, the Veteran admitted that in the third decade of his life it was not apparent that there were any service-connected problems. Later in life, the right shoulder, right knee, and left knee joints merited some medical treatment with worsening in his sixties. The VA examiner noted that there was a lack of information about the original in-service injury and the degree of disability that currently exists. They concluded that there was no convincing evidence relating the Veteran's current right shoulder, right knee, and left knee disabilities to an in-service disease or injury. Since that time, the Veteran has made additional lay statements, including statements in direct contradiction to those he made in the January 2013 examination report, e.g. clarifying statement regarding third decade of life. See letter dated September 14, 2020, in Congressionals received September 17, 2020. Additionally, medical records reflecting new diagnoses, including osteoarthritis of the left knee and right shoulder, were added to the record. As such, the Board ordered examination in the October 2020 remand. The Veteran was afforded VA examination in August 2021 by an examiner who reviewed the record. The diagnoses included bilateral knee osteoarthritis from 2013, left knee instability from 2021, right shoulder arthritis from 2014 and right shoulder arthroscopy for subacromial decompression and debridement of partial thickness cuff tear from 2011. The examiner noted the reported 1964 onset and that the Veteran stated he injured his shoulder during a misfire of a cannon (hangfire) from howitzer, the blast threw him up against a truck. He stated his right shoulder was painful from then on. He was a carpenter by trade but after the service (as he had been drafted) he could no longer do that. He had surgery in 2011, debridement of the right shoulder. There was talk in 2019 of getting a shoulder replacement but COVID hit, so this got delayed. Now just gets cortisone. As to the reported history of the knees, it was noted that when he had the howitzer incident, he also injured his knees. Over the years both knees got worse with pain. He could not do his job as a carpenter. He was considered for knee replacements, however, COVID had hit so this was delayed. Now feels he is too old in general. The examiner concluded that the bilateral knee disability and the right shoulder disability were was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. As to the right knee condition, characterized as right knee osteoarthritis, the rationale included: The veteran was originally seen on January 7, 2008 at the VA ortho for right knee pain, and discussion was made for arthroscopic surgery for repair of his torn medial meniscus. He was seen again on October 30, 2008 for right knee pain and early degenerative joint disease. He had a knee injection on the right side on February 11, 2013. The veteran had reported injury to his knee in 1964 while being thrown during an explosion. However, 44 years' time had lapsed since seeking medical care. Therefore, a medical nexus cannot be established. It is less likely than not that the veteran's right knee osteoarthritis is related to service. As to the left knee condition, characterized as left knee osteoarthritis and knee instability, the rationale included: The veteran was originally seen at the VA for his left knee on January 22, 2013 due to increasing pain. On January 30, 2013 he had a steroid injection in his left knee. On November 25, 2013 he was seen by orthopedics for his left knee pain, as well as October 23, 2014, May 27, 2015, February 22, 2016, and July 20, 2016. These appointments were all done by Dr. Knackendoffel, Orthopedics specialist. It should be noted he had Synvisc injections in the left knee in 2013/2015/2016 for his osteoarthritis which was well established. In November 30, 2016, Dr. Knackendoffel wrote the following: "Complains of left knee pain without injury. Onset of symptoms 12/2012". He was seen again by Ortho on January 19, 2017, left knee pain and recurrent injection with discussion of TKR in future. Lastly July 1, 2020 the veteran was seen for his left knee pain and discussion for knee replacement options were made. The veteran's incident of injury occurred in 1964, though his first STR [post service] established visit was in January 2013, which is nearly 50 years later. A medical nexus cannot be established in this case, therefore it is less likely than not that the veterans left knee condition is related to service. As to the right shoulder conditions, the rationale included: The veteran was first seen for his right shoulder as documented [i]n STR on January 7, 2008 for his right shoulder and assessed with partial tear to the rotator cuff/impingement syndrome. October 1, 2007. He is seen in ortho and reports a history of 1964 injury to right shoulder as well as accident at work in the mid-1990s where a ladder had fallen on his right shoulder on the underside. He was seen by an orthopedic surgeon in Aspen but had declined surgery at that time. In April 2011 the veteran underwent decompression and rotator cuff repair of the right shoulder. His follow-up in August 2, 2011 reports marked improvement following the surgery. In June 12, 2012 he is again seen for right shoulder pain, as veteran reports "overdoing it" at work. He had been and at the time was a heavy equipment operator. He was again seen on August 3, 2017 for right shoulder pain. It is noted that he had Physical therapy for this right shoulder in March and April of 2019. Subsequently he was seen for his right shoulder again on May 18, 2019 and June 26, 2019. January 30, 2008 VA statement in support of claim: Pt states that in the spring of 1964 he was passing near a Howitzer and it "blew up" during a mis-fire injuring the gun crew and two surveyors. Pt states he was blown into a "deuce and half" truck injuring Pt's R shoulder, and knees. The veteran states that the initial injury occurred in 1964, and the first documentation of seeking medical services was in 2007. Furthermore, the veteran states a significant injury to the right shoulder due to work in the 1990s in which surgery was suggested. There is a 43 year expanse of time between injury and the veteran seeking care for the incident in 1964, therefore a medical nexus cannot be established. It is less likely than not that the veteran's right shoulder conditions are related to service. In further addressing the claimed 1964 Howitzer incident, the examiner stated that the Veteran's medical records do not establish a medical nexus for the knees, noting he was first seen in 2008 for the right knee, and in 2013 for the left. This is a significant expanse of time in which other injuries, wear and tear, and age likely have played a major role in the development of osteoarthritis. For the shoulder, the examiner emphasized that the record establishes care in 2007. Although the Veteran did receive surgery in 2011 for rotator cuff tear and decompression, he had also reported an injury at work in which surgery was suggested at the time in the mid-1990s which the Veteran declined. The examiner then pointed out that the Veteran's employment consisted of heavy equipment operator for many years, repeated pushing, pulling and lifting certainly occurred in which slow progressive injuries may have developed over time. Finally, regarding whether the Veteran's reports about his symptoms align with how any current disability is known to develop or are generally inconsistent with medical knowledge or implausible, the examiner noted that the Veteran's overall symptoms in the right/left knee and right shoulder are that of progressive diagnosis with age, wear and tear over time and injury (as Veteran reported to ortho 10/1/2007 of right shoulder). Again it was noted that the Veteran's occupation should also be considered to play a role in this as well. While knee and shoulder arthritis constitute chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), no such disease manifested in service or within a presumptive period, and continuity of symptomatology is not established. Again, STRs were negative for knee or right shoulder complaints or problems, and there were no related complaints for years following service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Indeed, the Veteran's December 1964 service separation examination was normal and relevant symptoms were denied. There is no suggestion of the problems in a treatment record for years following service. Thus, bilateral knee and right shoulder disorders were first noted years following the Veteran's separation from active service in early 1965 and outside the applicable presumptive period. While the Veteran is competent to report having experienced certain symptoms, to the extent that he alleges symptoms since service, the record of the normal examinations in service to include at separation, with denial of symptoms, and the lack of complaints for many years in post service records contradicts these assertions. Also relevant is the August 2021 VA medical opinions that knee and right shoulder problems were not noted in service or for years later nor was the record consistent with such a finding. To that extent, the Veteran's assertions are not credible. Here, bilateral knee or right shoulder pathology, to include arthritis, was not "noted" during service and he did not have characteristic manifestations of the disease process during service or within one year of separation. Rather, at separation the joints were normal and he denied a pertinent history at that time. The Board accords substantial probative weight to the competent medical evidence, the treatment record and the 2021 VA opinion, which establishes that the bilateral knee and right shoulder disorders first manifested decades after service, and not during service or during a presumptive period. The medical record is contrary to his lay assertions and is more probative than the Veteran's assertions on these points. This is a medically complex issue and we find no documentation that a medical professional supports his theory. Further, the preponderance of the evidence is against finding that a nexus exists between the Veteran's bilateral knee or right shoulder disorders and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Again, we find that the disorders began years after service and have not been related to service by any competent evidence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Again, we have negative clinical examinations and no complaints, indeed denial of problems, in service, initial recorded complaints and treatment not for decades, and diagnoses not before the 2000's. Even the mention of right shoulder impingement in the 1990's was reported close in time to an injury at work in which surgery was suggested but declined. The lack of identification of complaints or findings in the post service treatment record for multiple decades following service is highly persuasive evidence against finding current bilateral knee and right shoulder disabilities related to service. Ultimately, the Board gives more probative weight to the credible medical evidence, most notably the 2021 VA medical opinions which shows that the disorders first manifested decades after service and are unrelated to service. The multi-year gap between discharge from active duty service and evidence of the condition decades later is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds the VA medical examiner's opinions to be the most probative of record as they are based upon the Veteran's entire medical history and give a well-supported rationale with a reasonable alternative as to the etiological cause of the Veteran's claimed disability, specifically age, wear and tear over time, injury (as Veteran reported to a provider in 2007 of right shoulder) and his occupation which likely involved repeated pushing, pulling and lifting in which slow progressive injuries may have developed over time . Prejean v. West, 13 Vet. App. 444 (2000). The examiner considered the Veteran's report of the incident in 1964 and explained why they found that the current conditions were not as likely as not related to the incident. The examiner has fairly considered the material evidence of record. The medical record more probative than the Veteran's assertions on these points. This is a medically complex issue and we find no documentation that a medical professional supports his theory. The Veteran's assertions of on-going symptoms since service are not credible. The preponderance of the evidence is against the claims. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.