Citation Nr: 21072492 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-28 111A DATE: December 3, 2021 ORDER Service connection for a right shoulder condition is denied. Service connection for a bilateral knee condition is denied. REMANDED The issue of a disability rating more than 10 percent since September 23, 2016, for a lumbar spine disability is remanded. The issue of service connection for a nervous disorder is remanded. FINDINGS OF FACT 1. There is no probative medical evidence indicating the Veteran has a current right shoulder condition. 2. There is no probative medical evidence that indicates the Veteran has a current right or left knee condition that was incurred in service or diagnosed within the presumptive period after discharge. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right shoulder condition have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria to establish service connection for a bilateral knee condition have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1974 to December 1978. In August 2021, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. There is no evidence that the Veteran's claimed right shoulder and bilateral knee conditions are related to his active-duty service. A VA medical examination is thus not warranted under 38 U.S.C. § 5103A (d) (2) (B) for these conditions. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (observing that "[s]Ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case"). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has satisfied its duty to notify and assist and the Board may proceed with appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). "Active military, naval, or air service" includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active duty for training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Active military, naval, or air service also includes any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Inactive duty training means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, 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, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive 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. The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person or person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right shoulder injury The Veteran contends he has a right shoulder condition due to a fall during his service in the Army Reserves. Service treatment records do not indicate any complaints, diagnoses, or treatments for a right shoulder condition in service. The Veteran's October 1974 report of medical history at enlistment indicates he denied painful or "trick" shoulder or elbow. His clinical upper extremities and musculoskeletal evaluations were normal. His November 1978 clinical upper extremities and musculoskeletal evaluations at separation were normal. In a March 2017 statement, the Veteran's fellow service member J.G. reported that the Veteran fell on his left shoulder during their Reservist duty. J.G. recalled that the Veteran later told him that this fall resulted in a broken left collar bone. J.G.'s statement does not address any injury to the Veteran's right shoulder. VA treatment records indicate the Veteran reported occasional left shoulder pain with prolonged sitting, but that the Veteran had not reported any right shoulder complaints since joining the VA medical system in October 2016. At an August 2021 Board hearing, the Veteran alleged breaking his collar bone when he fell on his left shoulder during his Reserve training, and that he had self-treated his right shoulder pain since the injury with exercises and over-the-counter medication. He also reported receiving treatment from his wife, a former licensed practical nurse, and at a medical clinic where she worked that has since gone out of business. The preponderance of the evidence is finding service connection for a right shoulder condition. There is no probative medical evidence indicating the Veteran has a current right shoulder condition. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim."). The Veteran has continuously asserted throughout the appeal that he has a current right shoulder condition that is a result of an injury to his left shoulder while on Reservist duty. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of any current right shoulder condition. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Shoulder conditions require specialized training for determinations as to diagnosis and causation and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current right shoulder symptomatology and its relationship to his service. In addition, the record contains inconsistent statements regarding the onset of symptoms and treatment that minimize the probative weight of the Veteran's observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider multiple factors, including self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). The Veteran has produced no evidence of complaints, diagnoses, or treatments for right shoulder pain since service other than his Board testimony. Furthermore, he has not reported right shoulder symptomatology to any VA medical examiner since joining the VA medical system in October 2016. Although he has occasionally reported left shoulder pain to VA examiners and medical care providers, there is no mention in his VA medical records of right shoulder symptoms. He has produced no evidence of complaints of occupational or functional limitations due to his asserted right shoulder pain. In fact, April 2017 VA treatment records show the Veteran reported being able to lift weights without endorsing any shoulder pain. The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a bilateral knee disorder The Veteran contends the physicality of his active service caused his current bilateral knee pain condition. Service treatment records do not indicate any complaints, diagnoses, or treatments for a right or left knee condition in service. The Veteran's October 1974 report of medical history at enlistment indicates he denied "trick" or locked knees. His clinical lower extremities and musculoskeletal evaluations were normal. His November 1978 clinical lower extremities and musculoskeletal evaluations at separation were normal. October 2016 VA treatment records indicate the Veteran reported "occasional" bilateral knee pain. Subsequent VA treatment records do not show a diagnosis of a current right or left knee disorder beyond chronic bilateral knee pain. In a February 2017 statement, the Veteran asserted that the physical aspects of his active service in the Marine Corps contributed to a current bilateral knee condition, and that he experienced pain, discomfort, and limitations in walking, standing, lifting, bending, and performing exercise since service. At an August 2021 Board hearing, the Veteran reported a history of medical treatment by his wife, a licensed practical nurse, and at the medical clinic where she worked. The Veteran explained that since the clinic had closed medical records were no longer available to show treatment. He also testified that he could "never" pass a physical training test during his time in the Reserves because he could not run well due to his bilateral knee condition. He also reported a history of self-employment with minimal physical labor requirements. The preponderance of the evidence is against finding service connection for a bilateral knee condition. There is no probative medical evidence that indicates the Veteran has a current right or left knee condition that was incurred in service or diagnosed within the presumptive period after discharge. The Veteran has continuously asserted throughout the appeal that he has a current bilateral knee condition that is a result of active-duty service in the Marine Corps. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current bilateral knee symptomatology and its relationship to his service. In addition, the record contains inconsistent statements regarding the onset of symptoms and treatment that minimize the probative weight of the Veteran's observations of symptoms. Caluza v. Brown, supra. The Veteran has produced no record of any complaints, diagnoses, or treatment for bilateral knee pain prior to joining the VA medical system in October 2016 other than his Board testimony. Furthermore, the Veteran reported "occasional" bilateral knee pain at his initial October 2016 VA medical evaluation. Since joining the VA medical system, the Veteran has not reported any occupational or functional impairment due to his reported chronic knee pain, nor has he agreed to any imaging to assist medical providers diagnose and treat his reports of occasional bilateral knee pain. The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a disability rating more than 10 percent since September 23, 2016, for a lumbar spine disability. 2. Entitlement to service connection for a nervous disorder. The matters are REMANDED for the following action: 1. The Board has determined that additional development is required, and remands both claims for the following: 2. Obtain all VA medical records and associate them with the claims file. 3. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the current severity of his lumbar spine disability. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, INCLUDING RELEVANT IMAGING STUDIES, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. * The examiner must test active and passive range of motion and provide weight-bearing and non-weight-bearing information, or detail why such testing cannot be performed. Range of motion should be expressed in terms of degrees for active AND passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. * IF THE EXAMINATION IS NOT CONDUCTED DURING A FLARE-UP OR AFTER REPEATED USE, the examiner MUST obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the veteran, and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). * The examiner's comments must include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, or incoordination. Any determination concerning this functional loss or loss during flare-ups should be expressed in degrees of additional range of motion loss. If there is pain during range of motion testing, the examiner MUST state the degrees where the pain starts. * In summary, the following five items should be described in degrees 1) active range of motion 2) passive range of motion 3) where the pain starts during active range of motion 4) where the pain starts during passive range of motion, and 5) range of motion during flare-ups (which MUST be estimated if the examination is not conducted during a flare-up). 4. Schedule the Veteran for an appropriate VA medical examination consistent with VA rating protocols, to determine the nature and etiology of any current neurological disorder, to include bulbar palsy. The entire claims file, including a copy of the Remand, must be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations must be accomplished, and all clinical findings must be reported in detail. An explanation must be given for all opinions and conclusions rendered. The VA examiner must provide the following opinions: a) Were any of the Veteran's current neurological disorders, to include bulbar palsy, incurred in service or caused by an in-service injury, event, or illness? b) Given the medical evidence in this case, your experience and knowledge, and the state of medical science, is the Veteran's account of the development of his bulbar palsy disorder consistent with the clinical findings? Please fully explain your opinion. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner's attention is drawn to the following: * Military personnel records indicate the Veteran was stationed at El Toro, California, from February 1977 to December 1978. See "STR Medical," received October 12, 2016, page 20 of 45. * A simple internet search shows that the Marine Corps air base at El Toro, California, was placed on the Federal Superfund National Priorities List in 1990 due to groundwater contamination due to the presence of hazardous substances in the soil and groundwater. * Although VA has not recognized that certain diseases shall be presumed to be the result of exposure to contaminants for veterans who served at El Toro, California, Marine Corps air base, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). * September 2016 statement when the Veteran reported experiencing recurring shaking in his arms, hands, and legs since service, and that he was stationed at El Toro, California, for two years. See "VA 21-4138 Statement in Support of Claim," received September 27, 2016. * August 2021 Board testimony, when the Veteran testified that he drank tap water throughout his service at El Toro, California, and that both he and his wife experience similar nervous tremors. See "Hearing Transcript," received August 4, 2021. A thorough explanation must be provided for the opinion(s) rendered. If the examiner cannot provide the requested opinion(s) without resorting to speculation, s/he must expressly indicate this and provide supporting rationale as to why the opinion(s) cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 5. Following the review and any additional development deemed necessary, readjudicate the claims. If the RO does not grant the claims, issue a supplemental statement of the case (SSOC), and return the claims to the Board. The Veteran may submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON THE NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.