Citation Nr: 21068920 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 14-09 980 DATE: November 16, 2021 ORDER Service connection for right shoulder condition is denied. Service connection for right knee condition is denied. Service connection for right arm condition, also claimed as right elbow condition is denied. FINDINGS OF FACT 1. The Veteran's right shoulder condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's right knee condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's right elbow condition clearly and unmistakably existed prior to service and clearly and unmistakably was not permanently aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1131, 1137, 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. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right arm condition, also claimed as right elbow condition have not been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from October 1975 to October 1978. This matter was most recently before the Board in November 2020 where the claims for service connection for a right shoulder condition, right knee condition, and right elbow condition were remanded. Specifically, the Board found that the examinations of record are inadequate to decide these issues due to a failure to substantially comply with Board remand directives and consider lay statements of record. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). The Board is satisfied that there has been at least substantial compliance with remand directives. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection for right shoulder condition The Veteran seeks service connection for a right shoulder condition which he attributes to his military service. He does not report a specific injury, but instead states that the intense focus and encouragement to continue ranking highly in physical tests in order to more quickly increase rank, contributed to the wearing of his body. See January 20, 2021 VA Examination. Service treatment records are silent for complaints of a right shoulder condition. At a June 1978 Medical Examination, bursitis of the left shoulder was noted but there is no mention of any issues with the Veteran's right shoulder. On the Veteran's Report of Medical History from June 1978, he explicitly stated that his left shoulder was painful. No mention was made of issues with his right shoulder. Service treatment records show several instances of treatment for left shoulder symptoms. In January 2021, the Veteran was afforded a VA examination at which he was diagnosed with right bicipital tendon tear, right rotator cuff tear, right labral tear, right glenohumeral joint osteoarthritis, and right acromiclavicular joint osteoarthritis. He reported to the examiner that he felt that the intense focus and encouragement to continue ranking highly in physical tests contributed to the wearing of his body. The Veteran reported issues with his left shoulder in 1976 and indicated he sought treatment for his left shoulder. No mention of right shoulder issues during service was indicated. The examiner opined that the Veteran's right shoulder condition is less likely than not (less than 50 percent probability) due to his active service and did not have its clinical onset during service or due to an event or incident during the Veteran's active service. The examiner indicated that there was no evidence seen in service treatment records of right shoulder complaints in or within one year from discharge from active duty. Although the Veteran's account indicates he had right shoulder issue during service, there is an absence of records during and in the immediate years for right shoulder complaints. Furthermore, the examiner noted that the Veteran reported working in a paper mill for more than 17 years after his active-duty service which was more likely to have significantly impacted his shoulder, due to the significant physical strain, than was his approximately three years of active duty. An addendum opinion was obtained in June 2021 where the examiner again provided a negative nexus opinion. The examiner opined that it was less likely than not that the Veteran's right shoulder disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service because there is no mention of right shoulder issues during active-duty period nor within one year of service. At an April 2011 VA examination, the Veteran reported that he experienced left shoulder pain while at Fort Hood and recently began to have a similar pain and swelling on the right arm. VA treatment records from June 2011 show a diagnosis of right impingement syndrome, possible rotator cuff tear of the right shoulder, right bicep tendinis. December 2016 private treatment records note acute exacerbation of chronic right shoulder pain due to a fall at work two weeks prior. The Veteran has a current diagnosis of right bicipital tendon tear, right rotator cuff tear, right labral tear, right glenohumeral joint osteoarthritis and right acromiclavicular joint osteoarthritis as evidenced by January 2021 VA Examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran's first complaint of right shoulder pain occurred in July 2011, three decades after his separation from service and decades outside of the applicable presumptive period. At that time, the Veteran reported that the shoulder pain had been occurring for two years (2009) and denied any injury to his shoulder. The Veteran's statements themselves regarding his right shoulder condition are not found to be sufficiently credible to establish service connection because the statements through the years have been inconsistent as to when the disability started. For example, while he now asserts that the condition began in service, when he sought treatment for his right shoulder condition in July 2011, he indicated that he that he had only experienced right shoulder pain for 2 years. It is noted that the Veteran was seeking treatment on that occasion (as opposed to a compensation examination) meaning he has a great incentive to provide accurate information in an effort to obtain the best care possible. Additionally, in September 2013 the Veteran reported in a VA treatment note that he had been treated in service for his shoulder pain, while in August 2018 he specifically denied injury and treatment for his right shoulder in service. As such, the Board finds that the Veteran is not credible to report having experienced symptoms since service or during the presumptive period. As a result, the Board gives more probative weight to competent medical evidence and combined opinions of record. Specifically, the June 2021 examiner explained why the evidence suggested that the Veteran's right shoulder condition was attributable to his work in a papermill for many years after military service, rather than to the rigors of military service. Service connection for a right shoulder condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right shoulder condition and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The June 2021 VA examiner opined that the Veteran's right shoulder disability is not at least as likely as not related to an in-service injury, event, or disease. The rationale was focused on the lack of complaints and treatment for a right shoulder condition until many years after discharge. Given that the Veteran did not report a specific injury to his shoulder and instead relied on overuse from physical fitness training, and his other reports of the cause and onset of his condition have been inconsistent, it was reasonable for the examiner to not rely on these statements. While the Veteran believes his right shoulder condition is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, the Board finds that there is insufficient evidence of record to grant service connection for a right shoulder condition. This disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There is no evidence of record to establish that his right shoulder condition was related to an in-service injury, event, or disease, including participation in physical fitness testing. Consequently, service connection for a right shoulder condition is denied. Service connection for right knee condition The Veteran seeks service connection for a right knee condition which he attributes to his military service. Service treatment records are silent for complaints of a right knee pain. An August 1977 treatment note shows that the Veteran complained of a lump on his knee for several weeks, however, there is no indication as to what knee was affected. At a June 1978 Medical Examination, no knee issues were noted. On the Veteran's Report of Medical History from June 1978, he denied trick or locked knees and did not report any knee pain. Of note, he did report left shoulder pain. In January 2021, the Veteran was afforded a VA examination where he was diagnosed with right knee joint osteoarthritis. He reported to the examiner that he felt that the intense focus and encouragement to continue ranking highly in physical tests contributed to the wearing of his body. Additionally, he reported that even in extreme cold temperatures during service he needed to do exercises where his knees were directly on the ground. The examiner opined that the Veteran's right knee condition is less likely than not (less than 50 percent probability) due to his active service. The examiner indicated that there was no evidence seen in service treatment records of right knee complaints in or within one year from discharge from active duty. Although the Veteran's account indicates he had right knee issues began during service, there is an absence of records during and in the immediate years for right knee complaints. Furthermore, the examiner noted that the Veteran's work in a paper mill for more than 17 years, which likely caused significant physical strain, was more likely to have significantly impacted his knee versus his approximate three years of active duty. The examiner also noted that March 2012 x-rays show that there was no evidence of either degenerative joint disease or osteoarthritis. An addendum opinion was obtained in June 2021 where the examiner again provided a negative nexus opinion. The examiner opined that it was less likely than not that the Veteran's right knee disability had its clinical onset during service or was due to an event or incident of the Veteran's period of active service because there was no mention of right knee issues during active-duty period nor within one year of service. VA treatment records from January 1998 show that the Veteran was in a car accident, and reported hurting his right knee. A September 2010 private treatment note shows that the Veteran sought treatment for a three-week history of his right knee being painful and swollen. He did not report any trauma at that time but indicated that he has had some knee problems intermittently in the past and had an x-ray in February 2008 that showed mild degenerative changes. An x-ray of the Veteran's knee showed minor degenerative change to the right knee joint which was unchanged from the prior examination in February 2008. The x-ray noted no evidence of fracture or malalignment. The Veteran has a current diagnosis of right knee joint osteoarthritis as evidenced by January 2021 VA Examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, this disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran's first complaint of right knee pain occurred in January 1998, which he attributed to a car accident. In September 2010, 32 years after his separation from service and decades outside of the applicable presumptive period, the Veteran reported knee swelling which he indicated had begun three weeks prior. The Veteran's statements themselves regarding his right knee condition onset date are not found to be sufficiently credible to establish service connection because the statements through the years have been inconsistent as to when the disability started. For example, in a September 2010 VA treatment note the Veteran reported swelling to his knee that started three weeks prior. At a March 2012 VA examination, the Veteran indicated he could not recall having problems with his knee during service. In August 2014, at a Decision Review Officer (DRO) hearing, the Veteran reported that his knee pain started in 1977. At an August 2018 VA examination, the Veteran reported his knee pain began during basic training (approximately 1975). At a January 2021 VA examination, the Veteran denied right knee injury or treatment during service. It is noted again that the instances where the Veteran was seeking treatment (as opposed to a compensation examination), he would have a greater incentive to provide accurate information in an effort to obtain the best care possible. Given the various onset dates provided, both at VA examinations and in treatment records, the Board finds that the Veteran is not credible to report having experienced symptoms since service or during the presumptive period. The Board gives more probative weight to competent medical evidence and combined opinions of record, which establishes that his knee symptoms were instead attributable to his work in a papermill for many years after military discharge. Service connection for a right knee condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right knee condition and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The June 2021 VA examiner opined that the Veteran's right knee disability is not at least as likely as not related to an in-service injury, event, or disease because there is no mention of right knee issues during his active-duty period to support that he had right knee issues during service. Given that the Veteran did not report a specific injury to his knee and instead relied on overuse from physical fitness training, coupled with the fact that his other reports of the cause and onset of his condition have been inconsistent, it was reasonable for the examiner to not rely on these statements. While the Veteran believes his right knee condition is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, the Board finds that there is insufficient evidence of record to grant service connection for a right knee condition. This disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There is no evidence of record to establish that his right knee condition was related to an in-service injury, event, or disease, including participation in physical fitness testing. Consequently, service connection for a right knee condition is denied. Service connection for right arm condition, also claimed as right elbow condition The Veteran seeks service connection for a right elbow condition. An October 2, 1975 Report of Medical Examination is silent for right elbow issues. An October 15, 1975 service treatment note indicates that the Veteran's right arm was "crooked" and indicated a slight deformity. This was just 13 days after his entrance examination. No injuries to the right elbow were noted during this period. At a consultation, the medical officer indicated that the Veteran had a developmental deformity to the right forearm and was probably congenital or developmental. No discharge was recommended due to this condition. In a June 1978 Report of Medical History, the Veteran denied swollen or painful joints, broken bones, arthritis, and painful or trick shoulder or elbow. A physical examination found no upper extremity issues other than bursitis of the left shoulder. On a January 1982 Report of Medical History, the Veteran again denied swollen or painful joints, broken bones, arthritis, and painful or trick shoulder or elbow while reporting other conditions. Of note, no physical impairments were noted by the physical examination in 1982. In January 2021, the Veteran was afforded a VA examination where he was diagnosed with right post-traumatic arthritis and a right elbow strain with reduced extension and supination. The Veteran reported that he was a "super jock" and was always at peak rankings in terms of physical activity. In addition to the already strenuous physical training, long ruck marches with heavy sacks, handling of heavy equipment, the Veteran indicated he felt that the intense focus and encouragement to continue ranking highly in physical tests in order to more quickly increase rank contributed to his right elbow issues. The Veteran indicated that over time the range of motion of his right elbow has significantly decreased. He did not report injury or symptoms during service. A June 2021 addendum opinion opined that the Veteran's right elbow disability clearly and unmistakably existed before his active-duty service because there was clear documentation from October 1975 after seeing primary care manager and was referred to orthopedics for right arm deformity which was diagnosed as congenital. This diagnosis was at the time of the start of his active duty without note of injury within those first two weeks of active duty. The examiner indicated that the Veteran's right elbow condition was less likely than not (less than 50 percent probability) aggravated by the Veteran's service. The examiner noted that the Veteran did not seek treatment for right elbow issues again until 1978, and that it was more likely that his work at the paper mill aggravated his right elbow. Additionally, the examiner indicated that it is less likely than not (less than 50 percent probability) that the Veteran's right elbow condition was incurred within one year of discharge as there was no mention at the end of his active duty to suggest having right elbow issues. VA treatment notes from April 2011 show that the Veteran complained of right elbow pain and swelling since the previous Sunday, starting in his shoulder and worked down to his elbow. The Veteran indicated that he has not been able to reach full extension or pronation of his elbow since childhood. At the time, he was diagnosed with olecranon bursitis, and the physician indicated his elbow discomfort was likely secondary to his bursitis. No trauma was noted and the note indicates that his limited range of motion is symmetrical and likely genetic. The Veteran did not report any injury. A July 2011 VA treatment note reported that the Veteran complains of occasional pain and swelling in both elbows and indicated that he did not recall any history of a specific injury to either elbow. The Veteran is seeking service connection for a right elbow condition. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, no right arm or right elbow condition was not noted on any of the Veteran's enlistment physical. As such, the presumption of soundness attaches to his claim. Service treatment records from October 15, 1975, 13 days into his active-duty service, the Veteran was evaluated for a right arm deformity. At a consultation, the physician indicated that the Veteran had a developmental deformity to the right forearm and was probably congenital or developmental. No discharge was recommended due to this condition. No injuries to the right elbow were noted before this evaluation. In an April 2011 VA treatment note, the Veteran reports that he has not been able to reach full extension or pronation since childhood. The assessment at the time indicated that his limited range of motion is symmetrical and likely genetic. Given that both the Veteran and the in-service physician have acknowledge that his elbow condition has existed from birth and is likely congenital, the Board concludes that the evidence clearly and unmistakably establishes that the condition existed prior to service. With regard to the second prong, service treatment records fail to describe any treatment for the Veteran's right elbow, despite treatment for other orthopedic complaints. It is noted that this conclusion is not based on the absence of evidence, but rather on the affirmative evidence that is of record. Here, the Veteran on multiple occasions, in 1978 and 1982, specifically denied any elbow problems. This is relevant in that he did not just rotely complete the medical history survey, as he clearly marked conditions that were bothering him at that time. Moreover, he did not seek treatment for any elbow problems in service. This is noteworthy in that the Veteran sought treatment on a number of occasions for left shoulder problems, suggesting that he was in fact willing to seek medical care for the orthopedic pain and impairment. Finally, decades after service, when first seeking treatment for elbow problems, the Veteran indicated a relatively recent onset of the problems. As such, it is not shown that the right elbow condition manifested in service, and as such there is no need to discuss the presumption of soundness. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). As the Court stated in Gilbert: "The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof." Id. In other words, even if the presumption of soundness is not rebutted, the current disability and nexus elements of service connection must still be satisfied in order to establish entitlement to service connection benefits. Regardless, even if it were shown that a right elbow condition manifested during service, by virtue of the Veteran's post-service filing of a claim (noting that in his service treatment records the Veteran denied elbow problems when asked), the fact remains that the examiner found that Veteran's right elbow was less likely than not aggravated by the Veteran's service given the lack of complaints for injuries or symptoms. The Veteran did not report elbow issues post-service until 2011, at which time he reported the elbow problems had begun four days prior to his complaint of pain, and decades after discharge. As such, the Board concludes that the evidence of record clearly and unmistakably shows no permanent aggravation of the condition. The Board is aware of the Veteran's lay contentions as to the onset and progress of his right elbow osteoarthritis. The Veteran is certainly competent to observe symptoms relating to his right elbow. However, he has not been shown to possess the medical training or credentials needed to ascertain whether such symptoms equate to a disability or the date of onset of such disability. Specifically, 38C.F.R. §4.71a, Diagnostic Code 5003 indicates that arthritis is to be shown by x-ray, signifying that it cannot be diagnosed by a lay individual. As such, the Veteran's lay contentions lack probative value, particularly in comparison to the examination evidence noted above. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the memorandum decision suggested the need to further consider the Veteran's lay statements, this has been done, but it has been explained in multiple places in the record why the Veteran was not felt to be credible in relating the onset of his orthopedic conditions to his military service. Accordingly, the criteria for service connection have not been met and the Veteran's claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.